|III.||The International Court of Justice|
|4.||JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE|
|4.3.||Interpretation of Decisions|
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 (Nigeria v. Cameroon),
Judgment of 25 March 1999, I.C.J. Reports 1999, p. 31
[pp. 35-39] 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 Chorzów), 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 ...[W]hat 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 "[r]ejects 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
"[t]he 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 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
"[i]t 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.
15. By its Judgment of 11 June 1998, the Court rejected Nigeria's sixth preliminary objection. The Court explained that "[t]he 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 Courts 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 Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26, 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), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 130, para. 43)" (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 "[i]n 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",
"(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 Courts 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.
[pp. 44-48 D.O. Weeramantry] 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"1, it seems to me that this object is fully satisfied by Nigeria's request.
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.
Another way of viewing this matter is to consider that a dispute must 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/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya)2, 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.
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.
[pp. 50-51 D.O. Koroma] 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" constituted "additional facts", and that their introduction in proceedings before the Court was governed by the same rules.
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.
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.
[p. 57 D.O. Ajibola] 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.