| |
[p.31]
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 October 1998, the Government of the Federal Republic of Nigeria
(hereinafter called "Nigeria") filed in the Registry of the Court an
Application instituting proceedings dated 21 October 1998, whereby,
referring to Article 98 of the Rules of Court, it requested the Court to
interpret the Judgment delivered by the Court on 11 June 1998 in the case
concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria)(Preliminary Objections). [p 33]
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Government of the Republic of Cameroon
(hereinafter called "Cameroon") by the Deputy-Registrar. At the same time,
the Parties were informed that the Senior Judge, acting pursuant to Articles
13, paragraph 3, and 98, paragraph 3, of the Rules of Court, had fixed 3
December 1998 as the time-limit for Cameroon to submit its written
observations on Nigeria's request for interpretation.
3. Pursuant to Article 40, paragraph 3, of the Statute, all States entitled
to appear before the Court were informed of the Application.
4. On 13 November 1998, within the time-limit fixed, the Government of
Cameroon filed in the Registry its written observations on the Nigerian
request.
5. In light of the dossier thus submitted to it, the Court, considering that
it had sufficient information on the positions of the Parties, did not deem
it necessary to invite them "to furnish further written or oral
explanations", as Article 98, paragraph 4, of the Rules allows it to do.
6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them availed itself of the right conferred by Article
31, paragraph 3, of the Statute to proceed to choose a judge ad hoc to sit
in the case: Nigeria chose Mr. Bola Ajibola and Cameroon Mr. Keba Mbaye.
*
7. In the course of the proceedings the Parties presented the following
submissions:
On behalf of Nigeria:
in the Application:
"On the basis of the foregoing considerations, Nigeria requests the Court to
adjudge and declare that the Court's Judgment of 11 June 1998 is to be
interpreted as meaning that:
so far as concerns the international responsibility which Nigeria is said to
bear for certain alleged incidents:
(a) the dispute before the Court does not include any alleged incidents
other than (at most) those specified in Cameroon's Application of 29 March
1994 and Additional Application of 6 June 1994;
(b) Cameroon's freedom to present additional facts and legal considerations
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994; and
(c) the question whether facts alleged by Cameroon are established or not
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994."
On behalf of Cameroon:
in the written observations:
"On these grounds,
Having regard to the request for interpretation submitted by the Federal
Republic of Nigeria dated 21 October 1998, the Republic of Cameroon makes
the following submissions: [p 34]
1. The Republic of Cameroon leaves it to the Court to decide whether it has
jurisdiction to rule on a request for interpretation of a decision handed
down following incidental proceedings and, in particular, with regard to a
judgment concerning the preliminary objections raised by the defending
Party;
2. The Republic of Cameroon requests the Court:
- Primarily:
To declare the request by the Federal Republic of Nigeria inadmissible; to
adjudge and declare that there is no reason to interpret the Judgment of 11
June 1998;
- Alternatively:
To adjudge and declare that the Republic of Cameroon is entitled to rely on
all facts, irrespective of their date, that go to establish the continuing
violation by Nigeria of its international obligations; that the Republic of
Cameroon may also rely on such facts to enable an assessment to be made of
the damage it has suffered and the adequate reparation that is due to it."
***
8. The Court will first address the question of its jurisdiction over the
request for interpretation submitted by Nigeria. Nigeria states that, in the
case concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), Cameroon alleged that Nigeria bore international
responsibility "for certain incidents said to have occurred at various
places at Bakassi and Lake Chad and along the length of the frontier between
those two regions".
Cameroon is also said to have "made allegations involving a number of such
incidents in its Application of 29 March 1994, its Additional Application of
6 June 1994, its Observations of 30 April 1996 . . . and during the oral
hearings held from 2 to 11 March 1998". According to Nigeria, Cameroon had
"also said that [it] would be able to provide information as to other
incidents on some unspecified future occasion". Nigeria contends that the
Court's Judgment of 11 June 1998 does not specify "which of these alleged
incidents are to be considered further as part of the merits of the case".
Thus Nigeria maintains that the Judgment "is unclear [as to] whether
Cameroon was entitled at various times, after the submission of its Amended
Application, to bring before the Court new incidents".
Nigeria further emphasizes "the inadmissibility of treating as part of the
dispute brought before the Court by the Applications of March and June 1994
alleged incidents occurring subsequently to June 1994". Cameroon, it is
said, is entitled in this case to submit, in due course, only "additional
facts in amplification of incidents previously adverted to"; it was not
entitled to submit "entirely new and discrete incidents which are made the
subject of new claims of responsibility". The Judgment of 11 June 1998 was
accordingly to be interpreted as meaning "that so far as concerns the
international responsibility [of] Nigeria . . . the dispute [p 35] before
the Court does not include any alleged incidents other than (at most) those
specified in [the] Application . . . and Additional Application".
9. For its part, Cameroon recalls in its written observations on Nigeria's
request for interpretation that, in its Judgment of 11 June 1998, the Court
rejected seven of the preliminary objections of lack of jurisdiction and
inadmissibility raised by Nigeria and stated that, in the circumstances of
the case, the eighth objection was not of an exclusively preliminary
character; in that Judgment, the Court further recognized that it had
jurisdiction to adjudicate upon the dispute and found that the Application
filed by the Republic of Cameroon on 29 March 1994, as amended by the
Additional Application of 6 June 1994, was admissible. Cameroon declares
that the Parties "do not have to 'apply' such a judgment; they only have to
take note of it". While leaving the question to the appreciation of the
Court, it states that "there are very serious doubts about the possibility
of bringing a request for interpretation of a judgment concerning
preliminary objections".
*
10. Article 60 of the Statute provides: "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." This provision
is supplemented by Article 98 of the Rules of Court, paragraph 1 of which
provides: "In the event of dispute as to the meaning or scope of a judgment
any party may make a request for its interpretation . . ."
By virtue of the second sentence of Article 60, the Court has jurisdiction
to entertain requests for interpretation of any judgment rendered by it.
This provision makes no distinction as to the type of judgment concerned. It
follows, therefore, that a judgment on preliminary objections, just as well
as a judgment on the merits, can be the object of a request for
interpretation. However,
"the second sentence of Article 60 was inserted in order, if necessary, to
enable the Court to make quite clear the points which had been settled with
binding force in a judgment, . . . a request which has not that object does
not come within the terms of this provision." (Interpretation of Judgments
Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series
A, No.13, p. 11.)
In consequence, any request for interpretation must relate to the operative
part of the judgment and cannot concern the reasons for the judgment except
in so far as these are inseparable from the operative part.
11. In the case concerning the Land and Maritime Boundary between Cameroon
and Nigeria, Nigeria had put forward a sixth preliminary objection "to the
effect that there is no basis for a judicial determination that Nigeria
bears international responsibility for alleged frontier incursions". In its
Judgment of 11 June, the Court summarized Nigeria's position on this point:
"Nigeria contends that the submissions of Cameroon do not meet the standards
required by Article 38 of the Rules of Court and general principles of law
regarding the adequate presentation of facts . . . What Cameroon has
presented to the Court does not give Nigeria the knowledge which it needs .
