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INCIDENTAL DETERMINATIONS IN PROCEEDINGS UNDER COMPROMISSORY CLAUSES
Published online by Cambridge University Press: 26 March 2021
Abstract
A dispute brought before an international court or tribunal pursuant to a compromissory clause in a specific treaty may involve issues under rules of international law found outside of the treaty in question. In what circumstances can a court or tribunal determine such external issues? At present, there is no clear answer to this question. This article sets out a framework for how courts and tribunals exercising jurisdiction under compromissory clauses could approach external issues.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press for the British Institute of International and Comparative Law
Footnotes
The author would like to thank Camille Boileau, Professor Chester Brown, Professor Terry Carney and Catherine Drummond for their comments on earlier drafts of this article. The views expressed in this article are the author's own and do not necessarily reflect the position of any entity with which the author is associated.
References
1 There are variations in the wording of compromissory clauses, which are not relevant for the purposes of this article. See eg Convention on the Prevention and Punishment of the Crime of Genocide, art IX.
2 UNCLOS, art 288(1).
3 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), PCA Case 2011-03, Award, 18 March 2015, [163]–[230]; The South China Sea Arbitration (The Philippines v China), PCA Case 2013-19, Award on Jurisdiction and Admissibility, 29 October 2015, [133]–[137], [140]–[145], [148]–[154]; Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v Russia), PCA Case 2017-06, Award concerning Preliminary Objections, 21 February 2020, [43]–[198]; Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), ITLOS Case 28, Preliminary Objections, Judgment, 28 January 2021, [101]–[251].
4 The Arctic Sunrise Arbitration (The Netherlands v Russia), PCA Case 2014-02, Award on the Merits, 14 August 2015, [193]–[198]; The Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), PCA Case 2014-07, Award, 5 September 2016, [128], [203]–[210]; The M/V ‘Norstar’ Case (Panama v Italy), ITLOS Case 25, Judgment, 10 April 2019, [139]–[146].
5 The ‘Enrica Lexie’ Incident (Italy v India), PCA Case 2015-28, Award, 21 May 2020, [226], [238]–[245], [732]–[874].
6 ibid, [1065]–[1077].
7 Immunities and Criminal Proceedings (Equatorial Guinea v France) (Preliminary Objections) [2018] ICJ Rep 292, 319–323 [84]–[102]; Certain Iranian Assets (Iran v United States) (Preliminary Objections) [2019] ICJ Rep 7, 25–34 [48]–[80]; Jadhav (India v Pakistan) (Judgment) [2019] ICJ Rep 418, 430–431 [36]–[37]; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia) (Preliminary Objections) [2019] ICJ Rep 558, 576–577 [27]–[29]; Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v Qatar), Judgment, 14 July 2020 (Chicago Convention Appeal), [41]–[62]; Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v Qatar), Judgment, 14 July 2020 (IASTA Appeal; together, the ICAO Qatar Appeals), [41]–[62].
8 See eg Certain Iranian Assets (n 7) 25 [48].
9 See eg Chicago Convention Appeal (n 7) [42].
10 See eg Harris, C, ‘Claims with an Ulterior Purpose: Characterising Disputes Concerning the “Interpretation or Application” of a Treaty’ (2019) 18(3) LPICT 279, 282–5, 294–6Google Scholar.
11 See eg Enrica Lexie (n 5), Dissenting Opinion of Judge Robinson, [30]–[54]; Concurring and Dissenting Opinion of Arbitrator Rao, [24]–[59]; Immunities and Criminal Proceedings (Preliminary Objections) (n 7), Joint Dissenting Opinion of Vice-President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka, 342–345 [7]–[14].
12 Assuming that there is no relevant subject-matter exclusion from jurisdiction and that the claim of breach ‘falls within’ the provisions of the treaty. On the latter point, see Section II.B.
13 Regarding the requirement that a claim be ‘positively opposed’, see eg South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 328; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833, 849 [37].
14 See eg Jadhav (n 7) 459–460 [149(3)–(5)].
15 See eg Immunities and Criminal Proceedings (Equatorial Guinea v France), Judgment, 11 December 2020, [126(2)].
16 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 462–463 [122(4)–(5)].
