Abstract
Article 80 (1) of the Rules of the Court introduces two requirements for the admissibility of counterclaims in proceedings before the Court: (1) that the counterclaim comes within the jurisdiction of the Court and (2) that the counterclaim is directly connected with the subject-matter of the principal claim. These requirements must apply cumulatively for a counterclaim to be joined to the proceedings already pending before the Court. The rationale underlying both conditions of admissibility of counterclaims is to counter-balance the right of States to present counterclaims by restricting this right so as to preclude States from presenting any counterclaim they wish.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 6, para 15.
- 2.
Hudson 1943, 292–293.
- 3.
Anzilotti 1930, 868–869, where the author stresses that the identical nature of the jurisdictional basis does not necessarily guarantee the existence of direct connection and, equally, that connection may exist even though the jurisdictional basis may not be the same. Also see, Genet 1938, 174–175; Thirlway 1999, 203–204, 213–215; S. Yee 2006, 911.
- 4.
Bosnian Genocide case, ICJ Rep. 1997, 243, at 264 (Declaration of Judge ad hoc Kreća). Contra ICJ Rep. 1997, 243, 284 para 18 (Separate Opinion of Judge ad hoc Lauterpacht).
- 5.
Thirlway 1999, 223.
- 6.
Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 11, para 32.
- 7.
The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948, 15, at 27. See also, East Timor Case (Portugal v. Australia), ICJ Rep. 1995, 90, at 101, para 26.
- 8.
Anzilotti 1930, 868–869.
- 9.
Genet 1938, 174–175.
- 10.
Rosenne 2000, 458.
- 11.
- 12.
Thirlway 1999, 202.
- 13.
Salerno 1999, 366–368.
- 14.
Murphy 2000, 17.
- 15.
S. Yee 2006, 911.
- 16.
The Court insists on being satisfied beyond any doubt that consent to its jurisdiction is present on the part of both litigant States. Instances of approaching this matter in a flexible manner have occasionally took place, as in the Nicaragua case, but they seem to constitute the exception rather than the rule. By contrast, the Monetary Gold principle is premised on this rigid approach to the existence of consent. In the East Timor case the Court applied the principle and declined to proceed to the stage of the Merits notwithstanding the allegation of Portugal that Australia had violated the right of self-determination of the people of East Timor, a right that the Court recognized giving rise to obligations erga omnes, including Australia.
- 17.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Preliminary Objections), ICJ Rep. 1984, 392, 426–427, para 80. (emphasis added).
- 18.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Provisional Measures), Order of 13 September 1993, ICJ 1993, 325, 427, para 80.
- 19.
Case Concerning Legality of the Use of Force (Yugoslavia v. Belgium) (Provisional Measures), ICJ Rep. 1999, 124, 130, para 14; Case Concerning Legality of the Use of Force (Yugoslavia v. The Netherlands) (Provisional Measures), ICJ Rep. 1999, 542, 548, para 14.
- 20.
ICJ Rep. 1999, 124, 139, para 44; ICJ Rep. 1999, 542, 556–557, para 44.
- 21.
Cf. Rosenne supra n. 10; Yee 2006, 911–912: “Article 80 (1) does not expand or contract the jurisdiction of the Court; it merely permits a counterclaim within the jurisdiction of the Court to be presented in the proceedings by the claimant”; a restrictive interpretation of the jurisdiction requirement “would amount to a further restriction of Article 80 (1) and would displace the normal operation of jurisdictional principles.”
- 22.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Counter-Claims), Order of 17 December 1997, ICJ Rep. 1997, 243, 257, para 31.
- 23.
As Judge Cançado Trindade stated in his dissenting opinion in the Jurisdictional Immunities case, a review of the practice of the Court on the matter of counterclaims shows that such practice “is still in the making”, Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 28.
- 24.
This appears to constitute a particular aspect of the general question of States opting for a particular method of settlement to resolve particular disputes. See generally, Collier and Lowe 1999, 8–10.
- 25.
PCIJ Ser. D No. 2 (Third Addendum) (1936), 109.
- 26.
