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| III. | The International Court of Justice |
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| 3.4. | The Submissions / Scope of the Dispute |
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Fisheries Jurisdiction
(Spain v. Canada)
Jurisdiction of the Court
Judgment of 4 December 1998
I.C.J. Reports 1998, p. 432
[pp. 447-450] 29. There is no doubt that it is for the Applicant, in its Application, to present to the Court the dispute with which it wishes to seise the Court and to set out the claims which it is submitting to it.
Paragraph 1 of Article 40 of the Statute of the Court requires moreover that the "subject of the dispute" be indicated in the Application; and, for its part, paragraph 2 of Article 38 of the Rules of Court requires "the precise nature of the claim" to be specified in the Application. In a number of instances in the past the Court has had occasion to refer to these provisions. It has characterized them as "essential from the point of view of legal security and the good administration of justice" and, on this basis, has held inadmissible new claims, formulated during the course of proceedings, which, if they had been entertained, would have transformed the subject of the dispute originally brought before it under the terms of the Application (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 266-267; see also Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B, No. 52, p. 14 and Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173).
In order to identify its task in any proceedings instituted by one State against another, the Court must begin by examining the Application (see Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 21; Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 27; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 260, para. 24). However, it may happen that uncertainties or disagreements arise with regard to the real subject of the dispute with which the Court has been seised, or to the exact nature of the claims submitted to it. In such cases the Court cannot be restricted to a consideration of the terms of the Application alone nor, more generally, can it regard itself as bound by the claims of the Applicant.
Even in proceedings instituted by Special Agreement, the Court has determined for itself, having examined all of the relevant instruments, what was the subject of the dispute brought before it, in circumstances where the parties could not agree on how it should be characterized (see Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 14-15, para. 19 and p. 28, para. 57).
30. It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both Parties:
"[I]t is the Court's duty to isolate the real issue in the case and to identify the object of the claim. It has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial functions" (Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30; see also Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, I.C.J. Reports 1995, p. 304, para. 55.)
The Court's jurisprudence shows that the Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute. Thus, in the case concerning the Right of Passage over Indian Territory, the Court, in order to form a view as to its jurisdiction, defined the subject of the dispute in the following terms:
"A passage in the Application headed 'Subject of the Dispute' indicates that subject as being the conflict of views which arose between the two States when, in 1954, India opposed the exercise of Portugal's right of passage. If this were the subject of the dispute referred to the Court, the challenge to the jurisdiction could not be sustained. But it appeared from the Application itself and it was fully confirmed by the subsequent proceedings, the submissions of the Parties and statements made in the course of the hearings, that the dispute submitted to the Court has a threefold subject:
(1) The disputed existence of a right of passage in favour of Portugal;
(2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage;
(3) The redress of the illegal situation flowing from that failure." (Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, pp. 33-34.)
31. The Court will itself determine the real dispute that has been submitted to it (see Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, pp. 24-25). It will base itself not only on the Application and final submissions, but an diplomatic exchanges, public statements and other pertinent evidence (see Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 262-263).
32. In so doing, the Court will distinguish between the dispute itself and arguments used by the parties to sustain their respective submissions on the dispute:
"The Court has ... repeatedly exercised the power to exclude, when necessary, certain contentions or arguments which were advanced by a party as part of the submissions, but which were regarded by the Court, not as indications of what the party was asking the Court to decide, but as reasons advanced why the Court should decide in the sense contended for by that party." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29; see also cases concerning Fisheries, Judgment, I.C.J. Reports 1951, p. 126; Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 52; Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 16.)
33. In order to decide on the preliminary issue of jurisdiction which arises in the present case, the Court will ascertain the dispute between Spain and Canada, taking account of Spain's Application, as well as the various written and oral pleadings placed before the Court by the Parties.
34. The filing of the Application was occasioned by specific acts of Canada which Spain contends violated its rights under international law. These acts were carried out on the basis of certain enactments and regulations adopted by Canada, which Spain regards as contrary to international law and not opposable to it. It is in that context that the legislative enactments and regulations of Canada should be considered.
35. The specific acts (see paragraph 34 above) which gave rise to the present dispute are the Canadian activities on the high seas in relation to the pursuit of the Estai, the means used to accomplish its arrest and the fact of its arrest, and the detention of the vessel and arrest of its master, arising from Canada's amended Coastal Fisheries Protection Act and implementing regulations. The essence of the dispute between the Parties is whether these acts violated Spain's rights under international law and require reparation. The Court must now decide whether the Parties have conferred upon it jurisdiction in respect of that dispute.