17 See eg Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 237–238 [471(2)–(6)].
18 See eg Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 147–148 [292(7), (11)]; Elettronica Sicula S.p.A. (ELSI) (United States v Italy) (Judgment) [1989] ICJ Rep 15, 81 [137(2)]; Oil Platforms (Iran v United States) (Judgment) [2003] ICJ Rep 161, 218 [125(1)–(2)]; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 106 [282(1)–(2)]; Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece) (Judgment) [2011] ICJ Rep 644, 693 [170(2)].
19 Chagos (n 3) [207]–[212], [229]–[230]. See also Harris (n 10) 282–3.
20 South China Sea (Jurisdiction and Admissibility) (n 3) [150]–[153]; Coastal State Rights (n 3) [151]–[166], [191]–[197]; Enrica Lexie (n 5) [231]–[244].
21 Harris (n 10) 286–98.
22 Chicago Convention Appeal (n 7) [43]; IASTA Appeal (n 7) [43].
23 See eg Chicago Convention Appeal, Memorial of the Quartet, 27 December 2018, [5.56]–[5.83]; Reply of the Quartet, 27 May 2019, [4.14]–[4.18].
24 Chicago Convention Appeal (n 7) [47]–[48]; IASTA Appeal (n 7) [47]–[48]. While the ICAO Council is not a ‘judicial institution in the proper sense of that term’, differences between the ICAO Council and international courts and tribunals are not relevant for the purposes of this article. See Chicago Convention Appeal (n 7) [60].
25 See eg Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v United States), Preliminary Objections, Judgment, 3 February 2021, [51].
26 ibid [54].
27 ibid [56]. In some proceedings, the Court has determined the ‘subject-matter' of the dispute brought before it. This is different from the characterisation process used by Annex VII tribunals. For example, in Qatar v UAE, to determine the ‘subject-matter’ of the dispute, the Court simply identified the various claims on which the parties disagreed. See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates), Preliminary Objections, Judgment, 4 February 2021, [56]–[70].
28 Mavrommatis Palestine Concessions PCIJ Rep Series A No 2, 11 (emphasis added).
29 South West Africa (n 13) 328 (emphasis added).
30 See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, Order, 23 January 2020, [20]; Interpretation of Peace Treaties (Advisory Opinion) [1950] ICJ Rep 65, 75.
31 See also The Eurotunnel Arbitration, PCA Case 2003-06, Partial Award, 30 January 2007, [152] (‘This distinction between the scope of the rights and obligations which an international tribunal has jurisdiction to enforce and the law which it will have to apply in doing so is a familiar one’) (emphasis added); Wood, M, ‘The International Tribunal for the Law of the Sea and General International Law’ (2007) 22(3) IJMCL 351, 356Google Scholar.
32 Guyana v Suriname, PCA Case 2004-04, Award, 17 September 2007, [405]–[406].
33 ibid [488(2)] (emphasis added). See also The M/V ‘SAIGA’ (No 2) Case (Saint Vincent and the Grenadines v Guinea), ITLOS Case 2, Judgment, 1 July 1999, [155], [159], [183(9)].
34 See eg Duzgit Integrity (n 4) [207]. cf Enrica Lexie (n 5) [1094(B)(2)].
35 See eg Jadhav (n 7) 430 [36]. See also 454–455 [135].
36 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) [2015] ICJ Rep 3, 45 [85], quoting Bosnian Genocide (n 17) 104 [147].
37 Croatia v Serbia (n 36) 45–46 [85]. See also 68 [153].
38 Certain Iranian Assets (n 7) 35 [80] (emphasis added).
39 ibid 27 [53]–[54].
