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Counterclaims before the International

Court of Justice

Constantine Antonopoulos

Counterclaims before the


International Court of Justice

123

Constantine Antonopoulos
Department of Law
Democritus University of Thrace
University Campus
69 100 Komotini
Greece
e-mail: kantonop@law.duth.gr

ISBN 978-90-6704-789-0

e-ISBN 978-90-6704-790-6

DOI 10.1007/978-90-6704-790-6
T.M.C. ASSER

PRESS,

The Hague, The Netherlands, and the author 2011

Published by T.M.C. ASSER

PRESS,

The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER

PRESS

by Springer-Verlag Berlin Heidelberg

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To Vanessa and Giannos

Preface

I am indebted to Dr. Olympia Bekou of the University of Nottingham and


Mr. Michael Vagias of the Hague Law Institute for their assistance in acquiring
material that was helpful in the research and writing of the text.
I also wish to express my thanks to Asser Press for the publication of this
monograph and particularly to Mr. Philip van Tongeren and Ms. Marjolijn
Bastiaans for their invaluable assistance.
Last but not least, I express my love and deep gratitude to my wife Vanessa and
my son Giannos for their encouragement and patience during the preparation of
this book.
Komotini 2011

C. Antonopoulos

vii

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The
2.1
2.2
2.3

Concept of Counterclaims in International Litigation . . . . .


Counterclaims as a Municipal Private Law Analogy . . . . . . .
Counterclaims in Municipal Law: A Brief Overview . . . . . . .
Counterclaims in International Arbitration . . . . . . . . . . . . . .
2.3.1 The Permanent Court of Arbitration . . . . . . . . . . . . .
2.3.2 The UNCITRAL Arbitration Rules (1976) . . . . . . . . .
2.3.3 The Iran-US Claims Tribunal . . . . . . . . . . . . . . . . . .
2.3.4 The World Trade Organization Understanding
on Rules and Procedures Governing the Settlement
of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.5 The International Centre for Settlement of Investment
Disputes (ICSID) . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.6 The International Chamber of Commerce (ICC)
Rules of Arbitration (1998) . . . . . . . . . . . . . . . . . . .
2.3.7 The International Law Commissions Model Rules
on Arbitral Procedure (1958) . . . . . . . . . . . . . . . . . .
2.4 The International Tribunal for the Law of the Sea (ITLOS) . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Counterclaims before the ICJ: Evolution and Definition
3.1 The Evolution of the Rule on Counterclaims . . . . . .
3.1.1 The Permanent Court of International Justice .
3.1.2 The International Court of Justice . . . . . . . . .
3.2 Defining Counterclaims . . . . . . . . . . . . . . . . . . . . .
3.2.1 The Literature. . . . . . . . . . . . . . . . . . . . . . .
3.2.2 The Court . . . . . . . . . . . . . . . . . . . . . . . . .

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ix

Contents

3.2.3
3.2.4
3.2.5
3.2.6
3.2.7
References

The Rationale or Purpose of Counterclaims


before the ICJ. . . . . . . . . . . . . . . . . . . . . . . . . . . .
A Counterclaim is not a Defence on the Merits . . . .
Counterclaims before the ICJ do not Constitute
Cross-Action. . . . . . . . . . . . . . . . . . . . . . . . . . .
Counterclaims before the ICJ and Claims at Set-Off
A Counterclaim is not a Plea of tu quoque . . . . .
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Admissibility of Counterclaims . . . . . . . . . . . . . . . . . . . . . . .
4.1 The Jurisdiction of the Court . . . . . . . . . . . . . . . . . . . . .
4.1.1 The Extent of the Subject-Matter Jurisdiction
of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.1.2 Jurisdiction on Counterclaims from the Point View
of the Bases of Expressing Consent. . . . . . . . . . . .
4.1.3 The Position of Third States. . . . . . . . . . . . . . . . .
4.1.4 Preliminary Objections to Jurisdiction and
Admissibility Concerning Counterclaims . . . . . . . .
4.1.5 Evaluation of the Jurisprudence of the Court . . . . .
4.2 Direct Connection . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2.1 Evaluation of the Jurisprudence of the Court . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1 Presentation of Counterclaims in the Counter-Memorial .
5.2 Equality of the Parties . . . . . . . . . . . . . . . . . . . . . . . .
5.3 Oral Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4 Undue Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.5 The Position of Third States . . . . . . . . . . . . . . . . . . . .
5.6 Withdrawal or Discontinuance of Counterclaims . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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142
145
150
152
154
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Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

157

Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

163

Table of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

169

Table of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

171

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

173

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

175

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Abbreviations

BYIL
Ch.
Co.
Denv. J. Intl L. and Poly
diss. op.
DRC
ed./eds.
EEZ
EJIL
et al.
Geo. Wash. Intl L. Rev.
Ibid.
ICC
ICJ
ICJ Rep.
ICJ Rules
ICJ Statute
ICSID
Id.
Iran-US CTR
ITLOS
LJIL
n.
No.
Para
Paras
PCA
PCIJ

British Yearbook of International Law


Chapter
Company
Denver Journal of International Law and Policy
dissenting opinion
Democratic Republic of the Congo
Editor/editors
Exclusive Economic Zone
European Journal of International Law
et alios (and others)
George Washington International Law Review
Ibidem (exactly the same)
International Chamber of Commerce
International Court of Justice
Reports of Judgments and Advisory Opinions of the
International Court of Justice
Rules of Procedure of the International Court of
Justice
Statute of the International Court of Justice
International Convention for the Settlement of
Investment Disputes
Idem (the same)
Iran-United States Claims Tribunal Reports
International Tribunal for the Law of the Sea
Leiden Journal of International Law
footnote
number
paragraph
paragraphs
permanent Court of Arbitration
Permanent Court of International Justice
xi

xii

PCIJ Rules
PCIJ Statute
RGDIP
sep. op.
Ser.
UN
UNCITRAL
UNCLOS
US
USA
v.
WTO

Abbreviations

Rules of Procedure of the Permanent Court of


International Justice
Statute of the Permanent Court of International
Justice
Rvue Gnrale de Droit International Public
separate opinion
Series
United Nations
United Nations Commission on International Trade
Law
United Nations Convention on the Law of the Sea
United States of America
United States of America
versus
World Trade Organization

Chapter 1

Introduction

The presentation of counterclaims is a right of the respondent party in a litigation


that is accepted in the major systems of municipal law. It provides the respondent
with the opportunity to turn against the plaintiff in the course of the same proceedings and pursue its own outstanding claims. The admissibility of counterclaims is subject to requirements prescribed by the relevant rules of Civil
Procedure Law. These are basically two: first, that a counterclaim must fall under
the jurisdiction of the court before which the principal action is pending and,
secondly, that a counterclaim must be connected with the subject-matter of the
principal action. While there is consistency and generality in regulation with
regard to the requirement of jurisdiction this is not the case in relation to connection; as it happens, the municipal law of a fair number of States allows the
presentation of counterclaims even though no connection exists with the subjectmatter of the principal action.
The right to present counterclaims is admitted in litigation on the international
plane.1 This is mainly a result of the reliance of international law on analogies
from municipal law, a reliance that is formally recognized as one of the sources of
international law in Article 38 (1) (c) of the Statute of the International Court of
Justice. The drawing of analogies in the field of arbitration and judicial settlement
of disputes has been very frequent,2 mainly for reasons of practical necessity and
facility in adaptation, and has formed the basis upon which concepts of municipal
procedure law have to be adapted to the particularities of international litigation
and developed through the jurisprudence of international courts and tribunals.
Thus, the Rules of Procedure of contemporary, mainly institutionalized, arbitration
and of the International Court of Justice expressly provide for the right of a
respondent party to present counterclaims. The requirements of admissibility of
counterclaims under both means of pacific settlement of dispute are two: first that a

1
2

See generally, Larschan and Mirfendereski 19861987, 11; Renteln 19861987, 379.
Lauterpacht 1927, viii.