Thirlway 2001, 175 and n. 502, has expressed the view that in disputes submitted to the Court by special agreement “the two conditions of admissibility [of counterclaims, namely, jurisdiction and direct connection] will overlap or be no more than two expressions of the same idea … claims by each party against the other are in effect foreseen by the terms of the special agreement and it is artificial or meaningless to refer to some as ‘claims’ and some as ‘counter-claims’; their direct connection is obvious from their being part of the whole dispute as defined in the special agreement, which at the same time confers jurisdiction on them all … if a party attempts to bring in by way of counter-claim some matter not contemplated by the special agreement … such an attempt would fall foul automatically of both the two requirements for admissibility of counter-claims …”; Thirlway 1999, 201.
- 27.
Rosenne 2001, 85: “… the use of the term ‘other party’ implies that Rule 80 can apply whatever the basis of the Court’s mainline jurisdiction …”
- 28.
Cf. Rosenne 2000, 475; Rosenne 2007, pp. 291–292. Rosenne takes the view that counterclaims may be presented under “framework agreements” such as the one concluded between Colombia and Peru in the context of the Asylum dispute. These are agreements that define a dispute in broad terms and the presentation of counterclaims may help, according to Rosenne, clarify the precise nature of the dispute.
- 29.
The Asylum case (Colombia/Peru), ICJ Rep. 1950, 266, at 268. Cf. Rosenne 2001supra n. 27.
- 30.
Ibid.
- 31.
The Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction and Admissibility), ICJ Rep. 1978, 3 at 37–44, paras 94–108.
- 32.
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility), ICJ Rep. 1995, 6, at 17–21, paras 32–40.
- 33.
ICJ Rep. 1994, 112, at 124, para 36.
- 34.
Id., 124–125, paras 37–38.
- 35.
See supra Chap. 2.
- 36.
Legality of the Use of Force Case (Yugoslavia v. Spain) (Provisional Measures), ICJ Rep. 1999, 761, at 773, paras 29–30.
- 37.
Legality of the Use of Force Case (Yugoslavia v. USA) (Provisional Measures), ICJ Rep. 1999, 961, at 923, paras 21–25.
- 38.
The declaration of Honduras was filed on 20 February 1960 and was amended on 28 May 1986 by inserting reservations to the jurisdiction of the Court.
- 39.
Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility), ICJ Rep. 1988, 69, at 82–88, paras 29–41.
- 40.
Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 820, 821, para 53 and operative para (2) of the dispositif.
- 41.
Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998,190, 204, para 36.
- 42.
Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 819, paras 49–50.
- 43.
Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998, 190, pp 218–219 (sep. op. Judge R. Higgins) [emphasis in the original]; contraid., 234, Judge ad hoc Rigaux (dissenting opinion): “The Rules of the Court do not contemplate any extension of jurisdiction in favour of the admissibility of the counter-claim: to be admissible, the counter-claim must fall within the jurisdiction of the court before which the original claim is pending.”
- 44.
Id., 220–221.
- 45.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Jurisdiction and Admissibility), ICJ Rep. 1998, 275, at 295, para 34.
- 46.
Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November 2003, ICJ Rep. 2003, 161, at 211, para 111.
- 47.
Id., 211–212, para 111.
- 48.
Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits)), Judgment of 19 December 2005, ICJ Rep. 2005, 168, at 274, para 322.
- 49.
Id., 275, para 326.
- 50.
See Article 36 (2) of the ICJ Statute. See also Article 36 (5) of the ICJ Statute.
- 51.
Case Concerning Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections), ICJ Rep. 1957, 125, at 146–147.
- 52.
See loc. cit. supra n. 45.
- 53.
Reservations ratione personae seek to exclude disputes with specific States. Reservations ratione temporis concern the time the dispute or the facts giving rise to it emerged and reservations ratione materiae are relative to the subject-matter of the dispute.
- 54.
See International Court of Justice Yearbook 2002–2003, No 57, 141.
- 55.
See id., 143–145.
- 56.
In this case the jurisdiction of the Court was established on the basis of the Optional Clause.
- 57.
Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda) (Counter-Claims), Order of 29 November 2001, ICJ Rep. 2001, 660, 684–685.
- 58.
See infra Sect. 4. 2 of this Chapter. See also supra the discussion of Jurisdictional Immunities in the context of compromissory clauses.
- 59.