40 See eg ibid 23 [36]. See also eg Oil Platforms (Iran v United States) (Preliminary Objection) [1996] ICJ Rep 803, 810 [16]; Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 308 [46]; Ukraine v Russia (n 7) 584 [57]; Alleged Violations (n 25) [75]. When the Court determines whether acts complained of ‘fall within’ the provisions of a treaty, it may definitively determine disputed questions of treaty interpretation. See eg Heiskanen, V, ‘Oil Platforms: Lessons of Dissensus’ (2005) 74(2) NordicJIL 179, 183Google Scholar; Tomuschat, C, ‘Article 36’ in Zimmermann, A et al. (eds), Statute of the International Court of Justice (3rd edn, Oxford University Press 2019) 712, 757–8Google Scholar [66]–[67]. See also Alleged Violations (n 25), Declaration of Judge Tomka.
41 Certain Iranian Assets (n 7) 28 [57].
42 ibid 35 [80].
43 cf Iran's argument that the jurisdiction conferred on the Court under the compromissory clause in the 1955 Treaty ‘includes jurisdiction to determine and apply the immunities at issue’. See ibid 26 [50] (emphasis added).
44 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v United States) (Mexico v United States) (Judgment) [2009] ICJ Rep 3, Declaration of Judge Abraham, 28.
45 Indeed, in the dispositifs of the judgments that the ICJ renders under compromissory clauses, the Court typically rules that a State has or has not breached an obligation under the relevant treaty. See eg Belgium v Senegal (n 16) 463 [122(5)].
46 Arctic Sunrise (n 4) [190], applied at [372], [392]–[393]. See also eg Duzgit Integrity (n 4) [208]; Wood (n 31) 359.
47 Bosnian Genocide (n 17) 105 [149], applied at eg 202–215 [385]–[415]. See also eg Immunities and Criminal Proceedings (Judgment) (n 15) [61]; Jadhav (n 7) 437–438 [71].
48 Chicago Convention Appeal (n 7) [41].
49 Articles on Responsibility of States for Internationally Wrongful Acts, art 22 in Yearbook of the ILC (2001) vol II, Pt Two, 26.
50 Chicago Convention Appeal (n 7) [41].
51 See eg UNCLOS, arts 2(3), 56(2); Mandate for Palestine, art 11; Statute of the River Uruguay, art 41(a); United Nations Convention against Transnational Organized Crime, art 4(1). See further below the references in fns 54 and 59, and the text to fns 70–75.
52 Forteau states that there are almost 100 such provisions. See Forteau, M, ‘Regulating the Competition between International Courts and Tribunals’ (2016) 15(2) LPICT 190, 195Google Scholar.
53 See eg Wood (n 31) 358; Forteau (n 52) 195.
54 See also eg Chagos (n 3) [459], [514]–[517], [520], [534]–[536]. In the jurisprudence of the Court, see Mavrommatis Palestine Concessions (n 28) 17, 26; Mavrommatis Jerusalem Concessions PCIJ Rep Series A No 5, 38–40; Pulp Mills (n 18) 42–46 [53]–[63], 99–100 [260]–[262].
55 Memorial of the Philippines, 30 March 2014, [6.114], [6.128]–[6.130], [6.147]; UNCLOS, art 94(3)(c), (5).
56 The South China Sea Arbitration (The Philippines v China), PCA Case 2013–19, Award, 12 July 2016, [1083], [1090].
57 ibid [1083], [1092], [1105], [1109]. In the dispositif of its award, the tribunal ruled that China had violated the COLREGS. See [1203(B)(15)]. For the reasons discussed at Section II.B above, this finding should not have been reflected in the dispositif.
58 See Section II.B.
59 Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 318 [78], 320 [90], 321–323 [93]–[102].
60 South China Sea (Award) (n 56) [945].
61 ibid.
62 See also South China Sea (Jurisdiction and Admissibility) (n 3) [176], [282]. See also eg Jadhav (n 7) 455 [135].
63 Oil Platforms (Judgment) (n 18) 178–179 [32]–[33].
64 ibid 182 [41].
65 ibid 182–199 [42]–[78].