. . Similarly, in Nigeria's view, the material submitted is so sparse that
it does not enable the Court to carry out fair and effective judicial
determination . . . While Nigeria acknowledge[d] that a State has some
latitude in expanding later what it ha[d] said in its Application and in its
Memorial, Cameroon [was] said to be essentially restricted in its
elaboration to the case as presented in its Application" (I.C.J. Reports
1998, p. 317, para. 96).
In the operative part of its Judgment of 11 June 1998, the Court "rejects
the sixth preliminary objection." The reasons for this are set out in
paragraphs 98 to 101 of the Judgment. These deal in detail with Cameroon's
rights as regards the presentation of "facts and legal considerations" that
it might wish to put forward in support of its submissions seeking a ruling
against Nigeria (ibid., p. 318, para. 99). These reasons are inseparable
from the operative part of the Judgment and in this regard the request
therefore meets the conditions laid down by Article 60 of the Statute in
order for the Court to have jurisdiction to entertain a request for
interpretation of a judgment.
**
12. The Court will now examine the admissibility of the request of Nigeria.
The question of the admissibility of requests for interpretation of the
Court's judgments needs particular attention because of the need to avoid
impairing the finality, and delaying the implementation, of these judgments.
It is not without reason that Article 60 of the Statute lays down, in the
first place, that judgments are "final and without appeal". Thereafter, the
Article provides that in the case of a "dispute as to the meaning or scope
of the judgment", it shall be construed by the Court upon the request of any
party. The language and structure of Article 60 reflect the primacy of the
principle of res judicata. That principle must be maintained. The Court
adheres to what it has previously held, namely that
"the real purpose of the request must be to obtain an interpretation of the
judgment. This signifies that its object must be solely to obtain
clarification of the meaning and the scope of what the Court has decided
with binding force, and not to obtain an answer to questions not so decided.
Any other construction of Article 60 of the Statute [p 37] would nullify the
provision of the article that the judgment is final and without appeal."
(Request for Interpretation of the Judgment of 20 November 1950 in the
Asylum Case, Judgment, I.C.J. Reports 1950, p. 402.)
In its Judgment on the Application for Revision and Interpretation of the
Judgment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya)(Tunisia v. Libyan Arab Jamahiriya), the
Court similarly held that "it is however a condition of admissibility of a
request for interpretation . . . that the real purpose of the request be to
obtain an interpretation - a clarification of that meaning and scope (I.C.J.
Reports 1985, p. 223, para. 56)."
13. In the present case, the Court would initially recall what were
Cameroon's submissions with regard to the alleged frontier incidents in the
case concerning the Land and Maritime Boundary between Cameroon and Nigeria.
In its Application as amended by its Additional Application, Cameroon
complained in 1994 "of grave and repeated incursions of Nigerian groups and
armed forces into Cameroonian territory all along the frontier between the
two countries". It further requested the Court to adjudge that the
"internationally unlawful acts" alleged to have occurred in the Bakassi and
Lake Chad regions involve the responsibility of Nigeria.
In its Memorial of 16 March 1995, Cameroon developed these submissions by
emphasizing that, as a result of the "internationally unlawful acts" set out
in pages 561 to 648 of the Memorial, Nigeria had incurred international
responsibility. This document dealt not only with incidents in the Bakassi
and Lake Chad regions, but also with those in other frontier areas and in
particular at Tipsan. Then, in its observations of 30 April 1996, Cameroon
confirmed its previous submissions and in Annex I to those observations
listed incidents relating to 42 localities situated along the length of the
frontier. Some of the incidents mentioned in Cameroon's Memorial and
observations had occurred after the date of the Additional Application.
14. To these submissions, Nigeria raised its sixth objection to
admissibility. It argued that Cameroon's initial Application as amended
restricted itself to vague allegations as to "the dates, circumstances and
precise locations of the alleged incursions and incidents". It added that
this Application "made no claim as to Nigeria's international responsibility
in relation to acts occurring outside Bakassi and Lake Chad". It considered
that Cameroon must "essentially confine itself to the facts . . . presented
in its Application". From this it concluded that any subsequent attempt to
enlarge the scope of the case was inadmissible and that "additions"
presented subsequently with a view to establishing Nigeria's responsibility
must be disregarded. [p 38]
15. By its Judgment of 11 June 1998, the Court rejected Nigeria's sixth
preliminary objection. The Court explained that "the decision on Nigeria's
sixth preliminary objection hinges upon the question of whether the
requirements which an application must meet and which are set out in Article
38, paragraph 2, of the Rules of Court are met" (I.C.J. Reports 1998, p.
318, para. 98). The Court added that the term "succinct" used in Article 38,
paragraph 2, of the Rules ("[the Application] shall also specify the precise
nature of the claim, together with a succinct statement of the facts and
grounds on which the claim is based") does not mean "complete" and does not
preclude later additions to the statement of the facts and grounds on which
the claim is based. The Court also found that the latitude of an applicant
State, in developing what it has said in its application, is not strictly
limited, as suggested by Nigeria. The Court underlined, inter alia, that
that conclusion cannot be drawn from the Court's pronouncement on the
importance of the point of time of the submission of the application as the
critical date for the determination of its admissibility as "these
pronouncements do not refer to the content of applications (Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, 1998, para. 43; and Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, 1998, para. 44)" (ibid., p. 318, para.
99). The Court wishes to reiterate that the question of the conditions for
the admissibility of an application at the time of its introduction, and the
question of the admissibility of the presentation of additional facts and
legal grounds, are two different things. The Court indicated, in its
Judgment of 11 June 1998, that the limit of the freedom to present
additional facts and legal considerations is that there must be no
transformation of the dispute brought before the Court by the application
into another dispute which is different in character. Whether that is the
case ultimately has to be decided by the Court in each individual case in
which the question arises. With regard to Nigeria's sixth preliminary
objection, the Judgment of 11 June 1998 has concluded that "in this case,
Cameroon has not so transformed the dispute" (ibid., p. 319, para. 100) and
that Cameroon's Application met the requirements of Article 38 of the Rules.
Thus, the Court made no distinction between "incidents" and "facts"; it
found that additional incidents constitute additional facts, and that their
introduction in proceedings before the Court is governed by the same rules.
In this respect, there is no need for the Court to stress that it has and
will strictly apply the principle of audi alteram partem.
16. It follows from the foregoing that the Court has already clearly dealt
with and rejected, in its Judgment of 11 June 1998, the first of the three
submissions presented by Nigeria at the end of its request for
interpretation, namely that
"(a) the dispute before the Court does not include any alleged incidents
other than (at most) those specified in Cameroon's Application of 29 March
1994 and Additional Application of 6 June 1994".