Contra Salerno 1999, 368, where the author maintains that forum prorogatum is not sufficient to transform the autonomous character of the Court’s jurisdiction with respect to the principal claim.
- 60.
Lauterpacht 1958, 103. [footnote omitted].
- 61.
See “The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism”, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51, 216, at 217.
- 62.
Id., 218.
- 63.
Id., 221.
- 64.
Rights of Minorities in Polish Upper Silesia (Minority Schools), PCIJ Ser. A No 15 (1928), 24.
- 65.
PCIJ Ser. A No 15 (1928), 23. Also see Mavromatis Jerusalem Concessions case, PCIJ Ser. A No 5 (1925), 27. In Mavromatis the Permanent Court exercised jurisdiction on the basis of Protocol XII of the Treaty of Lausanne (1923) although the dispute was referred to the Court on the basis of Article 26 of the Palestine Mandate. However, in this case the United Kingdom, the respondent State, expressly consented to the invocation of Protocol XII as jurisdictional basis.
- 66.
The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948, 15, 19, 27–29.
- 67.
Haya de la Torre Case (Colombia v. Peru), ICJ Rep. 1951, 71, 78.
- 68.
Anglo-Iranian Oil Co. case (Jurisdiction), ICJ Rep. 1952, 93, 113–114.
- 69.
The Provisional Measures requested by Bosnia additional to those indicated by the Court in its Order of 8 April 1993 included the cessation on the part of Yugoslavia of all acts aiming at the dismemberment of Bosnia and Herzegovina, a statement of illegality of annexation of territory by force and the acquisition by Bosnia of the means to prevent and defend the State and its people from acts of genocide, dismemberment and partition. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Further Request), Order of 13 September 1993, ICJ Rep. 1993, 325, 332–333, para 6.
- 70.
Id., 341–342, para 34.
- 71.
Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction—Admissibility), Judgment of 3 February 2006, ICJ General List No 126, www.icj-cij.org, para 19.
- 72.
Id., para 21.
- 73.
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, paras. 60–61.
- 74.
Id., para 62.
- 75.
Id., para 63; also see “The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism”, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51,216, at 217.
- 76.
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, para 64.
- 77.
Id., para 67. See also paras 68–69.
- 78.
Id., para 87.
- 79.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Merits), Judgment of 26 February 2007, ICJ General List No 91, www.icj-cij.org, paras. 80–141, esp. para 121 et seq.
- 80.
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, paras. 83, 87–88.
- 81.
The conclusions of the Court attracted criticism in this respect by certain Judges. See id. per Judges Ranjeva (separate opinion), Tomka (separate opinion) and Judge ad hoc Guillaume (declaration). By contrast Judge Owada (declaration) considered the approach of the Court as too restrictive because in his view the arrest warrants issued against high-ranking officials of Djibouti should have fallen under the Court’s jurisdiction on the basis of forum prorogatum as the distinction that the Court drew between its earlier jurisprudence on the basis of other forms of consent and the latter was unwarranted.
- 82.
Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and USA), ICJ Rep. 1954, 19, 32.
- 83.
Case Concerning East Timor (Portugal v. Indonesia), ICJ Rep. 1995, 90, 102, paras 28–29.
- 84.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Jurisdiction and Admissibility), ICJ Rep. 1984, 392, 430, para 86.
- 85.
ICJ Rep. 1984, 392, 431, para 88.
- 86.
Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections), ICJ Rep. 1992, 240, 261, para 55. Contra id. 301–302 (per Judge Jennings); 326–328 (per Judge Ago); 329–343 (per Judge Schwebel). The Court admitted that implications for the legal situations of third parties may arise but ruled that Article 59 of the ICJ Statute sufficiently guarantees the protection of third parties’ interests that may be affected by litigation. Article 59 of the ICJ Statute provides that: “The decision of the Court has no binding force except between the parties and in respect of the particular case.”
- 87.
Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (Nicaragua Intervening), ICJ Rep. 1990, 92, 107–135, paras 35–101.
- 88.
ICJ Rep. 1981, 3.
- 89.
ICJ Rep. 1984, 3.
- 90.
See supra Chap. 3.
- 91.
PCIJ Ser. D No. 2 (Third Addendum) (1936), 105.