66 See ibid 182 [41].
67 Judge Kooijmans appears to have been of the view that international law on the use of force was relevant to interpreting the word ‘necessary’ in art XX(1)(d). See ibid, Separate Opinion of Judge Kooijmans, 253 [23]. However, see eg Separate Opinion of Judge Owada, 317–318 [35]. The Court also invoked art I of the 1955 Treaty in support of its view (at 182 [41]). However, see eg Separate Opinion of Judge Buergenthal, 280 [25]. See also generally Kammerhofer, J, ‘Oil's Well that Ends Well?: Critical Comments on the Merits Judgement in the Oil Platforms Case’ (2004) 17(4) LJIL 695, 701–6CrossRefGoogle Scholar.
68 Oil Platforms (Judgment) (n 18), Separate Opinion of Judge Higgins, 238 [49]. See also Separate Opinion of Judge Kooijmans, 259 [42]–[43]; Kammerhofer (n 67) 702–3.
69 See also the discussion of Oil Platforms at Section III.C above. Even if one accepts that international law on the use of force were relevant to interpreting art XX(1)(d) of the 1955 Treaty, the Court's direct application of those external rules to the facts of the case, and determination that the United States’ actions constituted recourse to armed force not qualifying as self-defence, is such an ‘unexplained’ use of applicable law.
70 Chagos (n 3) [387], [457].
71 See eg ibid [391].
72 ibid [419].
73 ibid [448]. For the reasons discussed at Section II.B, this finding should not have been reflected in the dispositif. See [547(B)].
74 ibid [534]–[536].
75 See also Talmon, S, ‘The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals’ (2016) 65(4) ICLQ 927, 948CrossRefGoogle Scholar: ‘Few would have predicted in 1982 that a Part XV court or tribunal would … find that a colonial era undertaking created binding legal obligations under international law’.
76 Chagos (n 3) [220] (emphasis added).
77 Coastal State Rights (n 3) [158], [193], [195].
78 ibid [195] (emphasis added).
79 Enrica Lexie (n 5) [808].
80 ibid (emphasis added).
81 Bosnian Genocide (n 17) 105 [149].
82 This fourth situation does not encompass the third situation discussed above. The third situation does not recognise courts and tribunals as being competent to determine a subset of incidental issues. Rather, as discussed above, it recognises that, pursuant to the rule reflected in art 31(3)(c) of the VCLT, a court or tribunal can use external rules to determine the meaning of the treaty over which it has jurisdiction. The court or tribunal cannot decide issues under those rules.
83 Chagos (n 3) [220]; Enrica Lexie (n 5) [808] (fn 1454); Coastal State Rights (n 3) [158], [193]. In Coastal State Rights, the tribunal did not cite the PCIJ's judgment in Certain German Interests directly, but a passage from the Chagos award in which the Chagos tribunal relied on that judgment. The Enrica Lexie tribunal also cited two texts. Those texts assert that tribunals are competent to determine ‘incidental’ or ‘auxiliary’ questions, but neither explains the theoretical basis for this competence. See Cheng, B, General Principles of Law as Applied by International Courts and Tribunals (Grotius 1987) 266–7Google Scholar; Kotuby, CT and Sobota, LA, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press 2017) 159–60Google Scholar.
84 Certain German Interests in Polish Upper Silesia (Preliminary Objections) PCIJ Rep Series A No 6, 18. See also Certain German Interests in Polish Upper Silesia (Merits) PCIJ Rep Series A No 7, 25. See also fn 91 below.
85 Enrica Lexie (n 5), Concurring and Dissenting Opinion of Arbitrator Rao, [34]–[36]; Dissenting Opinion of Judge Robinson, [44]–[45], [52].
86 Geneva Convention, art 4(1). For the text of the provision, see Certain German Interests in Polish Upper Silesia (Preliminary Objections) (Documents) PCIJ Rep Series C No 9-1, 154.
87 See Certain German Interests (Merits) (n 84) 29–30.
88 See eg ibid 16.
89 ibid 25.
90 ibid 27–29. Lord Finlay considered that Poland was entitled to benefit from the Armistice Convention. See Observations of Lord Finlay, 84.
91 ibid 31. As Judge Robinson noted in the Enrica Lexie proceedings, in the passage from Certain German Interests quoted above, the Court merely stated that the ‘interpretation’ of the relevant external rules was within its competence. See Enrica Lexie (n 5), Dissenting Opinion of Judge Robinson, [45]. Notwithstanding this, the Court did apply the Armistice Convention and the Protocol of Spa, as described above.