C. Antonopoulos, Counterclaims before the International Court of Justice,


DOI: 10.1007/978-90-6704-790-6_1,
T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

1 Introduction

counterclaim comes within the jurisdiction of the Court or arbitral tribunal and,
secondly, that it is directly connected with the subject-matter of the Applicants
claim. Unlike municipal law, connection is compulsory in international litigation
because of the consensual nature of the jurisdiction of the Court and arbitral
tribunals and, secondly, of the fact of specific class of dispute resolved by a
number of courts and tribunals.
The Rules of Procedure of the International Court of Justice expressly stipulate
the right to make counterclaims. In this respect, the Court has followed the practice
of its predecessor, the Permanent Court of International Justice that appears to be a
pioneer in the field of judicial settlement of disputes on the international plane by
expressly introducing the right to present counterclaims in its Rules of Procedure.
The present provision on counterclaims is Article 80 of the Rules of the Court
(introduced in 1978 and revised in 2000) and is the product of a process of
evolution that was formulated to substantial extent by the jurisprudence of the
Court. The basic stages of this evolutionary process are the following:
1. The jurisdiction of the Court constituted the single requirement for the admissibility of counterclaims in the Rules of Procedure of the Permanent Court
adopted upon its establishment in 1920 (Article 40). In the Chorzw Factory
case (1928), however, the Court found that a juridical connection existed
between the principal claim of Germany and the counterclaim of Poland.
2. Under the influence of the Judgment of the Permanent Court in the Chorzw
Factory case and, to considerable extent, the views of one of its Members,
Judge Dionisio Anzilotti, direct connection with the subject-matter of the
principal claim was added as the second requirement of the admissibility of
counterclaims after a major revision of the Permanent Courts Rules in 1936.
The requirements of jurisdiction and direct connection have remained
unchanged ever since.
3. In 1978, after an extensive revision of the Rules of the International Court, the
admissibility of counterclaims has become the subject of incidental proceedings. This of itself constitutes a significant development for it implies a procedural emphasis on the independent character of counterclaims qua claims.
Hitherto, counterclaims were evaluated both as to their admissibility and substance at the Merits stage of the main proceedings. The practice of the Court
under Article 80 of the present Rules separates the evaluation of jurisdiction
and direct connection for the admissibility of counterclaims from their substantive content and subjects them to a distinct set of incidental proceedings.
4. The Rules of Procedure of the International Court of Justice since its establishment in 1946 introduced the apparent obligation of the Court to hold
hearings in the event of doubt as to the existence of connection between the
principal claim and the counterclaim. However, in all cases where counterclaims were discussed in incidental proceedings the Court reached its decision
without holding any hearings.
The practice of the Court with respect to counterclaims under Article 80 of the
Rules has led to the issuance of five Orders. The first four were made under the

1 Introduction

original version of Article 80 (1978) in the period 199720013 and the fifth under
the revised Article 80 (2000) in July 2010.4 As a result of this practice the Court
has elaborated on a definition of counterclaims which is lacking and on the
requirements of jurisdiction and direct connection.
The subject of the present book is confined to counterclaims in the International
Court of Justice. The motivation behind the writing of the text has been threefold:
First that the subject-matter jurisdiction of the International Court is not restricted
to a particular area of international law and in this respect is universal in character.
Therefore, the requirements of jurisdiction and direct connection are not immediately and directly established with respect to a counterclaim. Secondly, the
increasing readiness of respondent States to present counterclaims. This in itself
appears to indicate a willingness to introduce additional aspects of a wider dispute
beyond the subject of the principal Application instituting proceedings that may
represent only part thereof. This in turn reveals the complexity of many disputes
and it implies a willingness on the part of the respondent State to have many
aspects of an overall dispute settled with finality in a specific case. It also reveals
an avenue of litigation strategy that becomes open for the respondent State in that
it is possible to mitigate the final outcome on the Merits of the main proceedings.
Thirdly, the small attention devoted to counterclaims at the International Court in
the literature.5 The subject has been dealt either in sections (as it happens not very
extensive) of general works on the Court6 or in articles and contributions in
general works.7 The present writer thinks that even though small, compared to
preliminary objections or provisional measures, the jurisprudence of the Court on
counterclaims offers a basis for the exposition of the aspects of these incidental
proceedings in a monograph. The book addresses the admissibility of counterclaims under Article 80 of the Rules and ventures into their substance in so far as
this is necessary to explain issues of jurisdiction and admissibility beyond the
parameters of Article 80. Moreover, the case law of both the Permanent Court and
the present Court is addressed as a single corpus of jurisprudence. The book

3
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) (1997); Oil Platforms case (Iran v. USA) (1998);
Cameroon v. Nigeria case (1999); Armed Activities on the Territory of the Congo case
(D.R. Congo v. Uganda) (2001).
4
See Jurisdictional Immunities of the State (Germany v. Italy) (2010).
5
In his dissenting opinion in the Jurisdictional Immunities (Counter-Claim) case Judge Canado
Trindade remarked that unlike provisional measures of protection counter-claims have not
received sufficient attention from expert writing to date; 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 Canado Trindade (diss. op.), para 4.
6
See Hudson 1943, 292293; S. Rosenne 2006, 12321241; Thirlway 2001, 174181;
Zimmermann et al. 2006, 907918.
7
For a particularly influential study on counterclaims see Anzilotti 1930, 857; see also Genet
1938, 145; Rosenne 2000, 457; Rosenne 2001, 77; Rosenne 2007, Ch. 16; Thirlway 1999, 197;
Lopes Pegna 1998, 724; Murphy 20002001, 5; Salerno 1999, 329.

1 Introduction

consists of six Chapters: Introduction (Chap. 1), four main Chapters and Conclusions (Chap. 6).
Chapter 2 begins with a discussion of private law analogies of international law
and the position of counterclaims as such. It then reviews very briefly counterclaims in municipal law of various States and its remainder deals with the right
(or lack of it) to make counterclaims in international arbitration, the International
Tribunal of the Law of the Sea and the World Trade Organization (WTO) dispute
settlement mechanism.
Chapter 3 deals with the evolution of the relevant provision of the Rules of the
PCIJ and the ICJ on counterclaims and the issue of defining counterclaims.
It traces the developments on the formulation of the Rules concerning counterclaims from 1920 to the latest revision of Article 80 in 2000. The record of
the views of the Judges of the Permanent Court during the Revision process in
19341936 is extensively recounted to as well as the case law of Court until the
revision of 1978 of the ICJ Rules. The remainder of the Chapter deals with the
issues of definition of counterclaims on the basis of the case law of the ICJ under
the 1978/2000 Rules, the distinction between counterclaims and pleas of defence,
tu quoque, set-off and cross-action, and finally, the issue of the compatibility of
making a counterclaim against a principal claim alleging the violation of a rule of
jus cogens.
Chapter 4 is devoted to the two requirements of admissibility of counterclaims,
namely, jurisdiction and direct connection. The first section deals with jurisdiction
and discusses whether a counterclaimant respondent may present counterclaims
that exceed the exact subject-matter of the principal claim in the context of the
same jurisdictional basis and provided that direct connection is present. Moreover,
it deals with preliminary objections to jurisdiction and admissibility beyond the
context of Article 80. The second section is devoted to direct connection and
reviews the case law of the Court with respect to connection in fact and connection
in law. The two sections are disproportionate in length: the one on jurisdiction is
more extensive than the one on direct connection. The reason is that discussion of
the jurisdiction of the Court in relation to counterclaims appears to be somewhat
cursory in the literature because of an assumption that once jurisdiction is established with regard to the principal claim it is automatically established for the
counterclaim. Also, in the majority of cases where counterclaims were presented
the principal Applicants did not raise objections to the jurisdiction of the Court.
Although jurisdiction with regard to the counterclaim must exist on the same basis
as the principal claim, the counterclaim of the USA in the Oil Platforms case
raised the issue of whether the subject-matter of a counterclaim may exceed the
subject-matter of the principal claim always within the parameters of the same
jurisdictional basis provided that direct connection exists. Furthermore, the
objections to jurisdiction and admissibility of Iran and the Congo, the principal
Applicants in the Oil Platforms and the Congo versus Uganda cases, respectively,
were treated as objections not of a preliminary character and the Court expressly
distinguished between the jurisdiction and admissibility of a counterclaim under
Article 80 and jurisdiction and admissibility with respect to the merits of the