The Court would therefore be unable to entertain this first submission
without calling into question the effect of the Judgment concerned as res
judicata. The two other submissions, namely that
"(b) Cameroon's freedom to present additional facts and legal considerations
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994",
and that
"(c) the question whether facts alleged by Cameroon are established or not
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994",
endeavour to remove from the Court's consideration elements of law and fact
which it has, in its Judgment of 11 June 1998, already authorized Cameroon
to present, or which Cameroon has not yet put forward. In either case, the
Court would be unable to entertain these submissions.
It follows from the foregoing that Nigeria's request for interpretation is
inadmissible.
**
17. In view of the conclusions it has reached above, there is no need for
the Court to examine whether there is, between the Parties, a "dispute as to
the meaning or scope of the judgment" of 11 June 1998, as contemplated by
Article 60 of the Statute.
**
18. In its written observations, Cameroon seeks not only to have the Court
declare Nigeria's request for interpretation inadmissible, it also requests
that, in conformity with Article 97 of the Rules, Nigeria be charged with
the additional costs caused to Cameroon by Nigeria's request.
Article 64 of the Statute provides that "unless otherwise decided by the
Court, each party shall bear its own costs." This provision is given effect
by Article 97 of the Rules of Court. While anticipating the possi-[p
40]bility of exceptions, in circumstances which it does not specify, Article
64 confirms the
"basic principle regarding the question of costs in contentious proceedings
before international tribunals, to the effect that each party shall bear its
own". (Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 212,
para. 98).
The Court sees no reason to depart in the present case from the general rule
set forth in Article 64 of the Statute.
***
19. For these reasons,
The Court,
(1) by thirteen votes to three,
Declares inadmissible the request for interpretation of the Judgment of 11
June 1998 in the case concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
presented by Nigeria on 28 October 1998;
IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva,
Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans; Judge ad hoc Mbaye;
AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola.
(2) unanimously,
Rejects Cameroon's request that Nigeria bear the additional costs caused to
Cameroon by the above-mentioned request for interpretation.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-fifth day of March, one thousand nine
hundred and ninety-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
Federal Republic of Nigeria and the Government of the Republic of Cameroon.
(Signed) Stephen M. Schwebel,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.[p 41]
Vice-President Weeramantry, Judge Koroma, and Judge ad hoc Ajibola append
dissenting opinions to the Judgment of the Court.
(Initialled) S. M. S.
(Initialled) E. V. O.
[p 42]
Dissenting opinion of Vice-President Weeramantry
Judgment on preliminary objections - Applicability of Article 60 -
Interpretation may not be sought to seek revision or reopen matter which is
res judicata, or for gaining time - Substantial nature of Nigeria's request
- Need to differentiate between additional facts and additional incidents -
Need to differentiate between facts confirmatory of border disputes and
facts giving rise to international responsibility - Critical date for
ascertaining substance of Application - Obligation of Court to construe
"additional facts".
Though rarely invokedFN1, and subject to strict limitations, the right of a
party to seek clarification of a judgment, in the event of a dispute as to
its meaning and scope, is an important part of the scheme of rights
conferred on litigants by the Statute of the Court. In a sense, it carries
to its logical completion the process of adjudication of the matters that
come before the Court. Since I am in disagreement with some parts of the
Court's Judgment, I feel obliged, in view of the importance of the
principles involved, to set out the reasons for my disagreement in some
detail.
---------------------------------------------------------------------------------------------------------------------
FN1
Apart from the present Application, there have been four cases before the
Permanent Court of International Justice and the present Court: Treaty of
Neuilly, Article 179, Annex, Paragraph 4 (Interpretation), Judgment No. 3;
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów); Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case;
Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya).
---------------------------------------------------------------------------------------------------------------------
I agree with the Court's conclusion that the Application of Nigeria meets
the conditions laid down in Article 60 of the Statute of the Court for the
purpose of giving the Court jurisdiction to entertain Nigeria's request for
interpretation of the Judgment. However, for reasons which I shall set out,
I find that I am not in agreement with the Court's conclusion that the
request of Nigeria is inadmissible. It is my respectful view that Nigeria's
request is legally admissible, and should have been entertained by the
Court. The clarification, one way or the other, of the matter raised by
Nigeria would also have achieved the great practical advantage of placing
both Parties on clearer ground regarding the exact ambit of their future
conduct of these proceedings.
Before addressing this particular matter, I would like to associate myself
also with the Court's observation that "a judgment on preliminary [p 43]
objections, just as well as a judgment on the merits, can be the object of a
request for interpretation" (para. 10). Even in preliminary objections,
there may well be some aspect which genuinely needs clarification.
Considerations of fairness in the presentation of one's case, as well as the
right of a party to know precisely what the Court has decided, cannot be
overridden by the circumstance that the Court is operating within the
framework of its preliminary objections to jurisdiction. Such a technical
and procedural consideration cannot in principle deprive a party of its
substantive right to seek clarification of a matter so crucial to it as the
meaning of the Court's judgment. The principle of affording parties such
essential assistance as they are entitled to, in terms of the Court's
Statute and Rules, cannot vary, depending on whether the proceedings are in
regard to preliminary objections or at the stage of hearing upon the merits.
This is all the more so, having regard to the fact that Article 79,
paragraph 7, of the Rules expressly gives to the Court's decision on
preliminary objections the status and form of a judgment.
The Court must therefore consider, irrespective of the preliminary context
of the proceedings, the entitlement of a party to seek clarification of the
Court's judgment. In proceedings upon the merits as well as in preliminary
objections proceedings, there are of course certain clear limitations to the
entitlement of parties to resort to Article 60. They may not, for example,
under the guise of an application under Article 60, attempt to seek revision
of a judgment or reopen a matter which is already res judicata. Nor are
parties entitled, in any circumstances, to use a request for clarification
as a device for gaining time. All of these are to be discountenanced, and
the Court will in no way lend its assistance to such procedures.
The request by Nigeria for interpretation is, on the contrary, of a
substantial character affecting the very presentation of its case. Whether
Cameroon may present additional incidents, as opposed to additional facts,
in terms of the Judgment, seems to me to raise an important question which
needs clarification from the point of view of adequate preparation and
presentation of Nigeria's position. The question arises from the phraseology
in paragraph 99 of the Judgment which indicates that it has become an
established practice for States submitting an application to the Court to
receive the right to present "additional facts" and legal considerations.
The Court indicates in that paragraph that the limit of the freedom to
present such facts and considerations is that the result is not to transform
the dispute brought before the Court into another dispute which is different
in character.
It is necessary at this stage to advert to some of the background features
of this particular case.