92 See eg Pauwelyn, J, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003), 448CrossRefGoogle Scholar; Shelton, D, ‘Form, Function, and the Powers of International Courts’ (2009) 9(2) ChiJIntlL 537, 545Google Scholar.
93 See eg Buga, I, ‘Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals’ (2012) 27(1) IJMCL 59, 77–9Google Scholar.
94 See eg Tzeng, P, ‘Supplemental Jurisdiction under UNCLOS’ (2016) 38(2) HousJIntlL 499, 557–61Google Scholar.
95 Given space constraints, it is not possible here to go into the details of, and difficulties with, an argument based on inherent powers or the principle of effectiveness in treaty interpretation. Inherent powers are powers that derive from a court or tribunal's nature as a judicial body. They are ‘permanent’ and exist ‘irrespective of limitations placed on the court's jurisdiction’. See Brown, C, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 76(1) BYBIL 195, 205Google Scholar; Shelton (n 92) 539. Thus, one difficulty with attempting to justify the competence to determine incidental issues as an inherent power is that, in contrast to inherent powers, the competence to determine incidental issues (or certain external issues) can be excluded in the constitutive instrument of a particular court or tribunal. See eg fn 106 below and the text.
96 Brown (n 95) 226.
97 HG Schermers and NM Blokker, International Institutional Law (6th revd edn, Brill 2018) 194 [232]; NM Blokker, ‘International Organizations or Institutions, Implied Powers’, MPEPIL (online edition), April 2009, [5]–[6]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 79 [25].
98 Lauterpacht, E, ‘“Partial” Judgments and the Inherent Jurisdiction of the International Court of Justice’ in Lowe, V and Fitzmaurice, M (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press 1996) 465, 477Google Scholar. For further support for the view that the doctrine of implied powers can be applied to courts and tribunals, see Buga (n 93) 78; Brown (n 95) 227; Shelton (n 92) 571.
99 See generally Schermers and Blokker (n 97) 195 [233]; Blokker (n 97) [10]–[12]; Klabbers, J, An Introduction to International Organizations Law (3rd edn, Cambridge University Press 2015) 56–60CrossRefGoogle Scholar.
100 See especially eg Reparation for injuries suffered in the service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, Dissenting Opinion of Judge Hackworth, 198.
101 See especially eg ibid 180–184.
102 Regarding UNCLOS tribunals, this express power is conferred by art 288(1) of UNCLOS. Regarding the Court, this express power is conferred by art 36(1) of the Statute of the Court, combined with the compromissory clause applicable in the relevant case. Express powers may be given to an international organisation subsequent to the conclusion and entry into force of its constituent instrument by a separate legal instrument. See Blokker (n 97) [2].
103 See Brown (n 95) 229–37; Shelton (n 92) 557–71.
104 Regarding the Court, see Statute of the Court, art 38(1); LaGrand (Germany v United States) (Judgment) [2001] ICJ Rep 466, 502 [102]. Regarding UNCLOS tribunals, see UNCLOS, art 287(1). See generally Brown (n 95) 229–30; Shelton (n 92) 557–63.
105 See Cheng (n 83) 266 (‘Where a tribunal has jurisdiction in a particular matter, it is also competent with regard to all relevant incidental questions, subject to express provision to the contrary’) (emphasis added); Blokker (n 97) [18] (‘It would seem difficult to accept that by using implied powers international organizations could bypass, or even act against, what is covered by explicit powers’).
106 UNCLOS, art 293(1) (emphasis added).
107 Certain Iranian Assets (n 7) 22 [33], 30 [66].
108 Memorial of Iran, 1 February 2017, [5.5]–[5.6], [5.9]–[5.13].
109 See also CR 2018/33, 25–27 [2]–[8].
110 Certain Iranian Assets (n 7) 26 [50]. See also 26 [51].
111 ibid 32 [70].
112 ibid 31–32 [69]–[70].