1 Introduction

counterclaim. Finally, the most recent Order of the Court in the Jurisdictional
Immunities case rejected Italys counterclaim because it did not come under the
jurisdiction of the Court. The decision was reached after Germany raised an
objection to the jurisdiction of Italys counterclaim that was evaluated at the
Counterclaim stage and not at the Merits stage. The practice of the Court with
regard to the requirement of jurisdiction is not extensive and this warrants caution
in extracting general conclusions. Nevertheless, it appears to emerge from this
practice that the approach of the Court to jurisdiction is very rigorous and
inflexible because of its consensual nature. Therefore, it appears that jurisdiction
may constitute a more formidable hurdle for the admissibility of a counterclaim
than direct connection; and that a principal Applicant is more (or at least equally)
likely to succeed in having a counterclaim rejected by contesting the jurisdiction of
the Court rather than the direct connection between claim and counterclaim. The
Court has approached the requirement of direct connection, on the other hand,
broadly and flexibly. In addition, it is its stated intention to exercise a wide margin
of discretion in evaluating the existence of direct connection.
Chapter 5 discusses certain issues of procedure and is based on the case law of
the Court since the 1930s. More specifically, it deals with the obligation to present
counterclaims in the Counter-Memorial, the concern that was voiced by individual
Judges of the Court with respect to the principle of the equality of the parties, the
delay in the main proceedings, the decision (very consistent as it seems) of the
Court to reach its Orders on counterclaims without holding hearings, the position
of third States with respect to the presentation of counterclaims and the effect of
discontinuance of proceedings on counterclaims.
Chapter 6 consists of the conclusions reached on the basis of the discussion in
the preceding Chaps. 14. The practice of the Court on the presentation of
counterclaims is not as extensive as with respect to other instances of incidental
proceedings. It has acquired, however, some frequency and a measure of consistency is emerging under Article 80 of the present Rules of the Court which allows
for the deduction of certain conclusions and the making of some tentative insights.
In any event, this practice warrants more attention to and further study of the right
to present counterclaims before the ICJ; the aim of this book is to contribute in this
direction.

References
Anzilotti D (1930) La Demande Reconventionelle en Procdure Internationale. 57 J du Droit
International 857
Genet R (1938) Les Demandes Reconventionelles et la Procdure de la Cour Permanente de
Justice Internationale, 19 Rvue de Droit International et de Lgislation Compare 145
Hudson MO (1943) The Permanent Court of International Justice 19201942. New York,
pp 292293
Larschan B, Mirfendereski G (19861987) The Status of Counterclaims in International Law,
with particular reference to International Arbitration involving a Private Party and a Foreign
State. 15 Denv. J. Intl L. & Poly 11

1 Introduction

Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London.
Reprinted in 2002 by The Law Book Exchange Union, p viii
Lopes Pegna O (1998) Counter-claims and Obligations Erga Omnes before the International
Court of Justice. 9 EJIL 724
Murphy SD (20002001) Amplifying the World Courts Jurisdiction through Counter-claims and
Third-party Intervention. 33 Geo. Wash. Intl L. Rev. 5
Renteln AD (19861987) Encountering Counterclaims. 15 Denv. J. Intl L. & Poly 379
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 Jos Maria Ruda. Kluwer, p 457
Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules
of Court. 14 LJIL 77
Rosenne S (2006) The Law and Practice of the International Court 19202005 Vol. III
(Procedure). M. Nijhoff, Ch. 16
Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Ch. 16
Salerno F (1999) la Demande Reconventionelle dans la Procdure de la Cour Internationale de
Justice. 103 RGDIP 329
Thirlway H (1999) Counterclaims Before the International Court of Justice: The Genocide
Convention and Oil Platforms Decisions. 12 LJIL 197
Thirlway H (2001) The Law and Procedure of the International Court of Justice 19601989, Part
Twelve. 69 BYIL 37 174181
Zimmermann A et al (eds) (2006) The Statute of the International Court of Justice A
Commentary, Oxford, pp 907918

Chapter 2

The Concept of Counterclaims


in International Litigation

2.1 Counterclaims as a Municipal Private Law Analogy


Counterclaims constitutes a concept of municipal law; more specifically, it is a
concept of private law and, in particular, of civil procedure law. Its adoption in
international litigation, in general, and in the Rules of Procedure of the International Court of Justice and its predecessor, the Permanent Court of International
Justice, in particular, constitutes an exercise in private law analogy in the sphere of
international law. The theoretical basis and practical application of this type of
analogy in the field of international law has been dealt with by, at least, two
eminent authorities.
Judge Sir Arnold McNair in his Separate Opinion in the International Status of
South-West Africa case expressed the matter in the following terms:
What is the duty of an international tribunal when confronted with a new legal institution
the object and terminology of which are reminiscent of the rules and institutions of private
law? To what extent is it useful or necessary to examine what may at first sight appear to be
relevant analogies in private law systems and draw help and inspiration from them? International law has recruited and continues to recruit many of its rules and institutions from
private systems of law. Article 38 (1) (c) of the Statute of the Court bears witness that this
process is still active The way in which international law borrows from this source is not
by means of importing private law institutions lock, stock and barrel, ready-made and fully
equipped with a set of rules. It would be difficult to reconcile such a process with the
application of the general principles of law. In my opinion, the true view of the duty of
international tribunals in this matter is to regard any features or terminology which are
reminiscent of the rules and institutions of private law as an indication of policy and principles rather than as directly importing these rules and institutions 1

1
International Status of South-West Africa, Advisory Opinion of July 11, 1950, ICJ Rep. 1950,
128, at 148.

C. Antonopoulos, Counterclaims before the International Court of Justice,


DOI: 10.1007/978-90-6704-790-6_2,
 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

2 The Concept of Counterclaims in International Litigation

Secondly, Sir Hersch Lauterpacht has demonstrated, in a major classical


monograph,2 not only the theoretical possibility but also the reality of drawing, by
way of analogy, concepts from municipal private law in formulating the doctrine
of international law and dealing with issues of substantive content of the law both
in the practice of States (such as the law of treaties and State succession) and the
settlement of disputes by arbitration. In his view, the making of private law
analogies has the result of enriching international law and promoting its development rather than undermining its autonomy as a legal system.3 In this latter
respect, he has fiercely attacked the positivist doctrine prevailing throughout the
ninetieth and early twentieth centuries that denied any relevance to private law
concepts in international law and was as a matter of principle hostile to it lest it
undermined international law as a self-sufficient system of law.4 He has also
exposed the total lack of substance of the positivist position, which, as he proved,
in reality accepted a significant role of private law concepts in international law
under disguise, by devising the term conceptions of general jurisprudence to
describe it.5 In Lauterpachts view, the positivist doctrine of the day introduced
the rejected private law in a disguised form or under a different name and this
reduced positivist theory to a matter of form and not of substance.6 An example
of the classical positivist doctrine criticized by Lauterpacht is the view expressed
by Anzilotti, a leading positivist, on the possibility of making counterclaims before
the Permanent Court: pour nous, il suffira d observer que, tant donn la possibilit de crer un rapport judiciaire entre deux sujets moyennant la demande
unilatral d un de ces sujets (demandeur), il est galement possible que l autre
sujet (dfendeur) demande son tour quelque chose qui soit plus que le simple
rejet de la demande de l adversaire. le Rglement se rfre aux notions de droit
gnralement admises et les adopte ainsi dans son propre champ.7
Although Articles 38 (3) of the Statute of the Permanent Court and 38 (1) (c) of
the Statute of the International Court of Justice that admit general principles of law
as a source of international law apparently constitutes a final and authoritative
abandonment of the misleading doctrine that international law is a self-sufficing
doctrine of rules 8 they have not dispensed with the issue of private law analogies. For there may be lack of unanimity in interpreting State practice, Article 38
as a treaty provision is subject to the vicissitudes to which all treaties are liable
, the application and interpretation of the Statute of the Court is likely to be
carried out through the prism of positivism, and analogy is in principle excluded as
a result of the difference between the subjects of the two systems of law (municipal