Border incidents were alleged by Cameroon, both to show that the boundary is
in dispute, and as giving rise to international responsibility on the part
of Nigeria. The legal significance of these incidents thus falls [p 44] into
two distinct categories. Fresh incidents not pleaded initially may, on the
one hand, reinforce the contention that the boundary is in dispute. They
may, on the other hand, not involve a challenge to the boundary, but have
other implications. Indeed, the Court has expressly recognized this
possibility in paragraph 90 of its Judgment when it observed, "[h]owever,
not every boundary incident implies a challenge to the boundary." In the
event that such fresh incidents are relevant as the basis of a claim of
international responsibility, they would constitute fresh claims subsequent
to the joinder of issue between the parties. As separate claims, each claim
would be based upon its own particular facts, each claim would stand or fall
independent of the others, and each claim would give rise to a separate item
of relief distinct from the relief flowing from other and different
incidents which have already been pleaded.
When, therefore, there is a reference to subsequent facts, there are two
clear distinctions that need to be drawn, namely:
(1) the distinction, on the one hand, between proof of new facts supportive
of an incident already alleged, and new facts which constitute a new
incident in themselves; and
(2) the distinction between new facts which are confirmatory of the
existence of a boundary dispute and new facts which, in the form of new
incidents, are averred as the basis of claims of State responsibility.
Do "additional facts", as referred to in the Judgment, refer comprehensively
to all these categories of fact, irrespective of whether they are fresh
facts relating to incidents already pleaded, or fresh incidents; and
irrespective also of whether they are confirmatory of a border dispute or
the basis of claims of State responsibility?
These are the questions in respect of which Nigeria seeks clarification.
Bearing in mind that the object of a request for clarification, as stated in
Factory at Chorzów is "to enable the Court to make quite clear the points
which had been settled with binding force in a judgment"FN2, it seems to me
that this object is fully satisfied by Nigeria's request.
---------------------------------------------------------------------------------------------------------------------
FN2
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), P.C.I.J.,
Series A, No. 13, p. 11. See also Manley O. Hudson, The Permanent Court of
International Justice, 1972, Louis B. Sohn (ed.), p. 59.
---------------------------------------------------------------------------------------------------------------------
Certainly the phraseology used in the Judgment could be construed so as to
include fresh incidents, as opposed to fresh facts, and facts confirmatory
of a boundary dispute as well as facts unrelated to boundary disputes which
are the basis of claims of State responsibility. Since it can comprise facts
in all these categories which have occurred after the filing of pleadings,
there is a substantial difficulty facing the party that has to reply to
them. It is in respect of this difficulty that Nigeria seeks clarification.
[p 45]
The basic principle that the new facts should not transform the dispute into
one of a different character may well be transgressed by the presentation of
new facts which amount to new claims in the sense of being fresh claims of
international responsibility. There is therefore a substantive basis for
Nigeria's claim for clarification, in addition to the purely procedural one
discussed. It is to be noted in this connection that a substantial part of
Cameroon's MemorialFN3 deals with the international responsibility of
Nigeria, so that this represents an important aspect of Cameroon's case.
Chapter 6 of this Memorial is entirely devoted to "The Internationally
Wrongful Acts Attributable to Nigeria", and paragraph 6.01 of this Chapter
reads:
---------------------------------------------------------------------------------------------------------------------
FN3
Around 50 pages in Part II of the Observations on the Nigerian Preliminary
Objections, pp. 283-335.
---------------------------------------------------------------------------------------------------------------------
"The Federal Republic of Nigeria does not just formally dispute the frontier
between it and Cameroon; it is also engaged in various activities contrary
to general international law and to a variety of international legal
instruments to which it is a party."
A number of wrongful acts are then alleged, and the Memorial goes on to set
out Cameroon's entitlement to reparation for the damage caused to the
Republic of Cameroon and to its nationalsFN4. Each of these separate acts
would presumably be the subject of claims by the Republic for damages
sustained by itself as well as by its nationals. It would have to be
independently proved, and even though it is subsequent to the date of the
Application, Nigeria would have to marshal the necessary evidence to rebut
it, quite independently of such other evidence as it might have assembled to
rebut other and distinct claims arising from other and distinct incidents.
---------------------------------------------------------------------------------------------------------------------
FN4
Pp. 323-330.
---------------------------------------------------------------------------------------------------------------------
Consequently, the question whether Cameroon can, under the Court's Judgment,
add fresh incidents, each of which may ground a separate claim, is a
question of great moment to Nigeria. The question arises whether fresh
incidents giving rise to fresh claims for compensation are included within
the terms of the Court's Judgment.
If such incidents are permitted to be brought in, where does one draw the
line? Nigeria's Application seeks clarification of this issue, and I believe
Nigeria is entitled to seek that clarification.
Nigeria accepts that a party is entitled to present additional facts
relating to incidents already pleaded, even if those facts should be
discovered at a point of time subsequent to the filing of pleadings. They
still relate to the incidents alleged, and it is quite conceivable that
additional material [p 46] in support of the incidents alleged may be
uncovered at a later point of time.
This is a totally different situation from the entitlement of a party to
plead fresh incidents arising subsequent to its earlier pleadings on the
basis of which its opponent was brought to Court. While opening the door to
a variety of new allegations being made, and altogether fresh incidents
being referred to right up to the time of hearing, it raises questions also
as to the critical date for the purpose of ascertaining what constitutes a
party's claim. Does a party's claim consist of a situation as prevailing at
the date of the claim, or is it open to a party, without any limitation of
time, to keep averring and pleading fresh incidents that occur right up to
the date of hearing? If not right up to the date of hearing, what is the
cut-off point?
If such possibilities exist of expanding the content of an application after
the application has been filed, this would have major implications in
relation to procedure and the conduct of proceedings.
This Court held in LockerbieFN5 that the relevant date for determining the
admissibility of an application is the date of its filing. This was but a
specific application of the general rule that the critical date for
assessing a party's claim is its date of institution. It is by reference to
that date that it will be ascertained whether the applicant has a
justiciable and admissible claim, and it is by reference to that date that
the content of that claim will be determined. In regard to content, it will
no doubt be possible for a claim to be increased subsequent to institution
by such additions as claims to continuing damages or interest, which are
intrinsically linked to the claim already made, but it would at least prima
facie appear to be contrary to principle that new claims based on new
incidents and new evidence may be added, where these have arisen after that
date. Applicants, like plaintiffs, come into court on the basis that they
have a justiciable claim at the date of the application, and that is the
date by which, prima facie at any rate, their claim would be judged, whether
in regard to admissibility or content. The content of that complaint would
not ordinarily be capable of expansion by incidents arising after the date
of the application, unless the Court so indicates. A party is entitled, in
case of doubt, to know whether the Court's order gives such an indication.
---------------------------------------------------------------------------------------------------------------------
FN5
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, I.C.J. Reports 1992, para. 44; and
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), Provisional Measures, I.C.J. Reports 1992, para.
43.