[pp. 521-522 D.O. Bedjaoui] 15. For it stands to reason that within any judicial order whether domestic or international, it is naturally the applicant who has the initiative and who defines - at his own judicial risk - the subject-matter of the dispute which he wishes to bring before the court. In this regard he enjoys a clear procedural right, deriving from his status as applicant, to seek and to obtain from the court a ruling on the subject of the dispute which he has submitted to it and on that alone, to the exclusion of all others (subject of course to any supervening incidental proceeding). The principle of the equality of the parties is by its nature completely irrelevant to this question, for it cannot render "equal" those who, procedurally, are "different". It cannot turn the "respondent" into a "second applicant", purportedly endowed with some concurrent power to reformulate the subject-matter of the dispute as defined by the applicant. Nor, by the same token, can it transform the court into an applicant "party" (a third one!), with the power to set aside the subject of the dispute as defined in the application and replace it with an entirely different one.
16. In international proceedings, as indeed in domestic litigation, the respondent State, by virtue of its very status as respondent, does not have a power to intervene in the definition of the subject as presented by the applicant. It could only have such a right if it changed its status, which can happen in two cases: first, where the proceedings are instituted not as in this case by an application, but by means of a special agreement, thus making each State simultaneously applicant and respondent, and secondly where, in proceedings instituted by an application as in this case, the respondent State lodges a counter-claim, of which there is no question here.
[pp. 524-525 D.O. Bedjaoui] 25. And even allowing, on an extreme view, that the Canadian legislation, together with its implementing regulations, had given rise to a general dispute, and that, on that basis, such a general dispute could be regarded as comprising a number of aspects or involving a number of levels, this was still no justification for refusing, as the Court did, to recognize an applicant State's right to refer to it only one aspect of that general dispute, despite its connection with other aspects. As the Court was at pains to point out in the case of the United States Diplomatic and Consular Staff in Tehran, "no provisions of the Statute or Rules contemplate that the Court should decline to take cognizance of one aspect of a dispute merely because that dispute had other aspects".
26. Notwithstanding all of this, the Court took the view that the proper course in law was to relocate the subject of the dispute so as to bring it far closer to that proposed by Canada. In my view the Judgment conferred upon the respondent State and the Court powers so wide as to distort the essential nature of the subject of the dispute as set out in the Application. Determination of the subject-matter of the dispute is admittedly, as I have already said, a "tripartite" or triangular operation, involving, in various degrees and with different roles and powers, first the Applicant, then the Respondent, and finally the Court. The applicant State is free to submit such dispute as it wishes to submit, but has a duty under the Statute to "specify" and "define" the subject-matter of that dispute. The scene is set. The play to be acted out has been freely chosen by the Applicant. The proceedings have been initiated, on the terms desired by the Applicant. The respondent State now has the option of casting its legal "grounds", whatever they be, in the mould thus prepared for them. It is, however, well accepted that the Respondent may in practice opt for an alternative judicial strategy and may seek to escape the definition of the dispute given by the applicant State by invoking grounds and arguments, which it is for the Court to evaluate. But the Court can in no way modify the "decor" or change the subject-matter of the dispute. For, if it did so, it would be rendering judgment in a case altogether different from that brought before it by the Applicant. The Courts role is to give an appropriate legal characterization to those claims of the applicant State which properly come within the framework of the subject-matter of the dispute as that State has defined it in its Application. This does not mean that the Court has the power to alter the subject-matter put before it. Still less can the respondent State propose a different subject-matter to the Court. That would be to hear a different case.
[pp. 558-559 D.O. Ranjeva] 14. (b) When proceedings are instituted by application, it is the applicant who has the principal responsibility for defining the original subject of the dispute. The petitum is formally set out in the application and constitutes the only description of the subject of the dispute available to the Court. As long as the respondent party has not itself formulated its claims and its own petita on the merits, either in a counter-memorial (Art. 43, para. 2, of the Statute) or by way of counter-claim (Art. 80, Rules of Court), it is with the subject of the dispute as described in the application that the Court must deal. Until it makes a definitive determination of the subject of the dispute, which it will do after the respondent has filed its petita, the Court is bound to accept that it cannot change the original subject of the substantive dispute: the Court can rule only on the basis of that definition and may not alter its terms or, in particular, violate the integrity of the petitum. In the exercise of its power to clarify implicit claims, it is not entitled to modify the petitum of the applicant. At the very most, it can find that there is no dispute on the subject as set out in the application, or on certain aspects thereof; but in stating that the real dispute is that presented in paragraph 35 of the Judgment, the Court has altered the petitum of the Applicant and gone outside the framework of the express terms of the Application, without attempting to justify its reasoning on the basis of the actual actions and conduct of the applicant Party. It is thus on the basis of an incomplete, and therefore inaccurate, interpretation of the above-mentioned jurisprudence that the Court reached the unacceptable conclusion that "more generally, [it could not] regard itself as bound by the claims of the Applicant".
