Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

III. The International Court of Justice
3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE
3.12. Counter-Claim

¤ Case Concerning Armed Activities
on the Territory of the Congo
(Democratic Republic
of the Congo v. Uganda)
Counter-Claims
Order of 29 November 2001

[p. ] 31. Whereas the Congo asserts as its principal argument that "the claims put forward by Uganda in its Counter-Memorial are inadmissible as counter-claims" on the ground that they "do not satisfy the formal conditions laid down by Article 80, paragraph 2, of the Rules of Court";

32. Whereas Article 80, paragraph 2, of the Rules of Court provides that "[a] counter-claim shall be made in the Counter-Memorial of the party presenting it, and shall appear as part of the submissions of that party"; whereas the counter-claims of Uganda were set out in various sections of Chapter XVIII of its Counter-Memorial entitled "The State Responsibility Of The DRC And The Counter-Claims of the Republic of Uganda"; whereas those claims refer to acts by which the Congo is said to have violated a number of international obligations in regard to Uganda; and whereas Uganda, in the submissions in its Counter-Memorial, requests the Court

"(1) To adjudge and declare in accordance with international law

(C) That the Counter-claims presented in Chapter XVIII of the present Counter-Memorial be upheld.
(2) To reserve the issue of reparation in relation to the Counter-claims for a subsequent stage of the proceedings";

33. Whereas Uganda’s counter-claims could have been presented in a clearer manner; whereas, however, their presentation does not deviate from the requirements of Article 80, paragraph 2, of the Rules of Court to such an extent that they should be held inadmissible on that basis; whereas, moreover, it was permissible for Uganda to refer to a request for reparation without the modalities thereof being stated at this stage; and whereas the Congo’s principal submission must therefore be denied;

[p. ] 34. Whereas the Congo contends in the alternative that

"the claims concerning respectively the aggression alleged to have been committed by the Congolese State before May 1997, the alleged attacks on Ugandan diplomatic premises and personnel in Kinshasa and the alleged breaches of the Lusaka Agreements ... do not satisfy the condition of ‘direct connection’ laid down by Article 80, paragraph 1, of the Rules of Court",

and that Uganda’s counter-claims in this respect are therefore inadmissible as such;

35. Whereas the Court has in its jurisprudence already had occasion to state in the following terms the reasons why the admissibility of a counter-claim as such is contingent on the condition of a "direct connection" set out in Article 80, paragraph 1, of the Rules of Court: "whereas the Respondent cannot use [the counter-claim procedure] ... to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 257, para. 31; Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33);

36. Whereas the Rules of Court do not however define what is meant by "directly connected"; whereas it is for the Court to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, whether there is the necessary direct connection between the claims must be assessed both in fact and in law;

[p. ] 38. Whereas, in respect of Uganda’s first counter-claim (acts of aggression allegedly committed by the Congo against Uganda), the Congo maintains that the counter-claim satisfies the requirement under Article 80 of a direct connection only for the period from May to August 1998; whereas, as already recalled above (see paragraph 36), as a general rule, the existence of a direct connection between the counter-claim and the principal claim must be assessed both in fact and in law; whereas, contrary to the Congo’s contention, the establishment of such a connection is not subject to the condition that "the counter-claimant’s arguments must both support the counter-claim and be pertinent for the purposes of rebutting the principal claim"; whereas it is evident from the Parties’ submissions that their respective claims relate to facts of the same nature, namely the use of force and support allegedly provided to armed groups; whereas, while Uganda’s counter-claim ranges over a longer period than that covered by the Congo’s principal claim, both claims nonetheless concern a conflict in existence between the two neighbouring States, in various forms and of variable intensity, since 1994; whereas they form part of the same factual complex; and whereas each Party seeks to establish the other’s responsibility based on the violation of the principle of the non-use of force incorporated in Article 2, paragraph 4, of the United Nations Charter and found in customary international law, and of the principle of non-intervention in matters within the domestic jurisdiction of States; whereas the Parties are thus pursuing the same legal aims;
39. Whereas the Court considers that the first counter-claim submitted by Uganda is thus directly connected, in regard to the entire period covered, with the subject-matter of the Congo’s claims;

[p. ] 40. Whereas, in respect of Uganda’s second counter-claim (attacks on Ugandan diplomatic premises and personnel in Kinshasa, and on Ugandan nationals, for which the Congo is alleged to be responsible), it is evident from the case file that the facts relied on by Uganda occurred in August 1998, immediately after its alleged invasion of Congolese territory; whereas each Party holds the other responsible for various acts of oppression allegedly accompanying an illegal use of force; whereas these are facts of the same nature, and whereas the Parties’ claims form part of the same factual complex mentioned in paragraph 38 above; and whereas each Party seeks to establish the responsibility of the other by invoking, in connection with the alleged illegal use of force, certain rules of conventional or customary international law relating to the protection of persons and property; whereas the Parties are thus pursuing the same legal aims;