113 See Section III.A above.
114 Chicago Convention Appeal, Memorial of the Quartet, 27 December 2018, [5.122].
115 See Section II.A above.
116 Chicago Convention Appeal (n 7) [61]. The Court speaks in terms of the ICAO Council ‘examin[ing]’ and ‘consider[ing]’ external issues. This is reminiscent of the language used by the Court in Croatia v Serbia, where the Court stated that, when determining whether there had been a breach of an obligation under the Genocide Convention, the Court was not prevented from ‘considering, in its reasoning, whether a violation of international humanitarian law or international human rights law has occurred’ (emphasis added). See further Section II.B above.
117 See also Croatia v Serbia (n 36) 45–46 [85].
118 See also Enrica Lexie (n 5), Concurring and Dissenting Opinion of Arbitrator Rao, [36]. cf Enrica Lexie (n 5) [795]–[802].
119 CR 2019/13, 75 [22]. See also CR 2019/15, 25 [12]: ‘Dr. Petrochilos expressed concern that the [Quartet] might end up with a decision from the Council concerning terrorism and interference in the affairs of other States which either side might claim—in any and all fora—is final and binding: res judicata’.
120 Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów) PCIJ Rep Series A No 13, Dissenting Opinion of Judge Anzilotti, 24.
121 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 100, Separate Opinion of Judge Greenwood, 180 [7].
122 See Section II.B above.
123 See eg Delimitation beyond 200 Nautical Miles (n 121), Joint Dissenting Opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge ad hoc Brower, 143 [6].
124 See eg Yotova, R, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’ (2017) 3(1) CJCCL 269, 277Google Scholar.
125 ‘15th Meeting’, 3 July 1920, in PCIJ Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee (Van Langenhuysen 1920) 331, 335; Delimitation beyond 200 Nautical Miles (n 121) 125 [58].
126 A Pellet and D Müller, ‘Article 38’ in A Zimmermann et al. (eds), Statute of the International Court of Justice (3rd edn, Oxford University Press 2019) 819, 924 [255], 927–8 [263]–[264], 931 [270]. See also Cheng (n 83) 24; International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128, Separate Opinion of Judge Sir Arnold McNair, 148; Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, Separate Opinion of Judge Sir Gerald Fitzmaurice, 66 [5].
127 De Ly, F and Sheppard, A, ‘ILA Interim Report on Res Judicata and Arbitration’ (2009) 25(1) ArbIntl 35, 42Google Scholar. Issue estoppel is generally not recognised in civil law systems. See ibid 50; Ridi, N, ‘Precarious Finality? Reflections on Res Judicata and the Question of the Delimitation of the Continental Shelf Case’ (2018) 31(2) LJIL 383, 385CrossRefGoogle Scholar.
128 De Ly and Sheppard (n 127) 36. See also Reinisch, A, ‘The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes’ (2004) 3(1) LPICT 37, 43Google Scholar.
129 Chagos (n 3) [230]. See also [224].
130 R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) 963, 998 [49]. See also Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 335 [146].
131 A Kiss, ‘Abuse of Rights’, MPEPIL (online edition), December 2006, [1]. See also BO Iluyomade, ‘The Scope and Content of a Complaint of Abuse of Right in International Law’ (1975) 16(1) HarvIntlLJ 47, 61; Cheng (n 83) 131–2.
132 AD Mitchell and T Malone, ‘Abuse of Process in Inter-State Dispute Resolution’, MPEPIL (online edition), December 2018, [8]; Kolb (n 130) 998 [49]; E de Brabandere, ‘“Good Faith”, “Abuse of Process” and the Initiation of Investment Treaty Claims’ (2012) 3(3) JIDS 609, 619–20.
133 Such claims have been upheld by investment tribunals. See eg Philip Morris Asia Limited v Australia, PCA Case 2012-12, Award on Jurisdiction and Admissibility, 17 December 2015, [585].
134 Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 334 [141].