- 92.
Id., 106; also see Anzilotti 1930, 863–864.
- 93.
Anzilotti 1930, 864 expressing the view that it is a matter of diligence on the part of third States (Ėtat diligent) to be apprised of the content of the written proceedings.
- 94.
Case Concerning Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-claims), ICJ Rep. 1997, 243, 259, para 39.
- 95.
Case Concerning Oil Platforms (Iran v. USA) (Counter-claim), ICJ Rep. 1998, 190, 205 para 42.
- 96.
Cameroon v. Nigeria Case (Counter-claims), ICJ Rep. 1999, 983, 986.
- 97.
Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Counter-claims), ICJ Rep. 2001, 660, 681 para 47.
- 98.
Case Concerning Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-claims), ICJ Rep. 1997, 243, 285 (sep. op. Judge ad hoc Sir E. Lauterpacht).
- 99.
Id., 297 (diss. op. Judge Weeramantry).
- 100.
S. Rosenne 2006, 817–818.
- 101.
Id., 819.
- 102.
Rosenne op. cit. supra n. 100, 887 et seq.
- 103.
The Court has expressed a variety of options it has in the Barcelona Traction Case (Preliminary Objections), ICJ Rep. 1964, 6, at 43.
- 104.
Rosenne op. cit. supra n. 100, 820–821.
- 105.
Id., 822.
- 106.
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Jurisdiction-Admissibility), ICJ Rep. 1984, 392, at 425 para 76; id., ICJ Rep. 1986, 14, at 29 para 37.
- 107.
Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), ICJ Rep. 2004, 12, 29 para 24.
- 108.
Panevezys-Saldutiskis Railway Case, PCIJ Ser. A/B No 75 (1939), 56.
- 109.
ICJ Rep. 1986, 14, 29–31, paras 37–41 et seq.
- 110.
Rosenne op. cit. supra n. 100, 890–891.
- 111.
Case Concerning Oil Platforms (Iran v. USA) (Counter-claim), ICJ Rep. 1998, 190, 221–223 (Judge R. Higgins sep. op.).
- 112.
Id., 222: “Parties to litigation should be treated in a comparable manner. But, from the silence of the Court in the present Order, it seems that what it saw as a jurisdictional question when determining United States preliminary objections to the main claim it treats as a matter for the merits when considering Iran’s response to the counter-claims”.
- 113.
Id., 222.
- 114.
Ibid.
- 115.
Id., 222–223.
- 116.
Case Concerning Oil Platforms (Iran v. USA) (Merits), ICJ Pleadings 2003, CR 2003/14, 17 www.icj-cij.org.
- 117.
Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November 2003, ICJ Rep. 2003, 161, at 210, para 105.
- 118.
Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, paras 270–272, www.icj-cij.org; cf. S. Rosenne 2007, 288.
- 119.
Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, paras 270–272, www.icj-cij.org paras 273–275.
- 120.
Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judges Keith and Greenwood (sep. op.) paras 3–9.
- 121.
Rosenne op. cit. supra n. 100, 897.
- 122.
Case Concerning Oil Platforms (Iran v. USA) (Merits), ICJ Pleadings 2003, CR 2003/14, 19 www.icj-cij.org.
- 123.
Id., CR 2003/19, 13.
- 124.
Id., CR 2003/19, 13–14.
- 125.
Interhandel Case (Switzerland v. USA) (Provisional Peasures), ICJ Rep. 1957, 107, 118–119 (Judge Sir H. Lauterpacht separate opinion).
- 126.
This position has been adopted by the Court twice in its jurisprudence, in the Oil Platforms case (jurisdiction) and in the Congo v. Uganda case (admissibility).
- 127.
It is the consistent practice of the Court so far not to hold hearings in counterclaim proceedings.
- 128.
On this point see Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge ad hoc Gaja (declaration): “In case of a denial of jurisdiction, the defendant State would be effectively prevented from bringing to the Court the inadmissible counter-claim as a separate claim.”
- 129.
Genet 1938, 165, 177–178 expressed the view that “direct connection” appeared an inflexible concept having the potential of restricting the making of counterclaims; id., 166–167 taking the view that connection is manifested by the fact of unity of the object of litigation.
- 130.