2
3
4
5
6
7
8

Lauterpacht 1927.
Id., 8384.
Id., 78, 5051.
Id., 1723.
Id., 3137.
Anzilotti 1930, 858, 867 [emphasis added].
Lauterpacht 1927, 6768, 71.

2.1 Counterclaims as a Municipal Private Law Analogy

and international).9 Lauterpacht has warned, however, that private law analogies
have limitations. In the first place, an analogy may not be drawn in relation to
concepts peculiar to a particular municipal law but only to general principles of
private law recognized by the main systems of jurisprudence. Secondly, not
every relation between States has its counterpart in private law. Thirdly, it is not
necessary to seek legal regulation in private law if the rules of international law
provide a sufficient basis for it. Finally, the lack of an international court with
universally compulsory jurisdiction and a central authority to enforce the law in the
international community would result in the inaccuracy of certain analogies without
going as far as distorting existing rules of international law.10
Counterclaims appear to fall in the first class of points of contact between
international law and private law identified by Lauterpacht as including cases in
which legal relations normally forming the subject-matter of international law are
shaped in accordance with or by analogy to a conception of private law; in
particular, counterclaims constitute part of a contingency where rules of procedure as developed in the sphere of arbitration between private persons are used as a
basis of the procedure of international courts and tribunals.11 The rules of procedure of private law constitute an indispensable source of international litigation
for the work of international courts was and is impossible without a large
measure of recourse to general principles of private law.12 In this respect they
either complement international law in the absence of rules provided by custom
and treaties13 or they have been adopted by the International Court and other
international tribunals in the exercise of their capacity to formulate their own rules
of procedure.14 The inclusion of counterclaims in a great number of these rules
constitutes precisely a realization of this power. Moreover, the fact that the right to
make counterclaims is not in principle an indispensable procedural requirement
without which the work of an international court would be impossible (such as the
principles of res judicata, the equality of the parties or the probative value of
evidence), its inclusion in many texts of rules of procedure on the international
plane is proof of the admission of their pertinence by analogy with municipal law.
9

See a revised version of Chapter I of Analogies in Lauterpacht 1975, 173, 182183.


Lauterpacht 1927, 8487.
11
Lauterpacht 1975, 173174.
12
Lauterpacht 1927, 210211.
13
Id., 203 et seq.
14
Cf. Rosenne 2000, 476; Rosenne 2007, 293. Rosenne argues that a counterclaim before the
ICJ is a purely self-standing institution following its own logic, its own procedure and its own
rules. It is immaterial whether it was initially inspired by one or other system of internal law or by
theories of abstract jurisprudence. Its development has followed parallel developments in the
Courts general law and practice, particularly as regards its jurisdiction and the seisin of
the Court. Analogies drawn from internal law and practice are of little relevance for litigation in
the International Court. This view appears not to deny in principle the relevance of an analogy
with municipal law in relation to counterclaims and it is akin to Judge McNairs position that
resort to general principles of domestic law does not signify their wholesale import into
international law.
10

10

2 The Concept of Counterclaims in International Litigation

Indeed, it may be said that the provision of a right to present counterclaims before
an international court or tribunal is a private law analogy that aims not simply at
making its function possible but constitutes an acknowledgment of and response to
the complex and multi-faceted nature of international disputes and the need to
address it in a comprehensive and effective fashion15 and that this is achieved by
recourse to private law of procedure is proof of the continuing relevance of
Lauterpachts major contribution to the theory of international law. It is also
manifested with respect to the question of the definition of counterclaims.16

2.2 Counterclaims in Municipal Law: A Brief Overview17


The right of a respondent to bring counterclaims or cross action is admitted by
virtually all municipal civil procedure legislation.18 The underlying reason for this
is that the parties affected by a certain transaction or occurrence may be reasonably
expected to bring claims arising from it. Therefore, if one of them (plaintiff)
institutes proceedings asserting a claim against the other (respondent), the latter
may have an interest not only in having this claim rejected by the court but also in
obtaining a judgment against plaintiff on his own claim.19 Moreover, a
respondents counterclaim is not considered as a defence, aiming just at defeating
the plaintiffs action, but rather an independent exercise of his right to bring an
action.20 The rationale for allowing the admissibility of counterclaims rests on
grounds of judicial economy because a counterclaim arises from the same legal
relationship as the plaintiffs action and this dictates a settlement of both in the
course of the same proceedings. Moreover, the presentation of a counterclaim aims
at mitigating the effects of the main action.21
A counterclaim may be raised only in the course of the proceedings initiated by
the plaintiffs action and, for this reason, it is dependent upon it. Thus, the plaintiff
must not withdraw his action and the proceedings must not have been terminated
by the issuing of a judgment before the filing of the counterclaim. By contrast if a
counterclaim is properly raised it ceases to depend on the subsequent fate of the
plaintiffs action.22
15

Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July


2010, ICJ General List No 143 www.icj-cij.org, Judge Canado-Trindade (dissenting opinion),
paras 4, 15, 19. [hereinafter referred to as Jurisdictional Immunities case].
16
See infra Chap. 3.
17
Cappelletti 1973, 6269.
18
A rare exception occurs in the Swiss Canton of Aargau the Civil procedure Code of which
(Art. 15) does not permit the making of counterclaims. See Cappelletti 1973, 63 (n. 594).
19
Id., 62.
20
Ibid.
21
See Beys, Calavros, Stamatopoulos 2001, 344.
22
Cappelletti 1973, 6465.

2.2 Counterclaims in Municipal Law: A Brief Overview

11

The core requirement for the admissibility of counterclaims appears to be the


connection between claim and counterclaim. This connection is premised on the
same legal context from which the plaintiffs claim arises. In the Continental and
Romanic legal systems it is interpreted broadly.23 Thus under paragraph 33 of the
Civil Procedure Code of Germany and Article 36 of the Civil Procedure Code of
Italy connection is established even on the basis of a relationship to a means of
defence against the plaintiffs action.24 In addition to connection, admissibility is
also subject to the requirement that a counterclaim must be susceptible to the same
kind of proceedings as the plaintiffs claim, whereas if the value of the counterclaim exceeds the courts subject-matter jurisdiction then it is possible either to
refer the entire proceedings to a higher court or to separate the counterclaim and
subject it to special proceedings.25 Furthermore, a counterclaim is not admissible
in the cases where a respondent is not entitled to invoke his right by way of
defence, as it is the case with respect to the protection of the rights of possession of
the plaintiff.26 In case of a counterclaim that is totally unconnected to the plaintiffs claim there is no uniformity of regulation. Thus, in French (Art. 70 Civil
Procedure Code) and Portuguese (Art. 274 Civil Procedure Code) law such
counterclaims are inadmissible.27 By contrast in Spanish (Art. 542 (2.3) Civil
Procedure Code) and most Latin American countries law (for instance, Art. 357
Argentina Civil Procedure Code; Art. 190 Brazil Civil Procedure Code; Art. 260
Mexico Civil Procedure Code) they are admissible provided they fall under the
courts subject-matter jurisdiction.28 In German and Austrian law the matter is left
to the discretion of the court.29 By contrast, in Greek law (Art. 268 Civil Procedure
Code) a connection between the principal action and the counterclaim is not
required.30
In English law counterclaims may be brought under section 39 of the Judicature
Act of 1925. There is no requirement of a relationship between claim and counterclaim and the courts have absolute discretion to dismiss or uphold counterclaims
in this respect.31
In US law32 the bringing of counterclaims is regulated in rule 13 of the Federal
Rules on Civil Procedure, which is followed by the civil procedure legislation of
the federal units of the USA. The Federal Rules introduce a distinction between

