III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.5. | Preliminary Objections |
¤
Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
Cf. also: The Optional Clause, Reservations, supra III, 2.3.3.
[pp. 29-31] The present case is the first in which the Court has had
occasion to exercise the power first provided for in the 1972 Rules of Court to
declare that a preliminary objection "does not possess, in the
circumstances of the case, an exclusively preliminary character". It may
therefore be appropriate to take this opportunity to comment briefly on the
rationale of this provision of the Rules, in the light of the problems to which
the handling of preliminary objections has given rise. In exercising its
rule-making power under Article 30 of the Statute, and generally in approaching
the complex issues which may be raised by the determination of appropriate
procedures for the settlement of disputes, the Court has kept in view an
approach defined by the Permanent Court of International Justice. That Court
found that it was at liberty to adopt
"the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of international
law" (Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2,
p. 16).
Under the Rules of Court dating back to 1936 (which on this point reflected
still earlier practice), the Court had the power to join an objection to the
merits "whenever the interests of the good administration of justice
require it" (Panevezys-Saldutiskis Railway, P.C.I.J., Series A /B, No.
75, p. 56), and in particular where the Court, if it were to decide on the
objection, "would run the risk of adjudicating on questions which appertain
to the merits of the case or of prejudging their solution" (ibid.).
If this power was exercised, there was always a risk, namely that the Court
would ultimately decide the case on the preliminary objection, after requiring
the parties fully to plead the merits, - and this did in fact occur (Barcelona
Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970,
p. 3). The result was regarded in some quarters as an unnecessary prolongation
of an expensive and time-consuming procedure.
Taking into account the wide range of issues which might be presented as
preliminary objections, the question which the Court faced was whether to revise
the Rules so as to exclude for the future the possibility of joinder to the
merits, so that every objection would have to be resolved at the preliminary
stage, or to seek a solution which would be more flexible. The solution of
considering all preliminary objections immediately and rejecting all possibility
of a joinder to the merits had many advocates and presented many advantages. In
the Panevezys-Saldutiskis Railway case, the Permanent Court defined a
preliminary objection as one
"submitted for the purpose of excluding an examination by the Court of
the merits of the case, and being one upon which the Court can give a decision
without in any way adjudicating upon the merits" (P.C.I.J., Series A
/B. No. 76. p. 22).
If this view is accepted then of course every preliminary objection should
be dealt with immediately without touching the merits, or involving parties in
argument of the merits of the case. To find out, for instance, whether there is
a dispute between the parties or whether the Court has jurisdiction, does not
normally require an analysis of the merits of the case. However that does not
solve all questions of preliminary objections, which may, as experience has
shown, be to some extent bound up with the merits. The final solution adopted in
1972, and maintained in the 1978 Rules, concerning preliminary objections is the
following: the Court is to give its decision
"by which it shall either uphold the objection, reject it, or declare
that the objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Court rejects the objection, or
declares that it does not possess an exclusively preliminary character, it shall
fix time-limits for the further proceedings." (Art. 79, para. 7.)
While the variety of issues raised by preliminary objections cannot possibly
be foreseen, practice has shown that there are certain kinds of preliminary
objections which can be disposed of by the Court at an early stage without
examination of the merits. Above all, it is clear that a question of
jurisdiction is one which requires decision at the preliminary stage of the
proceedings. The new rule enumerates the objections contemplated as follows:
"Any objection by the respondent to the jurisdiction of the Court or to
the admissibility of the application, or other objection the decision upon which
is requested before any further proceedings on the merits ..." (Art. 79.
para. 1.)
It thus presents one clear advantage: that it qualifies certain objections
as preliminary, making it quite clear that when they are exclusively of that
character they will have to be decided upon immediately, but if they are not,
especially when the character of the objections is not exclusively preliminary
because they contain both preliminary aspects and other aspects relating to the
merits, they will have to be dealt with at the stage of the merits. This
approach also tends to discourage the unnecessary prolongation of proceedings at
the jurisdictional stage.