---------------------------------------------------------------------------------------------------------------------
Another way of viewing this matter is to consider that a dispute must [p 47]
exist at the time of the application. That is the critical date for
examining both the existence and the substance of the dispute. If the facts
then existing were not sufficient to form the basis of a party's claim, that
insufficiency cannot be supplied by the introduction of later incidents to
shore up that insufficiency. A party's case must be tested as it was on the
date of filing of the application - and this is the critical date for
determining whether it has approached the Court with a cause of action which
is ripe for hearing.
This considerable practical distinction between the allegation of fresh
facts and the allegation of fresh incidents, and the equally significant
distinction between new facts confirmatory of a boundary dispute and new
facts forming the basis of State responsibility, entitle a party, in my
view, to know which category is comprehended within the terms of a Court
order allowing a party to present additional facts. If, as stated in
Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab
Jamahiriya)FN6, a condition of admissibility to a requirement for
interpretation is that the real purpose of the request should be to obtain
an interpretation, it is my view that this precondition to admissibility is
satisfied in the present case.
---------------------------------------------------------------------------------------------------------------------
FN6
I.C.J. Reports 1985, p. 223. See, also, Asylum case, I.C.J. Reports 1950, p.
402.
---------------------------------------------------------------------------------------------------------------------
I respectfully take the view, therefore, that Nigeria's request for
clarification is not inadmissible, and that Nigeria is entitled to ask the
Court for guidance on the question whether the terms of its Judgment
admitted the possibility of future incidents being urged by Cameroon. This
is clearly a dispute as to the meaning or scope of the Judgment, which the
Court is under an obligation to construe under Article 60 at the request of
a party seeking clarification.
In so concluding, I wish to stress that this view casts no reflection
whatsoever upon the phraseology adopted in the Judgment. A judgment, however
well crafted, could well embody phraseology which, in the context of a given
set of circumstances, may require some clarification. It is one of those
incidents of litigation which the judicial experience of ages has shown may
arise from time to time, and it is precisely for this reason that Article 60
of the Court's Statute made such clear provision for the right to
interpretation. Indeed, the Article was drafted so strongly as to cast the
Court's duty in imperative terms: "In the event of a dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any party" (emphasis added). I refer in this context to the
Factory at Chorzów case where the Permanent Court observed that where there
is a difference of opinion as to whether a particular point has or has not
been decided, this comes within the terms of the provision in question (Art.
60), "and the Court cannot avoid the duty incumbent [p 48] upon it of
interpreting the judgment in so far as necessary, in order to adjudicate
upon such a difference of opinion" (emphasis added). This is part of a
passage in the Factory at Chorzów JudgmentFN7 which, in the words of
Rosenne, has become the classic statement of the law on this pointFN8.
---------------------------------------------------------------------------------------------------------------------
FN7
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), P.C.I.J.,
Series A, No. 13, pp. 11-12.
FN8 Shabtai Rosenne, The Law and Practice of the International Court,
1920-1996, Vol. III, 1997, p. 1679.
---------------------------------------------------------------------------------------------------------------------
A difference of opinion has clearly arisen here, with Nigeria contending for
one interpretation, and Cameroon for another. Either interpretation can well
be attributed to the passage, thus giving rise to a genuine doubt regarding
the meaning and scope of the Judgment. In the interests of justice, parties
would be entitled, when a genuine doubt arises regarding the meaning or
scope of a judgment, to ask for clarification, and this is especially so
when such a construction is necessary for the proper conduct of their
proceedings and the proper presentation of their case.
For these reasons, I conclude that both in the interests of justice and in
terms of the express provisions of Article 60, Nigeria is entitled to seek a
construction of the Judgment by the Court.
(Signed) Christopher Gregory Weeramantry.
[p 49]
Dissenting opinion of Judge Koroma
Inadmissibility of request seemingly casuistic - Interpreting while not
interpreting the Judgment - Nigeria's submissions - Cameroon's submissions -
Existence of dispute - Acknowledgement of Court's jurisdiction - Relevant
provisions of Statute and Rules of Court - Need to comply with obligations
and Rules of Court in bringing matter before the Court - Absence of
clarification could lead to prolongation and confusion of pleading - Res
judicata not contested - "Interpretation" has not resulted in clarification
and definition of scope and meaning of Judgment - Request fulfils criteria
for interpretation - Court should have acceded to request.
1. I wish to state that I consider the reasons given in the Judgment for
finding the request inadmissible to be somewhat casuistic and, with regret,
I am unable to support the Judgment.
2. To have declared the request inadmissible after the Court had stated in
paragraph 15 of the Judgment that it made no distinction in its Judgment of
11 June 1998 between "incidents" and "facts" can be read as an oblique,
though, in my view, unsatisfactory "interpretation", which does not clarify
the meaning and scope of that Judgment. Regrettably, by taking this position
the Court would, on the one hand, seem to be trying to meet the object of
the request while at the same time rejecting the request itself.
3. Nigeria, in its Application requesting the Court to interpret its
Judgment of 11 June 1998, had sought the Court's clarification as to whether
Cameroon was entitled at various times, after the submission of its amended
Application, to bring before the Court new "incidents", following Cameroon's
allegations that Nigeria bore international responsibility "for certain
incidents said to have occurred at various places in Bakassi and Lake Chad
and along the length of the frontier between those two regions". Nigeria
also contended that Cameroon had made allegations involving a number of such
"incidents" in its Application of 29 March 1994, its Additional Application
of 6 June 1994, its observations of 28 April 1996, and during the oral
hearings held from 2 to 11 March 1998. It further pointed out that Cameroon
had also stated that it would be able to provide information as to other
"incidents" on some unspecified future occasion. It was also its contention
that the Court had not specified "which of these alleged incidents are to be
considered further as part of the merits of the case". Thus Nigeria
maintains that the Judgment "is unclear whether Cameroon was entitled at
various times, after the submission of its Amended Application, to bring
before the Court new incidents". [p 50]
4. Nigeria submitted that it would be inadmissible to treat as part of the
dispute brought before the Court by the Applications of March and June 1994
alleged incidents occurring subsequent to June 1994, and that Cameroon is
entitled in this case to submit only "additional facts in amplification of
incidents previously adverted to"; that it was not entitled to submit
"entirely new and discrete incidents which are made the subject of new
claims of responsibility". Nigeria further submitted that the Judgment of 11
June 1998 was accordingly to be interpreted as meaning that:
"so far as concerns the international responsibility [of] Nigeria . . . the
dispute before the Court does not include any alleged incidents other than
(at most) those specified in [the] Application . . . and Additional
Application".
5. Cameroon, in its written observations, inter alia, had contended that it
is entitled to rely on all facts, irrespective of their date, that go to
establish the continuing violation by Nigeria of its international
obligations, and had asked the Court to declare the request inadmissible.
Thus a dispute does exist regarding the scope and meaning of the Judgment,
and it would have been for the Court to declare that Cameroon is entitled to
use only pre-1994 incidents in support of its Application filed in 1994,
except, of course, if the Court felt that the scope and meaning of that
Judgment was not so limited.