23

Id., 63.
Ibid.
25
Ibid.
26
Id., 64.
27
Ibid. n. 608.
28
Ibid. n. 609.
29
Ibid. n. 610.
30
Beys, Calavros, Stamatopoulos 2001, 347.
31
Cappelletti 1973, 65.
32
Id. 65, 6768. Also see Larchan and Mirfendereski 19861987, 39 et seq.; Renteln 1986
1987, 380381.
24

12

2 The Concept of Counterclaims in International Litigation

compulsory counterclaims [rule 13 (a)] and permissive counterclaims [rule 13 (b)].


A counterclaim is compulsory for the respondent if it arises from the same
transaction or occurrence that constitutes the subject-matter of the plaintiffs
action; if he fails to bring a counterclaim, then he is debarred from doing so in the
future (even as the subject of a separate action) by operation of the principle of res
judicata. A permissive counterclaim is one that is not related to the plaintiffs
claim, though there is controversy whether its admissibility requires that it falls
independently under the federal courts jurisdiction or that jurisdiction over the
plaintiffs claim would be sufficient.33
Other legal systems do not expressly provide for compulsory counterclaims,
except in specialized proceedings concerning particular areas of the law (e.g.,
family disputes); in all other cases a respondent who failed to bring a counterclaim
is not precluded from doing so in the future because of the effect of res judicata of
a judgment concerning the plaintiffs claim.34 Moreover, with respect to countercounterclaims, namely, counterclaims brought by the original plaintiff against
counterclaims raised by the respondent against the principal claim there is no
uniformity of regulation. Some legal systems do not allow them on the basis of the
Canon law principle reconventio reconventionis non admittitur while other systems admit them provided that there is a connection between the new claim against
the counterclaim and no undue delay is caused for the plaintiffs original action.35

2.3 Counterclaims in International Arbitration


Anzilotti36 has ruled out the possibility of counterclaims in cases of arbitration
because the existence of a special agreement submitting a dispute to this particular
means of settlement, first, laid down the precise object and boundaries of the
dispute and, secondly, it precluded the formal (as opposed to the material)
determination of the parties thereto as plaintiff and respondent. As he wrote:
Il ne pouvait, videmment, pas tre question de demande reconventionelle dans la
procdure internationalle, tant que la seule forme judiciaire de solution des litiges entre
Etats a t l arbitrage, au sens troit du mot. Les demandes que les intresss voulait
soumettre la decision des arbitres devaient trouver leur expression dans le compromise,
lequel tablissait donc dfinitivement l oblet et les limites de la controverse. Pour que
maisse le problme de la possibilit de la demande reconventionelle, il est ncessaire que
les parties assument, non seulement matriellement, mais formalement, les roles de
demandeur et de dfendeur

33

Cappelletti, 1973, 65.


Id., 67.
35
Id., 69.
36
Anzilotti 1930, 857. Also see Anzilottis comments in the course of the drafting of Article 40
of the PCIJ Rules of Procedure in 1922, Preliminary Session, 25th Meeting, March 9, 1922, PCIJ
Ser. D No 2 (1922), 139-140, and the revision process of the PCIJ Rules in PCIJ Ser. D No 2
(Third Addendum) (1936), 109.
34

2.3 Counterclaims in International Arbitration

13

This extremely strict position, however, does not appear accurate both as a
matter of principle and as a matter of arbitral practice. Scelle, in his report to the
International Law Commission on Arbitral Procedure took the view that counterclaims were not precluded in principle in the absence of express provision in a
compromis.37 There is no doubt that all arbitration is governed by the terms of the
special agreement that establishes it. Whether counterclaims may be brought or not
by either of the parties is a matter, first, of the terms of the compromis. If it
expressly excludes the making of counterclaims, then the issue is settled there. But
if it is silent, then it is a matter of how the dispute is defined. If this is formulated in
narrow and specific terms, then the possibility of raising counterclaims equally
narrows to the point of exclusion. However, if it is defined broadly and if it can be
deduced from the terms of the special agreement that the intention of the parties is
to achieve a final settlement of all outstanding issues pending between them, then
counterclaims may not be a priori excluded simply because the method of settlement is arbitration and there is no formal determination of applicant and
respondent. Moreover, Anzilottis position is not supported by the practice of
arbitral tribunals, in particular those set up under institutionalized arbitration. Both
the Permanent Court of Arbitration (PCA), in existence at the time of Anzilottis
writing, and post-1945 institutionalized arbitration allow the bringing of
counterclaims.

2.3.1 The Permanent Court of Arbitration


The original Rules of Procedure of the PCA of 1899 and 1907 were silent on the
possibility of bringing counterclaims. Nevertheless, in two cases which were
decided in 1913, namely The Carthage (France v. Italy) and the Manouba (France
v. Italy) the PCA addressed the possibility of making counterclaims.38 Both cases
arose as a result of the seizure by the Italian Navy of two French steamers during
the Italo-Turkish war of 19111912.
On January 16, 1912 a destroyer of the Italian Navy intercepted the French mail
steamer Carthage on the high seas in the Mediterranean. The commander of the
destroyer considered that an aeroplane that was carried by the French steamer and
that was to be delivered to a private individual in Tunis constituted contraband of
war. The aeroplane could not be trans-shipped on the destroyer and, therefore, the
Carthage was ordered to follow the destroyer to the Italian port of Cagliari. She
was released on January 20, 1912. France requested the tribunal to adjudge
compensation to be paid by Italy for breach of its obligations toward neutral
shipping and for the losses and damage suffered by private parties interested in

37

Report by Georges Scelle (Special Rapporteur) on Arbitral Procedure, Doc. A/CN.4/18


(1950), Yearbook of the International Law Commission 1950, Vol. II, 114, at 137, para 78.
38
It is noteworthy that in both cases D. Anzilotti served as counsel for Italy.