[pp. 572-574 D.O. Vereshchetin] 6. The contention of Canada that:
"[i]t is impossible to isolate a dispute relating to matters of general international law, and more particularly State jurisdiction, from a dispute relating to measures for the conservation and management of the living resources of the sea" (CR 98/12, tr., p. 51)
cannot be sustained on several accounts.
First, to maintain that every dispute before the Court must consist of an "indivisible", "indissociable" whole, always and necessarily embracing both facts and rules of law, would not accord with the Statute of the Court and its jurisprudence. Under Article 36, paragraph 2 (b), of the Statute, the Court has jurisdiction in all legal disputes concerning "any question of international law". Legal disputes concerning "the existence of any fact which, if established, would constitute a breach of international obligation", are categorized on a par with disputes concerning "any question of international law". Nothing in the Statute prevents the Court from entertaining a "purely" legal dispute relating to a question of international law. In the North Sea Continental Shelf cases, in accordance with the Special Agreements, the Court stopped short at declaring applicable principles and rules of international law (I.C.J. Reports 1969, pp. 54-55).
Secondly, were the Court to understand the above contention by Canada as a general proposition that the Court cannot entertain in isolation a dispute relating to the interpretation of principles and rules of international law merely because the same principles and rules may govern another dispute, or another aspect of the dispute which is, allegedly, exempted from the jurisdiction of the Court, then this contention would again go contrary to the North Sea cases' jurisprudence as well as to the Court's dictum in the case concerning United States Diplomatic and Consular Staff in Tehran:
"no provision of the Statute or Rules contemplates that the Court should decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects ..." (I.C.J. Reports 1980, p. 19, para. 36).
The Court also remarked in its Judgment in the same case that:
"if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes" (ibid., p. 20, para. 37).
Thirdly, a dispute before the Court may have several subjects, or several distinct aspects of the same subject. Thus in the Right of Passage case the Court noted that "the dispute submitted to the Court ha[d] a threefold subject including "the disputed existence of a right ... " (I.C.J. Reports 1960, pp. 33-34, emphasis added). In a concrete case, the Court may find that it has jurisdiction with regard to one subject, or to a specific aspect of that subject, and has no jurisdiction with regard to others.
7. In the case under consideration, due regard should also be given to the fact that the European Community and its member States would appear to have agreed that there was a dispute between Spain and Canada distinct from, and co-existent with, that between the Community and Canada concerning fisheries in the NAFO Regulatory Area.
8. In my view, the preceding analysis shows that legal entitlement ("the disputed existence of a right") may properly be the subject of a separate litigation before the Court. Spain, as an applicant State, was at liberty to bring before the Court and to single out a distinct aspect of the dispute between the Parties, which presented for her a special interest or had not been resolved by some other peaceful means.
The scope of the dispute between the Parties is much broader than the pursuit and arrest of the Estai and the consequences thereof. Quite apart from this proximate cause of the dispute, it would appear that what underlies it are different perceptions by the Parties of the rights and obligations which a coastal State may or may not have in a certain area of the high seas; or, more generally, different perceptions of the relationship between the exigencies of the law of the sea, on the one hand, and environmental law on the other. The Court had no good reason for redefining and narrowing the subject-matter of the dispute presented by the Applicant, although, certainly, the Court could reasonably find that it had jurisdiction in respect of some aspects of the dispute and was without jurisdiction in respect of others.
[pp. 628-629 D.O. Torres Bernárdez] 118. Having regard to the considerations set out in the present chapter 1 as a whole, I come to the conclusion that the subject of the dispute is indeed that formulated in Spain's Application of 28 March 1995 and confirmed in its Memorial and in its oral arguments and submissions during the present preliminary incidental proceedings. I accordingly reject the definition of the subject of the dispute given in paragraph 35 of the Judgment, along with all the considerations and conclusions relating thereto (paragraphs 29 to 34 of the Judgment).
119. It is my firm belief that the power of the Court to determine its own jurisdiction (Article 36, paragraph 6, of the Statute) does not allow it to "redefine" the subject of disputes that applicant States lay before it by application in the exercise of their sovereignty. True, in preliminary proceedings the Court may evaluate, clarify or interpret the subject of the dispute in an application, but it cannot change it or replace it with another subject. It is not for the Court to "redefine" the subject of the dispute. The same applies when, for example, a claim forming part of the subject of a dispute in the application is inadequately drafted. Here too, the Court is not entitled to substitute itself for the applicant in order to make the necessary correction. It invites the applicant to do so and, if the latter fails to do so, the Court will not adjudicate upon the claim in question (P.C.I.J., Series A, No. 7, pp. 34-35). This is a far cry from the jurisprudence established by the present Judgment, which does not even correct the subject of the dispute submitted by Spain; instead it replaces it with a new subject. The subject of the Application is thus denatured.