6. In its Judgment the Court acknowledged its jurisdiction, pursuant to
Article 60 of the Statute of the Court supplemented by Article 98, paragraph
1, of the Rules of Court, to entertain the request for interpretation of the
Judgment. It thereafter proceeded to consider whether the request was
admissible, emphasizing that a condition of admissibility of such request is
that the real purpose should be to obtain an interpretation - a
clarification of the meaning and scope of the Judgment. After considering
the submissions, the Court concluded that it had made no distinction between
"incidents" and "facts" and found that "additional incidents"FN1 constituted
"additional facts"FN1, and that their introduction in proceedings before the
Court was governed by the same Rules.
---------------------------------------------------------------------------------------------------------------------
FN1 Emphasis
added.
---------------------------------------------------------------------------------------------------------------------
7. In my view, reference to future "incidents" cannot be the basis of an
application of which the Court has already been seised, since this would
suggest that at the time the application was filed such dispute did not
exist and, as such, would be inconsistent with the statutory obligations and
the proper procedure of the Rules of Court, and the Court should have so
stated. Put differently, an application instituting proceedings before the
Court cannot be based on "incidents" posterior to the filing of that
application, as this could lead to confusion and obscurity as to which
"incident" or "incidents" had informed those proceedings. [p 51]
8. It follows that, to the extent that the Court's Judgment of 11 June 1998
had laid itself open to the possibility of misconstruction and confusion
regarding its scope and meaning, it was both necessary and appropriate for
the Court to clarify and/or interpret that Judgment, so as to rid it of any
such misunderstanding and confusion. In this regard, where a party requests
the Court to clarify its judgment by stating which incident or incidents the
Court would consider as forming the basis of an application and to state the
relevant cut-off date, this would appear to me to meet the tests for
interpretation within the meaning of Article 60 of the Statute and Article
98, paragraph 1, of the Rules of Court. Consequently, while the Court's
statement in this Judgment that it made no distinction between "incidents"
and "facts" would appear to provide a measure of interpretation, it still
leaves open the possibility of misconstruction and confusion, which, if not
clarified, could even be at variance with the relevant provisions of the
Statute and Rules of Court.
9. Germane to this issue are Article 40 of the Statute and Article 38 of the
Rules of Court. Article 40, paragraph 1, of the Statute of the Court
provides as follows:
"1. Cases are brought before the Court, as the case may be, either by the
notification of the special agreement or by a written application addressed
to the Registrar. In either case the subject of the dispute and the parties
shall be indicated."
While Article 38 of the Rules of Court stipulates that
“1. When proceedings before the Court are instituted by means of an
application addressed as specified in Article 40, paragraph 1, of the
Statute, the application shall indicate the party making it, the State
against which the claim is brought, and the subject of the dispute.
2. The application shall specify as far as possible the legal grounds upon
which the jurisdiction of the Court is said to be based; it shall also
specify the precise nature of the claim, together with a succinct statement
of the facts and grounds on which the claim is based.”
10. Accordingly, and in terms of these provisions, in order for a party to
seise the Court of an application regarding a dispute, that dispute, as well
as the facts and grounds on which it is based, must already exist and be
specified.
11. The Court in paragraph 16 of the Judgment also stated that
"The two other submissions, namely that
'(b) Cameroon's freedom to present additional facts and legal considerations
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994; [p 52]
and
(c) the question whether facts alleged by Cameroon are established or not
relates (at most) only to those specified in Cameroon's Application of 29
March 1994 and Additional Application of 6 June 1994'
endeavour to remove from the Court's consideration elements of law and fact
which it has, in its Judgment of 11 June 1998, already authorized Cameroon
to present . . ."
and it is therefore unable to entertain the submissions. With respect, this
statement leaves itself open to question, especially when it constitutes a
ground for rejecting the request. Does the statement mean that since the
Court had "authorized" Cameroon to present elements of law and fact, such
purported authorization cannot be challenged and if challenged the Court is
bound to reject the challenge because it had in the first place authorized
their presentation. Furthermore, is it not the prerogative of a party to
present the elements of fact and law of its case rather than for the Court
to authorize such elements? In the light of such considerations, the
statement as formulated appears to leave itself open to procedural as well
as juridical challenge.
12. The underlying reason for Article 60 of the Statute is to preserve the
integrity and finality of a judgment of the Court - the issue of res
judicata - a matter not contested in the request. But the provision
supplemented by Article 98, paragraph 1, of the Rules of Court also
contemplate and allow for the interpretation/clarification of its judgment
by the Court so as to give precision and definition to the scope and meaning
of such a judgmentFN2. Where such precision or clarification is missing, a
party is entitled to request the Court to make it.
---------------------------------------------------------------------------------------------------------------------
FN2
Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No.
11, 1927, P.C.I.J., Series A, No. 13, p. 10.
---------------------------------------------------------------------------------------------------------------------
13. The lack of clarification regarding the meaning and scope of the
Judgment could lead to an unnecessary and conceivable prolongation and
confusion of pleadings that could have been obviated by the Court's
interpretation of its Judgment.
14. The reasons for the request, and hence the clarification sought, are, in
my view, both sound and legitimate and meet the criteria set out in the
relevant provisions of the Statute and Rules of Court. The request does not
create a new issue and is consequential upon the former proceedings. The
Applicant had established its interests, both in law and in fact, as worthy
of legal protection, in the sense that, as a Party to the dispute, it has an
interest of a legal nature in ensuring that the other Party observes the
obligations imposed by the Statute and Rules of Court, and to enable it to
respond to the Memorial as appropriate and necessary. The Respondent's
interest in the dispute before the Court would include its knowing [p 53]
the specific "incidents" as distinct from "facts" relied on in support of
the Application and to which it would be expected to respond in its
Counter-Memorial.
15. It is my considered opinion that the "interpretation" given of the
Judgment has not rendered the clarification and precision of meaning which
the request seeks. The Court should have acceded to the request and found it
admissible, as it meets all the criteria set out in the relevant provisions
of the Statute and Rules of Court as well as in its jurisprudence.
(Signed) Abdul G. Koroma.
[p 54]
Dissenting opinion of Judge Ajibola
Introduction - Procedural issue - Parties and the need to allow for second
round of pleadings - Agreement with the Court's Judgment on jurisdiction and
costs - Need for the Court to interpret - Distinction between facts and
incidents - Court should have granted Nigeria's request - Article 36 (2) of
the Statute and meaning of "dispute".
In this Judgment, the Court has decided to reject Nigeria's request for
interpretation as inadmissible. I have decided to file this dissenting
opinion because I do not agree with the conclusion reached by the Court.
This was an Application filed by Nigeria on 28 October 1998 requesting the
Court to interpret the scope and meaning of paragraphs 99 and 100 of its
Judgment of 11 June 1998. This request by Nigeria for interpretation is
quite independent from the pending case filed by Cameroon as entered in the
General List of the Court.
