| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.5. | Preliminary Objections |
¤
Aerial Incident of 3 July 1988 (Islamic
Republic of Iran v. United States of America)
Order of 13 December 1989,
I.C.J. Reports 1989, p. 132
[pp. 133-134] 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 preliminary objection
by the United States; and whereas accordingly the Court is not called upon, at
the present stage of the proceedings, to pronounce 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.
[p. 135 Decl. Oda] 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.
[pp. 136-137 S.O. Schwebel] 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 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 Jiménez de Aréchaga,
then President of the Court.
[pp. 138-139 S.O. Schwebel] 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 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.
[pp. 158-159 S.O. Shahabuddeen] Under the strict terms of Article
79, paragraph 1, 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
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.
[pp. 159-160 S.O. Shahabuddeen] 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. |
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.