135 ibid 335 [145], 336 [150]. See also Certain Iranian Assets (n 7) 40 [100], 42–43 [113]–[115]; Alleged Violations (n 25) [92]–[96]. The Court's judgment on preliminary objections in Immunities and Criminal Proceedings has been interpreted as suggesting that a claim of abuse of right can only be made at the merits stage. See eg Immunities and Criminal Proceedings (Preliminary Objections) (n 7), Dissenting Opinion of Judge Donoghue, 382 [4]; Certain Iranian Assets, CR 2018/28, 58 [90]. That is not what the Court stated in Immunities and Criminal Proceedings. The Court stated that ‘abuse of rights cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’. See Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 336–337 [150]–[151] (emphasis added). Where the right that has allegedly been abused is the right to seek judicial settlement of a dispute, that is not a right which is to be established at the merits phase.
136 Paulsson argues that abuse of right is not a general principle of law. See Paulsson, J, The Unruly Notion of Abuse of Rights (Cambridge University Press 2020) xCrossRefGoogle Scholar. Whether or not that is correct, abuse of right is applicable in the UNCLOS context by virtue of art 300.
137 South China Sea (Jurisdiction and Admissibility) (n 3) [124]–[126]. See also Barbados v Trinidad and Tobago, PCA Case 2004-02, Award, 11 April 2006, [208].
138 Mauritius/Maldives (n 3) [337]–[350].
139 An argument along similar lines appears to have been made by the Maldives in Mauritius/Maldives. See Written Observations of the Maldives, 15 April 2020, [137]–[140]. The Special Chamber of ITLOS did not have to address this particular argument, however, because the Special Chamber considered that it did not have to determine the incidental issue in question (sovereignty over territory), as it could be ‘inferred’ from the ICJ's Chagos Advisory Opinion that Mauritius has sovereignty over the territory in question. See Mauritius/Maldives (n 3) [110], [246], [250], [342]–[343], [348]–[349].
140 Some definitions of abuse of process or abuse of right include the obtaining of an ‘illegitimate advantage’ or the causing of injury or harm. See Kiss (n 131) [5]; Iluyomade (n 131) 61; Kolb (n 130) 998 [49]. In the circumstances under consideration, the illegitimate advantage would be the applicant State obtaining an incidental determination—albeit a non-binding incidental determination—on a dispute that the opposing State has not consented to settle.
141 Lowe, V, ‘Overlapping Jurisdiction in International Tribunals’ (1999) 20 AustYBIL 191, 204Google Scholar.
142 Immunities and Criminal Proceedings (Preliminary Objections) (n 7) 336 [150]. See also Alleged Violations (n 25) [93].
143 See eg the statements of Ukraine in connection with the Coastal State Rights proceedings. See Preliminary Objections of Russia, 19 May 2018, [32], [34]. The Court has stated that it cannot concern itself with the ‘political motivation’ which may lead a State to initiate proceedings. See Alleged Violations (n 25) [95]. A distinction can be drawn between situations in which a State has a broader political motivation for initiating proceedings and situations in which the motivation of an applicant State is to circumvent a lack of consent to dispute settlement. The latter is a legitimate concern for an international court or tribunal.
144 See eg Chicago Convention Appeal, Memorial of the Quartet, 27 December 2018, [1.4], [4.12]–[4.17], [5.2(b)]; Reply of the Quartet, 27 May 2019, [4.27]–[4.28]. See also Certain Iranian Assets, Preliminary Objections of the United States, 1 May 2017, [1.5], [5.5], [10.2].
145 For example, the travaux préparatoires of the Chicago Convention and the IASTA do not shed any light on the meaning or scope of the compromissory clauses in those treaties. See Proceedings of the International Civil Aviation Conference (US Government Printing Office 1948).
146 For example, the travaux préparatoires of the Geneva Convention indicate that the drafters envisaged that, when exercising jurisdiction under the compromissory clause in that Convention, the Court would be competent to determine whether obligations under the Convention had been breached. See ‘Hundred and Third Meeting’, 12 November 1948, UN Doc A/C.6/SR.103, 435–6 (Netherlands); ‘Hundred and Fourth Meeting’, 13 November 1948, UN Doc A/C.6/SR.104, 444 (United Kingdom).