Cameroon filed its observations to the Application on 13 November 1998 and
made the following submissions:
"1. The Republic of Cameroon leaves it to the Court to decide whether it has
jurisdiction to rule on a request for interpretation of a decision handed
down following incidental proceedings and, in particular, with regard to a
judgment concerning the preliminary objections raised by the defending
Party.
2. The Republic of Cameroon requests the Court:
- Primarily:
To declare the request by the Federal Republic of Nigeria inadmissible; to
adjudge and declare that there is no reason to interpret the Judgment of 11
June 1998;
- Alternatively:
To adjudge and declare that the Republic of Cameroon is entitled to rely on
all facts, irrespective of their date, that go to establish the continuing
violation by Nigeria of its international obligations; that the Republic of
Cameroon may also rely on such facts to enable an assessment to be made of
the damage it has suffered and the adequate reparation that is due to it."
Based on the documents submitted to it, the Court considered that it had
sufficient information on the position of the Parties and did not deem it
necessary to invite the Parties to "furnish[ing] further written or oral
explanations" as provided for in paragraph 4 of Article 98 of the Rules of
Court. [p 55]
Quite justifiably, the Court "may, if necessary, afford the parties the
opportunity of furnishing further written or oral explanations" (emphasis
added). This demonstrably is within the discretion of the Court. There are
instances when the Court has exercised this discretion by requesting the
parties to furnish further written explanations. For example, such written
observations or explanations were allowed in the Asylum case (Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case
(Colombia v. Peru), I.C.J. Reports 1950, pp. 400-401). In that case,
although the Application was made by Colombia, the Peruvian Government
submitted its observations in a letter of 22 November 1950 and this letter
was forwarded to Colombia in order that, if Colombia wished to submit any
observations, it could do so by 24 November 1950. In other cases the Court
has allowed for "oral explanations". Such examples are reflected in the
cases concerning the Interpretation of Judgments Nos. 7 and 8 (Factory at
Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13) and Application
for Revision and Interpretation of the Judgment of 24 February 1982 in the
Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
(Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp.
192-194). There is, however, a compelling reason, as far as the present case
is concerned, to request further observations from the Parties. This is
clearly reflected in the manner in which the submissions of Cameroon were
presented. In its observations Cameroon argues that the Court should declare
Nigeria's request inadmissible, but also submits alternatively that the
Court should
"adjudge and declare that the Republic of Cameroon is entitled to rely on
all facts, irrespective of their date, that go to establish the continuing
violation by Nigeria of its international obligations; that the Republic of
Cameroon may also rely on such facts to enable an assessment to be made of
the damage it has suffered and the adequate reparation that is due to it."
(Emphasis added.)
Although Nigeria is aware of the submissions made by Cameroon in its
observations, it is deprived of the opportunity to react to such
submissions, which not only urge for dismissal but argue further that the
situation apparently anticipated by Nigeria is also justified in accordance
with the Judgment of the Court. This is a clear indication of the
contentious nature of this Application post hoc. It is not out of place in
this regard for the Court to take into consideration the terms of Article 31
of the Rules of Court, which provides that:
"In every case submitted to the Court, the President shall ascertain the
views of the parties with regard to questions of procedure. For this purpose
he shall summon the agents of the parties to meet him as soon as possible
after their appointment, and whenever necessary thereafter." (Emphasis
added.) [p 56]
While the Court may consider it unnecessary for oral explanations to be
allowed in the present case, it is, in my opinion, desirable that it should
seek to ascertain the reaction of Nigeria to the submissions of Cameroon.
Because this Application stands on its own, independent of the original
mainline proceedings, and in order for the Court to ensure a full
representation of the Parties' views and submissions, a second round of
pleadings, which could just take a week, would ensure a juridical
equilibrium and safeguard the essential need for audi alteram partem. In my
view, therefore, there is need for one more round of observations from the
Parties, or at least from Nigeria. The Court has unfettered freedom to
decide on the procedure to be adopted as regards the Application requesting
interpretation. It may even be advisable in a case like this, where an
important and fundamental issue is to be determined, to allow for an oral
hearing. In Shabtai Rosenne's view:
"While Article 98 thus leaves the Court with a broad freedom to decide how
proceedings in interpretation will be conducted, and in particular whether
oral proceedings shall be held, practice indicates in general that the
proceedings will be contentious in character (as is inevitable from the word
dispute in Article 60 of the Statute and Article 98, paragraph 1, of the
Rules). Moreover, proceedings in interpretation are an entirely new case and
not incidental proceedings directly relating to the original mainline
proceedings." (The Law and Practice of the International Court of Justice
1920-1996, Vol. III, p. 1677.)
In the present Application there are three main issues to be decided upon by
the Court, namely jurisdiction, admissibility and costs.
I agree with the Court, without any reservation, on its decision on costs as
claimed by Cameroon.
I also agree with the Court regarding its decision on the issue of
jurisdiction, and with its finding that "the statement of reasons" is linked
with the operative part of the Judgment.
However, as earlier indicated and with due deference to the decision of the
Court, this is a case where the Court should consider the Application of
Nigeria admissible. Nigeria's request is clear and straightforward. In
effect Nigeria, referring to the many incidents mentioned not only in
Cameroon's Applications of 29 March and 6 June 1994, but also in its
Memorial, observations and repertory of incidents, is asking the Court to
clarify which of those incidents are relevant or admissible and which ones
are not. Procedurally, and in order to ensure the expeditious determination
of Cameroon's original case, the issue of which incidents are admissible or
not admissible has become very important to the Parties.
Cameroon, at one stage during the hearings of the case, alleged that there
are so many border incidents for which Nigeria should be blamed [p 57] that
it cannot possibly give an exhaustive list of them. This well illustrates
Nigeria's fear with regard to the content of the Parties' pleadings. During
its oral arguments of 3 March 1998 in support of its preliminary objections,
Nigeria expressed its views thus:
"But a distinction has to be drawn between properly commenting on
objections, and, on the other hand, substantially adding to the case which
has to be answered by the respondent State. Just as the Memorial cannot
enlarge the scope of the dispute as specified in the Application (although
it can amplify the case there set out), even more so is it improper for a
State's observations to seek to enlarge the substantive scope of the dispute
yet further by bringing forward new circumstances not apparent from the
Application and Memorial. This, however, is what Cameroon, by introducing in
its observations yet further alleged incidents for which Nigeria is said to
be responsible, has done: Cameroon has sought substantially to add to the
case set out in its Application as amended, and as elaborated in its
Memorial. Those additions should therefore be disregarded."
Nigeria did not dispute the right of Cameroon to amplify in its Memorial in
respect of the incidents referred to in its Application, but it clearly
rejects Cameroon's right to give details of incidents occurring after the
Application has been filed. It is observed that Cameroon referred to many
incidents, some in its original Application of 29 March 1994, others in its
subsequent amending Application of 6 June 1994, others in its Memorial as
well as in its observations. In fact, it catalogued many incidents in the
repertory of incidents.