14

2 The Concept of Counterclaims in International Litigation

the steamer and its voyage.39 Italy, in her submissions to the tribunal, did not
confine herself to requesting the rejection of the French claims, but requested the
tribunal to adjudge what amounted to a counterclaim against France: that the
French Government shall be obliged to pay the sum of two thousand and seventytwo francs, twenty-five centimes, the amount of the expense caused by the seizure
of the Carthage.40 This additional request for compensation meant that Italy
requested something more going beyond a mere defence for the rejection of the
French claim. The tribunal did not consider Italys counterclaim and finally ruled
that Italy should pay 160,000 francs as compensation to France.41
The Manouba, another French mail steamer, was intercepted by a destroyer of the
Italian Navy on 18 January 1912. The Italian crew visited the steamer and discovered
among the passengers twenty-nine Turkish individuals, suspected of being members
of the Ottoman army. The steamer was subsequently conducted to the port of
Cagliari, where the captain of the Manouba was ordered to surrender the twenty-nine
individuals to the Italian authorities. He refused to comply and the Italian authorities
proceeded to seize the Manouba. Following the seizure of the steamer its master
delivered the twenty-nine Turkish passengers and the vessel was allowed to continue
its voyage. France requested the tribunal to adjudge the payment of compensation by
Italy for violations of her obligations under the law of war at sea and for losses
suffered by individuals interested in the vessel and its voyage.42 For her part Italy
again did not only request the rejection of the French claim. She asked the tribunal to
rule that France should pay compensation to Italy, first, for violation of her obligation to respect the right of a belligerent to verify the status of individuals suspected
of being enemy soldiers and found on board of a neutral freighter and, secondly, for
the expenses incurred with respect to the seizure of the Manouba.43 Again, the
submissions of Italy in this respect constituted something more than a mere
defence intended to reject the French claims and, as such, partook the character of
counterclaims. The tribunal ruled that Italy had a right to arrest the Turkish passengers on board the ship and awarded compensation to France only for the loss and
damage suffered by private parties with an interest in the steamer and its voyage.
However, this compensation was reduced to the extent of the amount due to Italy for
the expenses incurred for the custody of the Manouba.44
These two early cases that were considered by the PCA are illustrations that
counterclaims were admissible in spite of the absence of an express provision in
the rules of procedure of arbitration conducted within its framework. In fact, in the

39

The Carthage (France v. Italy), PCA, Award of 6 May 1913, www.pca-cpa.org/upload/


files/Carthage%20EN.pdf, 2.
40
Id., 3.
41
Id., 5.
42
The Manouba (France v. Italy), PCA, Award of May 6, 1913, www.pca-cpa.org/upload/files/
Manouba%20EN.pdf, 3.
43
Id., 34.
44
Id., 7.

2.3 Counterclaims in International Arbitration

15

Manouba case the tribunal even upheld the Italian counterclaims, the first partially
with respect to the lawfulness of the arrest of the Turkish passengers and the
second in its entirety. Therefore, it may be inferred that in the case of silence in
regulation of the matter of counterclaims in the rules of procedure of an arbitral
tribunal, because of the absence either of a provision expressly allowing them or of
a provision expressly prohibiting them, they are admissible, at least, as an analogy
with municipal law on civil procedure.
The Optional Rules of Procedure of the PCA currently in force applicable to a
wide variety of categories of disputes admit the right to bring counterclaims. Thus,
the PCA Optional Rules for Arbitrating Disputes between States (1992)45 provide
in Article 19 (3) that:
In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim arising out of the same treaty or other agreement or rely on a claim
arising out of the same treaty or other agreement for the purpose of a set-off.

In Article 19 (3) of the PCA Optional Rules for Arbitrating Disputes between
Two Parties of which only One is a State (1993)46 it is stipulated that:
In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim arising out of the same contract or rely on a claim arising out of the
same contract for the purpose of a set-off.

Moreover, Article 19 (3) of the PCA Optional Rules for Arbitration Involving
International Organizations and States (1996)47 provides that:
In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in
article 3, paragraph 3(c).

Furthermore, Article 19 (3) of the PCA Optional Rules for Arbitration between
International Organizations and Private Parties (1996)48 states that:
In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in
article 3, paragraph 3(c).

45

Text in http://www.pca-cpa.org/upload/files/2STAENG.pdf.
Text in http://www.pca-cpa.org/upload/files/1STAENG.pdf.
47
Text in http://www.pca-cpa.org/upload/files/IGO2ENG.pdf. Article 3, paragraph 3(c) states
that The notice of arbitration shall include the following: (c) A reference to the constituent
instrument of the organization and to any rule, decision, agreement or relationship out of or in
relation to which the dispute arises.
48
Text in http://www.pca-cpa.org/upload/files/IGO1ENG.pdf. Article 3, paragraph 3(c) states
that The notice of arbitration shall include the following: (c) A reference to the arbitration
clause or the separate arbitration agreement that is invoked
46

16

2 The Concept of Counterclaims in International Litigation

Finally, Article 19 (3) of the PCA Optional Rules for Arbitration of Disputes
Relating to Natural Resources and/or the Environment (2001)49 provides that:
In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in
article 3, paragraph 3(c).

All these provisions are premised on the UNCITRAL Arbitration Rules with
certain modifications corresponding to the particular category of dispute. In
arbitrations conducted within the framework of the PCA the tribunals in the
particular disputes have not adopted the optional rules of procedure drafted by the
PCA in relation to the right of making counterclaims. They either relied on other
existing general set of rules, such as the UNCITRAL rules, or on rules particular to
arbitration procedure already provided for within an institutional framework, or
introduced rules of procedure, which, though inspired by the PCA Optional Rules,
deviate from them in the case of the right to make counterclaims. In the Bank for
International Settlements and Private Parties case the dispute concerned claims by
certain private shareholders against the Bank (BIS) arising out of the decision of
the Board of Directors, in September 2000, to restrict the right of private parties to
hold shares in the BIS and to amend the Banks Statute, in January 2001, so as to
exclude private shareholders by paying compensation the sum of which had been
fixed by the Bank in advance.50 The applicants invoked Article 54 (1) of the BIS
Statutes by virtue of which disputes, inter alia, between the BIS and its shareholders shall be submitted to the arbitral tribunal established under Article XV of
the Hague Convention on the Complete and Final Settlement of the Question of
Reparations (1930). The Rules of Procedure of this tribunal are to be found
in Annex XII of the Hague Convention, Article 6 paragraph 2, (4) of which
provides that
Counter-Cases shall contain: conclusions based on the facts stated; these conclusions
may include counter-claims, in so far as the latter come within the jurisdiction of the
Tribunal;

On 23 March 2001 the tribunal that was constituted to hear the claims, adopted
its Rules of Procedure, Article 14 (2) of which (entitled Statement of Defence)
reads:
The Statement of Defence shall affirm or contest the facts stated in the Statement of Claim
and shall present a statement of additional facts, if any, a statement of law and conclusions
based on the facts stated. Those conclusions may include counter-claims, insofar as the
49

Text in http://www.pca-cpa.org/upload/files/ENVIRONMENTAL(3).pdf. Article 3, paragraph


3(c) states that The notice of arbitration shall include the following: (c) a reference to any
rule, decision, agreement, contract, convention, treaty, constituent instrument of an organization
or agency, or relationship out of, or in relation to which, the dispute arises
50
Dr. Horst Reineccius (Claim No. 1), First Eagle SoGen Funds Inc. (Claim No. 2), Mr. Pierre
Mathieu and La Socit de Concours Hippique de la Chtre (Claim No. 3) v. Bank for
International Settlements, PCA, Award of 19 September 2003, para 5, http://www.pca-cpa.org.