PCIJ Ser. A No 17 (1928), 38.
- 131.
See supra Chap. 3.
- 132.
Cf. Thirlway 1999, 209–210, maintains that Poland had invoked Article 256 of the Treaty of Versailles both as a defence on the merits and a basis of counterclaim. As a result “the counterclaim was connected with the principal claim via the defence … this was a counterclaim that could not but be examined in justice to the respondent.” In other words, according to Thirlway, the Permanent Court by applying the “juridical connection” appears to have addressed a particular contingency in the circumstances of the specific case before it rather than introducing an additional requirement for the admissibility of counterclaims.
- 133.
See supra Sect. 1.2.2.
- 134.
Anzilotti 1930, 870.
- 135.
See supra Chap. 3.
- 136.
PCIJ Ser. D No. 2 (Third Addendum) (1936), 105.
- 137.
Ibid.
- 138.
PCIJ Ser. D No. 2 (Third Addendum) (1936), 111.
- 139.
Id., 112.
- 140.
Ibid.
- 141.
Id., 113. Judge van Eysinga expressed the same view, ibid.
- 142.
Ibid.
- 143.
Id., 115.
- 144.
Id., 114.
- 145.
PCIJ Ser. A/B No 70 (1937), 28.
- 146.
PCIJ Ser. A/B No 53 (1933), 24.
- 147.
Asylum Case (Colombia/Peru), ICJ Rep. 1950, 266, at 280. It must be noted that the last phrase “in any case the maintenance of the asylum constitutes at the present time a violation of that treaty” did not appear in the counterclaim as was formulated in the Counter-Memorial of Peru, but was inserted for the first time during the oral proceedings.
- 148.
ICJ Rep. 1950, 266, at 280–281.
- 149.
Case Concerning Rights of Nationals of the United States of America in Morocco (France v. USA), ICJ Rep. 1952, 176, at 181.
- 150.
Id., 203–213. In the dispositif the Court ruled with regard to the latter issue that “in applying Article 95 of the General Act of Algeciras, the value of merchandise in the country of origin and its value in the local Moroccan market are both elements in the appraisal of its cash wholesale value delivered at the custom-house.”
- 151.
ICJ Rep. 1997, 243, at 252 para 11.
- 152.
Id., 252–253 para 12.
- 153.
Id., 254 para 18.
- 154.
Id., 255 paras 20–21.
- 155.
Id., 258 para 33.
- 156.
Id., para 34.
- 157.
Id., para 35.
- 158.
Id., 268.
- 159.
Ibid.
- 160.
Id., 268–270.
- 161.
Id., 270.
- 162.
Id., 281.
- 163.
Id., 282.
- 164.
ICJ Rep. 1998, 190, at 193 para 4.
- 165.
Id., 197, paras 15–16.
- 166.
Id., para 17.
- 167.
Id., para 18.
- 168.
Id., 200–201 para 23.
- 169.
Id., 204–205 paras 37–38.
- 170.
Id., 227–230.
- 171.
Id., 234.
- 172.
Id., 235.
- 173.
ICJ Rep. 1999, 983, at 985.
- 174.
ICJ Rep. 2001, 660, at 667 para 10.
- 175.
Id., 667–668 paras 11–12.
- 176.
Id., 668 para 13.
- 177.
Id., 669–670 para 14.
- 178.
Id., 678 para 36.
- 179.
Id., 678–679 paras 38–39.
- 180.
Id., 679–680 paras 40–41.
- 181.
Id., 680 paras 42–43.
- 182.
Id., 684 (Judge ad hoc Verhoeven, declaration).
- 183.
Namely, prior to the overthrow of the government of President Mobutu Sese Seko and the renaming of the State as DRC in May 1997.
- 184.
Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, para 281, www.icj-cij.org
- 185.
Id., para 291.
- 186.
Id., paras 293–294.
- 187.
Id., para 314; the DRC also contended that the claim concerning the inhumane treatment of Ugandan nationals was inadmissible because the requirements for the exercise of diplomatic protection had not been met, id., para 315.
- 188.
Id., paras 327–332. By contrast, the Court ruled that the claim concerning the maltreatment of Ugandan nationals not enjoying diplomatic status at the Kinshasa international airport was inadmissible because it did not meet the requirements of the exercise of diplomatic protection.