It is thus clear that the issue of these incidents in relation to States'
international responsibility has to be addressed by the Court. It is
therefore very difficult for the Court to give any meaningful consideration
to the incidents as alleged by Cameroon in all of its various submissions to
the Court, without determining, from the stage of the pleadings, which of
these incidents are admissible and which are not admissible for the purposes
of this case. Failure on the part of the Court to give such an
interpretation in this regard would be to miss another opportunity to
develop international law on this important issue, while at the same time
creating difficulties for the Parties as regards their pleadings. Such
difficulties would in turn result in delay.
The two paragraphs of the Judgment of 11 June 1998 that Nigeria is
requesting the Court to interpret are paragraphs 99 and 100, which read:
"99. Nor does Article 38, paragraph 2, provide that the latitude of an
applicant State, in developing what it has said in its application is
strictly limited, as suggested by Nigeria. That conclusion cannot be
inferred from the term 'succinct'; nor can it be drawn from the Court's
pronouncements on the importance of the point of time of [p 58] the
submission of the application as the critical date for the determination of
its admissibility; these pronouncements do not refer to the content of
applications (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United States of America), Preliminary Objections,
Judgment, 1998, para. 43; and Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary objections,
Judgment, 1998, para. 44). Nor would so narrow an interpretation correspond
to the finding of the Court that,
'whilst under Article 40 of its Statute the subject of a dispute brought
before the Court shall be indicated, Article 32 (2) of the Rules of Court
[today Art. 38, para. 2] requires the Applicant "as far as possible" to do
certain things. These words apply not only to specifying the provision on
which the Applicant founds the jurisdiction of the Court, but also to
stating the precise nature of the claim and giving a succinct statement of
the facts and grounds on which the claim is based.' (Northern Cameroons
(Cameroon v. United Kingdom, Preliminary objections, Judgment, I.C.J.
Reports 1963, p. 28.)
The Court also recalls that it has become an established practice for States
submitting an application to the Court to reserve the right to present
additional facts and legal considerations. The limit of the freedom to
present such facts and considerations is 'that the result is not to
transform the dispute brought before the Court by the application into
another dispute which is different in character' (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para.
80). In this case, Cameroon has not so transformed the dispute.
100. As regards the meaning to be given to the term 'succinct', the Court
would simply note that Cameroon's Application contains a sufficiently
precise statement of the facts and grounds on which the Applicant bases its
claim. That statement fulfils the conditions laid down in Article 38,
paragraph 2, and the Application is accordingly admissible.
This observation does not, however, prejudge the question whether, taking
account of the information submitted to the Court, the facts alleged by the
Applicant are established or not, and whether the grounds it relies upon are
founded or not. Those questions belong to the merits and may not be
prejudged in this phase of the proceedings." (Emphasis added.) [p 59]
Reading the two paragraphs of the Judgment quoted above, it is clear that
the Court has decided on the issue of the procedural right of Cameroon to:
(a) develop what it "said" in its "Application" and (b) present "additional
facts".
But, quite clearly, the Court has not determined the issue of additional
incidents or new incidents. Hence the need for the Court to interpret
definitively what is expected from any applicant alleging that certain
incidents, although relevant to the application, occurred after the
application was filed.
It is my view that Nigeria is raising an important issue of substance on the
interpretation of the Court's Judgment of 11 June 1998 which requires a
definitive pronouncement of this Court. The question is not strictly
speaking one of looking for the meaning of the two quoted paragraphs but
rather of the scope of the Court's decision. It is therefore one of ratione
temporis.
In view of Cameroon's intention, as stated in its observations (para. 6.04),
to raise the issue of new and future incidents, and of the fact that it has
indeed already done so at the oral hearings of 2 to 11 March 1998 (incidents
of 16 March 1995, 30 April 1996, etc.), it is my considered opinion that the
Court should draw a clear line of limitation on pleadings as they relate to
the issue of incidents alleged by Cameroon in its Applications of 29 March
and 6 June 1994. Put succinctly, the question is, which of the incidents
alleged by Cameroon in its Applications will the Court consider as incidents
relevant to the present case? In other words, will the Court consider
post-1994 incidents along with the pre-1994 incidents or will the Court
restrict Cameroon to the pre-1994 incidents only?
In the Nauru case the Court refused to entertain a "new claim" and said that
such a new claim could only be entertained if it arose "directly out of the
question which is the subject-matter of that Application" (Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 30, para. 67; see also Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports
1974, p. 203, para. 72). In the present case too the Court needs to clarify
the category of incidents alleged by Cameroon to be relevant. Are they
pre-1994 incidents only, or both pre- and post-1994 incidents?
Equally, the issue of what additional facts are required from Cameroon must
be spelled out very clearly by the Court; are these additional facts in
relation to the incidents before the Applications of Cameroon in 1994 or do
they include additional facts concerning incidents subsequent to the year
1994? If the Court agrees that Cameroon may file additional facts, is the
Court also saying that Cameroon can file particulars of additional incidents
after 1994?
Cameroon in its observations admits that its freedom is not unlimited, [p
60] but contends that this matter should be left to the merits stage.
However, Nigeria is required to file its Counter-Memorial very soon. If, for
example, Cameroon is given the latitude by the Court to introduce new
elements relating to incidents after 1994, this could involve open-ended
pleadings that might result in an indefinite delay and wasting of the
Court's time. If, for example, such additional or new incidents (say of
1998-1999) are introduced by Cameroon in its Reply to the Counter-Memorial
of Nigeria (which could be an element of surprise) then Nigeria might have
to respond to such incidents for the first time in its Rejoinder, which
could then also warrant applications from both Parties for further rounds of
pleadings and which in turn could continue ad infinitum. Another complex
situation could emerge if there are further allegations of new or additional
incidents at the close of pleadings or during the oral proceedings of the
case on the merits. This might also compel the Parties to request further
pleadings.
Apart from the fact that Nigeria's Application requires a decision of the
Court one way or the other, a decision on this issue would further enrich
the jurisprudence of the Court and serve as a guideline to litigants with
regard to the limitations imposed on the content of applications. Quite
rightly, the Court should not accept any delay in a matter of this nature;
the case should be disposed of expeditiously because of the present
situation along the Parties' frontiers. But at the same time there is need
for caution; this should not be done at the expense of justice and proper
procedure. There is no doubt that the pre-1994 incidents are the facts in
issue in this case, and additional facts are indeed welcome to support such
incidents; but not facts introduced to buttress post-1994 incidents.
Furthermore, I believe that the ordinary interpretation of the word
"dispute" in Article 36, paragraph 2, of the Statute of the Court relates
only to pre-existing disputes or incidents that occurred before the filing
of an application, but definitely not to a future dispute. Apart from the
illogicality of such an interpretation, its consequences could unduly and
unnecessarily prolong pleadings before the Court and delay a speedy
settlement of cases.
(Signed) Bola Ajibola. |
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