2.3 Counterclaims in International Arbitration

17

latter come within the jurisdiction of the Tribunal. The respondent shall list the documents
in support and shall attach them to the Statement of Defence (emphasis added)

Thus, Article 14 (2) of the Rules of the arbitral tribunal established under the
Hague Settlement Convention is in conformity with the Rules of Procedure
introduced by Annex XII of the Convention.51 The BIS raised a counterclaim
against First Eagles claim alleging a breach of Article 54 of the Banks Statutes
because the claimant sought relief for its alleged financial loss in the courts of the
USA. The BIS argued that the submission of claims against it to arbitration was
compulsory precluding any recourse to municipal courts. Moreover, the Bank
counterclaimed US $ 587,000 as compensation for the expenses it incurred in
defending First Eagles lawsuit before the US courts.52 The tribunal allowed the
counterclaim of BIS and ruled that53
First Eagle violated its obligations under the Banks Statutes and unlawfully required
the Bank to expend a considerable amount in defending its rights under the Statutes,
giving the Bank a right of reparation

It then proceeded by awarding the Bank damages to the sum of US


$ 587,413.49 for the litigation expenses before the US courts and ruled that this
compensation was to be off-set against sums owed to First Eagle as a result of the
award of the tribunal.54 The BIS case is an illustration that a counterclaim, though
functionally a means of defence against an original claim, is substantially a means
of raising an autonomous claim on the part of a respondent (in this case the breach
of the applicants obligation to submit the dispute to arbitration) that may give rise
to an entitlement of compensation that, in turn, may be settled by way of a set-off
against the applicants original claim.
The BarbadosTrinidad and Tobago arbitration concerned the delimitation of
the EEZ and continental shelf of the parties under Part XV and Annex VII of the
UN Convention on the Law of the Sea (UNCLOS). The Rules of Procedure of the
tribunal constituted under Annex VII of the UNCLOS provided in Article 9 (2) (c)
that the counter-memorial of Trinidad and Tobago may contain:
A statement of the relief or remedy sought by the Republic of Trinidad and Tobago

The wording of the provision appears to allow the raising of counterclaims. In


submission 3 (c) of its counter-memorial, Trinidad and Tobago requested the
tribunal to delimit the continental shelf of the parties to its outer limit, extending
beyond the 200 mile distance from the baselines.55 Barbados objected to
51

Article 1 (1) of the Rules for Arbitration between the Bank for International Settlements and
Private Parties of 23 March 2001 provides that in case of conflict with, inter alia, the provisions
of Annex XII of the Hague Convention, the latter shall prevail.
52
Supra n. 50, para 49 et seq.
53
Id. para 119.
54
Ibid.
55
Barbados and the Republic of Trinidad and Tobago, PCA, Award of 11 April 2006,
www.pca-cpa.org, 58, para 187.

18

2 The Concept of Counterclaims in International Litigation

Trinidads claim as falling outside the tribunals jurisdiction. In its award of 11


April 2006, the tribunal upheld the claim of Trinidad and Tobago and ruled that
the subject-matter of the dispute included the continental shelf beyond the 200
mile limit because
(i) it either forms part of, or is sufficiently closely related to, the dispute submitted by
Barbados, (ii) the record of the negotiations shows that it was part of the subject-matter on
the table during those negotiations, and (iii) in any event there is in law only a single
continental shelf rather than an inner continental shelf and a separate extended or outer
continental shelf 56

This case illustrates the possibility to determine, or rather, clarify the subjectmatter jurisdiction of an arbitral tribunal by way of raising a counterclaim.
Although it appears that a counterclaim is not admissible unless as a matter of
principle it falls within the subject-matter jurisdiction of a tribunal, if the latter is
not clearly delineated or if it is defined in broad terms then a counterclaim may
serve to elucidate the issue.
A similar contingency appears to have occurred in the GuyanaSuriname
arbitration of 2007. The dispute concerned the delimitation of the maritime
boundary between the two States and was submitted to an arbitral tribunal constituted under Article 287 and in accordance with Annex VII of the UNCLOS with
the PCA acting as Registry. Article 9 of the Rules of Procedure of the tribunal was
silent on the right to raise counterclaims. Guyana raised the claim of State
responsibility against Suriname arising from the use and threat of force by the
latter against the territorial integrity of the former and against its nationals, agents
and licensees to conduct exploration of natural resources in the disputed maritime
area. Guyana alleged that Suriname had violated its obligations the UNCLOS, the
UN Charter and general international law. Suriname objected to Guyanas claim
asserting that it fell outside the jurisdiction of the tribunal. The tribunal ruled that it
had jurisdiction over the claim of Guyana and that it was admissible on the basis of
Article 293 (1) of the UNCLOS.57 Moreover, Suriname argued that Guyanas
claim concerning its responsibility could not be submitted to arbitration because
Guyana had failed to inform Suriname of the alleged violation of the UNCLOS in
accordance with Article 283 thereof and, further, that a claim of State responsibility arising from an incident in a disputed maritime area was inadmissible. The
tribunal rejected both objections by Suriname in these terms:
This dispute has as its principal concern the delimitation of the course of the maritime
boundary between the two PartiesGuyana and Suriname. The CGX incident of 3
June 2000, whether designated as a border incident or as law enforcement activity, may
be considered incidental to the real dispute between the Parties. The Tribunal, therefore,

56

Id., 6566, para 213.


Article 293 (1) of the UNCLOS reads: A court or tribunal having jurisdiction under this
section shall apply this Convention and other rules of international law not incompatible with the
Convention. See Guyana and Suriname, Award of 17 September 2007, 131132, paras
403406.

57

2.3 Counterclaims in International Arbitration

19

finds that in the particular circumstances, Guyana was not under any obligation to engage
in a separate set of exchange of views with Suriname on issues of threat of force. These
issues can be considered as being subsumed within the main dispute.58
The Tribunal does not accept Surinames argument that in a maritime delimitation
case, an incident engaging State responsibility in a disputed area renders a claim for
reparations for the violation of an obligation provided for by the Convention and international law inadmissible. A claim relating to the threat or use of force arising from a
dispute under the Convention does not, by virtue of Article 2 (4) of the UN Charter, have
to be against the territorial integrity or political independence of a State to constitute a
compensable violation. Moreover, the Convention makes no mention of the incompatibility of claims relating to the use of force in a disputed area and a claim for maritime
delimitation of that area.59

In this case, there was a claim that was raised outside the subject-matter
jurisdiction of the tribunal expressly stated in the agreement to submit the dispute
to arbitration, namely, the delimitation of the maritime boundary between the
parties to the dispute. Although the right to make counterclaims was not expressly
stipulated in the tribunals Rules of Procedure and Guyanas claim was in fact an
additional claim beyond maritime delimitation as the core subject-matter of the
dispute, it is submitted that its consideration by the tribunal provides a useful
insight with respect to the substance of the requirements for the admissibility of
counterclaims: their connection with the subject-matter of the dispute and their
falling with the jurisdiction of a tribunal.60

2.3.2 The UNCITRAL Arbitration Rules (1976)


Article 19 (3) of the UNCITRAL Rules provides that
In his statement of defence, or at a later stage in the arbitral proceedings if the arbitral
tribunal decides that the delay was justified under the circumstances, the respondent may
make a counter-claim arising out of the same contract or rely on a claim arising out of the
same contract for the purpose of a set-off

In the Saluka Investments B.V. v. The Czech Republic the arbitral tribunal dealt
with the admissibility of a counterclaim presented by the respondent, the Czech
Republic. By virtue of Article 8 (5) of the Agreement on Encouragement and
Reciprocal Protection of Investments between the Kingdom of the Netherlands and
the Czech and Slovak Federal Republic (1991),61 the Rules of Procedure of the
58

Id., 133, para 410.