- 189.
ICJ Rep. 2001, 660, at 679, para 40.
- 190.
Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, para 326, www.icj-cij.org
- 191.
See Thirlway 1999, 217.
- 192.
See ICJ Rep. 2001, 660, at 684 (Judge ad hoc Verhoeven, declaration), supra n. 182.
- 193.
According to Salerno 1999, 351 this is the conclusion to be drawn by appreciating direct connection in the light of the principle of procedural economy; however, this does not give the Court an absolutely unlimited discretion to act as it deems necessary; id., 360–361, 364–365.
- 194.
Genet 1938, 166–167 taking the view that connection is manifested by the fact of unity of the object of litigation.
- 195.
- 196.
See Lopes Pegna 1998, 735.
- 197.
The additional argument advanced by Bosnia, namely, that the non-reciprocal and erga omnes nature of the crime of genocide sought to reinforce the position on lack of direct connection.
- 198.
Cf. Thirlway 1999, 217: “The mere simultaneity of facts occurring on the same territory would be insufficient to make claims based on them ‘part of the same factual complex’ for the purposes of establishing a direct connection; if Yugoslavia alleged that one of its diplomats had been treated in a manner inconsistent with his immunities the facts of the outrage would have fulfilled this test of the ‘factual complex’ but it must be questionable whether a claim based on it would have been admissible as a counterclaim”. Thirlway appears to support a rather narrow version of the “factual complex” concept; however, the contingency he invokes by way of example constituted the subject-matter of Uganda’s second counterclaim in Congo v. Uganda and the Court ruled in favour of its admissibility indicating a more flexible approach to the issue. By contrast, Rosenne 2000, 476 takes the view that the “factual complex” criterion is very wide comprising many factors, such as, the title to jurisdiction, the time-span of the counterclaim in relation to the time-span of the principal claim, the territorial aspect, the instruments invoked in the counterclaim, the objective of restoring legality in the relations of the parties to the dispute.
- 199.
Cf. Salerno 1999, 351–352.
References
“The Forum Prorogatum before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism”, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51, p 216
Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. J du Droit International 57:857
Collier J, Lowe V (1999) The Settlement of Disputes in International Law. Oxford University Press, Oxford
Genet R (1938) Les Demandes Reconventionelles et la Procédure de la Cour Permenente de Justice Internationale. Révue de Droit International et de Législation Comparée 19:145
Hudson MO (1943) The Permanent Court of International Justice 1920–1942. Macmillan, New York
Lauterpacht SH (1982) The Development of International Law by the International Court, London 1958. Reprinted by Grotius, Cambridge
Lopes Pegna O (1998) Counter-claims and Obligations erga omnes before the International Court of Justice. EJIL 9:724
Murphy SD (2000) Amplifying the World Court’s Jurisdiction through Counter-claims and Third-Party Intervention. Geo Wash Int’l L Rev 33:5
Rosenne S (2000) Counter-claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. The Hague, Kluwer
Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules of the Court. LJIL 14:77
Rosenne S (2006) The Law and Practice of the International Court 1920–2005 Vol. III (Procedure), 4th edn. M. Nijhoff, Boston
Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Boston Ch. 16
Salerno F (1999) La Demande Reconventionelle dans la Procédure de la Cour Internationale de Justice. RGDIP 103:329
Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide Convention and the Oil Platforms Decisions. LJIL 12:197
Thirlway H (2001) The Law and Procedure of the International Court of Justice 1960–1989, Part Twelve. BYIL 72:38
Yee S (2006) Article 40. In: Zimmermann A et al (eds) The Statute of the International Court of Justice. A Commentary. Oxford University Press, Oxford
Zimmermann A et al (eds) (2006) The Statute of the International Court of Justice. A Commentary. Oxford University Press, Oxford
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2011 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author
About this chapter
Cite this chapter
Antonopoulos, C. (2011). Admissibility of Counterclaims. In: Counterclaims before the International Court of Justice. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-790-6_4
Download citation
DOI: https://doi.org/10.1007/978-90-6704-790-6_4
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-90-6704-789-0
Online ISBN: 978-90-6704-790-6
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