41. Whereas the Court considers that the second counter-claim submitted by Uganda is therefore directly connected with the subject-matter of the Congo’s claims;

42. Whereas, in respect of Uganda’s third counter-claim (alleged violations by the Congo of the Lusaka Agreement), it is to be observed from the Parties’ submissions that Uganda’s claim concerns quite specific facts; whereas that claim refers to the Congolese national dialogue, to the deployment of the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and to the disarmament and demobilization of armed groups; whereas these questions, which relate to methods for solving the conflict in the region agreed at multilateral level in a ceasefire accord having received the "strong support" of the United Nations Security Council (resolutions 1291 (2000) and 1304 (2000)), concern facts of a different nature from those relied on in the Congo’s claims, which relate to acts for which Uganda was allegedly responsible during that conflict; whereas the Parties’ respective claims do not therefore form part of the same factual complex; and whereas the Congo seeks to establish Uganda’s responsibility based on the violation of the rules mentioned in paragraph 38 above, whilst Uganda seeks to establish the Congo’s responsibility based on the violation of specific provisions of the Lusaka Agreement; whereas the Parties are thus not pursuing the same legal aims;

43. Whereas the Court considers that the third counter-claim submitted by Uganda is therefore not directly connected with the subject-matter of the Congo’s claims;

[p. ] 44. Whereas, at the conclusion of its Written Observations, the Congo submitted in the further alternative that: "it would not be appropriate, on the basis of considerations of expediency deriving from the requirements of the sound administration of justice, to join the Ugandan claims to the proceedings on the merits pursuant to Article 80, paragraph 3, of the Rules of Court"; and whereas the Court, having found that the first and second counter-claims submitted by Uganda are directly connected with the subject-matter of the Congo’s claims, takes the view that, on the contrary, the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter-claims and the principal claims;

[pp. Decl. Verhoeven] The connection which counter-claims are required to have with the principal claim in order for them to be admissible must, it seems to me, be considered in the light of their purpose. That purpose is not always entirely clear. Judged by reference to national practices, the importance of counter-claims would appear to be twofold: on the one hand, they enable the court to gain a more thorough and precise understanding of the dispute of which it is seised and, on the other hand, they avoid the risk of incompatible - or even downright contradictory - rulings. These are the sole circumstances in which recourse to a counter-claim can effectively enable additional proceedings to be dispensed with.
That is a reasonable explanation. Should it be otherwise in the case of international courts? I see no reason why. That being the case, the criteria of connection emphasized to date by the Court for the purpose of declaring counter-claims admissible (facts of the same nature, same overall factual situation, same legal objectives) must be understood in light of the above-mentioned aims. However, it would seem to me to be wrong to apply those criteria in a purely "mechanical" manner, whilst losing sight of the reasons which essentially explain why the Court should entertain the respondent’s claim without obliging him to institute new proceedings. Too rigid an application could result in an excessive reduction in the number of claims that might effectively be submitted by way of counter-claim; it could also be to disregard the fact, underlined by the Court, that the principal claim and the counter-claim are independent of one other, which necessarily implies that they need have neither the same subject-matter nor the same legal basis; finally, it cannot be precluded that other criteria may be judged relevant, under other circumstances, for the purpose of ruling on the admissibility of a counter-claim. The important point is always that the Court should be in the "best" position to pass judgment, and that the credibility of its judgments should not be jeopardized by inconsistent rulings.
That said, it is a specific feature of the International Court of Justice that its jurisdiction is currently purely voluntary. That jurisdiction exists only because and insofar as the parties have so desired it. It is therefore possible that the Court, absent agreement, may not be able to assume jurisdiction tomorrow in respect of a claim of which it is seised today by way of counter-claim.
Are we accordingly to conclude that the Court should adopt a particularly "liberal" approach when ruling on the admissibility of a counter-claim and, in particular, on the requirement that the counter-claim be directly connected to the subject-matter of the principal claim? I seriously doubt it. It is true that the peaceful settlement of disputes could be enhanced by such an approach. However, the risk is that it would encourage States to avoid a Court which keeps too many "surprises" up its sleeve, rather than submit to its jurisdiction. Further, the internal logic of a system of voluntary jurisdiction undoubtedly requires - irrespective of any considerations of jurisdictional policy - particular rigour in evaluating the connection which the counter-claim must have with the principal claim if it is not to be ruled inadmissible.