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Published online by Cambridge University Press: 28 July 2009
[A State] has the right to resort to every legitimate judicial remedy and procedure to defend itself against charges that it has violated the treaty. What it may not do is interpose manifestly ill-founded and trivial motions whose sole purpose can only be to disrupt and delay the orderly and timely completion of the proceedings.
Preliminary objections: an overview
A preliminary objection is an objection to a tribunal's consideration of a case. When a party submits a case to a tribunal, the respondent may make legal objections to the Court's authority to act. The respondent may object that the case was initially inadmissible, that the enforcement organs did not have jurisdiction, or that the enforcement organs did not follow all the procedural or technical requirements of the treaty. As articulated by the International Court of Justice, ‘the object of a preliminary objection is to avoid not merely a decision on, but even any discussion of the merits’. Before an international tribunal can consider whether the State has violated substantive provisions it must first rule on any preliminary objections. If certain of these objections are admitted by the Court, it may result in the dismissal of an otherwise factually verifiable case. Rosenne lamented the English use of the term ‘preliminary objection’ rather than ‘preliminary question’ because he believed that it resulted in unnecessary difficulties:
It is to be regretted that the English language has to use the word ‘objection’ and not ‘question’; it incorporates misleading overtones absent from the corresponding French term exception, redolent of the exceptiones of Roman law. […]
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