Id., 139, para 423.
60
Cf. The position adopted by the ICJ in the Oil Platforms case and the views expressed by
Judge Higgins (sep. opinion), infra Chap. 4.
61
After the dissolution of the Czech and Slovak Federal Republic on 31 December 1992, the
Czech Republic notified the Netherlands that it remained bound by the 1991 Treaty. See Saluka
Investments B.V. v. The Czech Republic, Decision on Jurisdiction over the Czech Republics
Counterclaim, 7 May 2004, 1, para 2.
59

20

2 The Concept of Counterclaims in International Litigation

tribunal adopted by the parties were those of UNCITRAL.62 The dispute arose in the
context of the reorganization and privatisation of the former Czech and Slovak (after
1992 Czech) banking sector following the demise of the communist regime. The
applicant, Saluka Investments, was a subsidiary of the Nomura group of companies
and holder of part of the shares of IPB, a formerly State-owned commercial bank that
had had problems with bad debts. In 1998 Nomura acquired the IPB shares from the
Czech National Property Fund (NPF) by virtue of a Share Purchase Agreement and
then it created the Saluka as holder of these shares. Following the purchase, IPB was
placed under forced administration and its assets were sold to another Czech commercial bank (CSOB). Saluka Investments asserted that the Czech Republic incurred
responsibility because its conduct surrounding the IPB amounted to discriminatory
expropriation in violation of Articles 3 and 5 of the 1991 Treaty.63 The respondent,
the Czech Republic, raised a counterclaim in its counter-memorial to which the
applicant, Saluka Investments, objected on the basis of the tribunals lack of jurisdiction to consider it. The counterclaim was formulated under eleven different
headings64 and comprised claims by the Czech Republic against the Nomura rather
than Saluka, the applicant in the arbitral proceedings. The tribunal, first, ruled that it
had jurisdiction on the basis of Article 8 of the 1991 Treaty to consider counterclaims.
It recalled that Article 8 provided that (1) All disputes between one Contracting
party and an investor of the other Contracting Party concerning an investment of the
latter shall, if possible, be settled amicably. (2) Each Contracting party consents to
submit a dispute referred to in paragraph (1) of this Article, to an arbitral tribunal, if
the dispute has not been settled amicably within a [stated] period. The tribunal ruled
that as a matter of principle
the jurisdiction conferred upon it by Article 8, particularly when read with Article 19.3,
19.4 and 21.3 of the UNCITRAL Rules is wide enough to encompass counterclaims.
The language of Article 8, in referring to All disputes, is wide enough to include disputes
giving rise to counterclaims, so long, of course, as other relevant requirements are also met
65

The tribunal, then, assumed (but not ruled) that the relationship between
Nomura and Saluka was so close as to enable the Tribunals jurisdiction in
proceedings instituted by Saluka to extend to claims against Nomura ,66 but
even if this had been the case, the counterclaim raised by the Czech Republic
would be inadmissible. In the first three sections of counterclaim the Czech
Republic alleged breaches by Nomura of the Share Purchase Agreement of 1998,
between Nomura and the Czech National Property Fund (NFP).67 The tribunal
62

Saluka Investments B.V. v. The Czech Republic, Decision on Jurisdiction over the Czech
Republics Counterclaim, 7 May 2004, 1, para 3.
63
Id., 3, paras 910.
64
Id., 10, paras 48, 59.
65
Id., 9, para 39.
66
Id., 10, para 44.
67
Id.,1113, paras 4758.

2.3 Counterclaims in International Arbitration

21

pointed that Article 21of the 1998 Agreement contained a mandatory arbitration
clause which could not be disregarded by virtue of Article 8 (6) of the 1991
Treaty68:
The Tribunal thus cannot in this arbitration entertain a counterclaim based on a dispute
arising out of or in connection with, or the alleged breach of, an agreement which both
contains its own mandatory arbitration provision and is an agreement which the Tribunal
is expressly required to take into account69

The next eight sections of the Czech Republics counterclaim concerned


alleged breaches by Nomura of obligations incurred by an investor under Czech
municipal law.70 The tribunal also rejected all of them as inadmissible on the basis
of lack of connection between the principal claim and counterclaim. At the outset,
the tribunal outlined the position in law, as it perceived it, in these terms:
In relation specifically to counterclaims, it is necessary that they must also satisfy those
conditions which customarily govern the relationship between a counterclaim and the
primary claim to which it is a response. In particular, a legitimate counterclaim must have
a close connexion with the primary claim to which it is a response. In this arbitration the
primary claim involves Salukas investment in the Czech Republic through its shareholding since October 1998 in IPB, and its treatment by the Respondent in circumstances
which Saluka claims involve breaches of Articles 3 and 5 of the Treaty.
.
The nature and extent of the necessary close connection may be variously expressed. No
single attempt to define this requirement with universal effect is likely to be satisfactory,
since so much will always turn on the particular circumstances of individual cases,
including not only their facts but also the relevant treaty and other texts71

After reviewing the case-law of the Iran-US Claims Tribunal and the arbitral
tribunals constituted under the framework of the ICSID Convention the tribunal
found that the combined effect of Article 19 (3) of the UNCITRAL Rules, Articles
25 (1) and 46 of the ICSID Convention and Article II (1) of the Iran-US Settlement
Declaration reflected
a general legal principle as to the nature of the close connexion which a counterclaim
must have with the primary claim if a tribunal with jurisdiction over the primary claim is
to have jurisdiction also over the counterclaim.
The Tribunal considers that Article 8 of the [1991] Treaty has to be understood and
applied in the light of this general legal principle 72

This general legal principle with respect to the connexion between primary
claim and counterclaim is that the counterclaim must constitute an

68

Article 8 (6) of the 1991 Treaty required of the Tribunal to take into account, among others,
the provisions of special agreements relating to the investment. In the tribunals view the 1998
Agreement (including Article 21) constituted such a special agreement. Id., 12, para 56.
69
Id., 1213, para 57.
70
Id., 13, para 59.
71
Id., 1314, paras 61, 63.
72
Id., 17, paras 7677.

22

2 The Concept of Counterclaims in International Litigation


indivisible whole with the primary claim asserted by the Claimant, or as invoking
obligations which share with the primary claim a common origin, identical sources, and
an operational unity or which were assumed for the accomplishment of a single goal,
[so as to be] interdependent73

This was not the case in relation to sections four to eleven of the Czech
Republics counterclaim as they were premised on an alleged failure to abide by
obligations under municipal law which, are applicable, as a matter of the
general law of the Czech Republic, to persons subject to the Czech Republics
jurisdiction 74 By contrast, to be admissible under the requirement of connexion, the Czech Republics counterclaims should have been premised narrowly
on the legal relationship between itself and Saluka that was established by
the 1991 Treaty, namely, the investment that Saluka made in the Czech
banking sector.

2.3.3 The Iran-US Claims Tribunal


The Iran-US Claims Tribunal was established on 19 January 1981 by virtue of the
General Declaration75 and the Claims Settlement Declaration which was issued by
the government of Algeria and adhered to by Iran and the USA.76 Article II of the
Claims Settlement Declaration provides:
1. An International Arbitral Tribunal (the Iran-United States Claims Tribunal) is hereby
established for the purpose of deciding claims of nationals of the United States against
Iran and claims of nationals of Iran against the United States, and any counterclaim
which arises out of the same contract, transaction or occurrence that constitutes the
subject-matter of that nationals claim, if such claims and counterclaims outstanding on
the date of this agreement, whether or not filed with any court, and arise out of debts,
contracts (including transactions which are the subject of letters of credit or bank
guarantees), expropriations or other measures affecting property rights, excluding
claims described in Paragraph 11 of the Declaration of the Government of Algeria of 19
January 1981, and claims arising out of the actions of the United States in response to
the conduct described in such paragraph, and excluding claims arising under a binding

73

Id. para 79.


Ibid.
75
Declaration of the Government of the Democratic and Popular Republic of Algeria Relating to
the Commitments made by Iran and the United States of America, 19 January 1981, 20 ILM 224
(1981); see generally Aldrich 1996; Marossi 2006.
76
Declaration of the Government of the Democratic and Popular Republic of Algeria
Concerning the Settlement of Claims by the Government of the United States of America and the
Government of the Islamic Republic of Iran, 19 January 1981, text in 20 ILM 230 (1981).
74

2.3 Counterclaims in International Arbitration

23

contract between the parties specifically providing that any disputes there under shall be
within the sole jurisdiction of the competent Iranian courts in response to the Majlis
position. [emphasis added]
2. The Tribunal shall also have jurisdiction over official claims of the United States and Iran
against each other arising out of contractual arrangements between them for the purchase
and sale of goods and services.

Article III (2) of the Declaration provides that the Tribunal shall settle disputes
in accordance with the UNCITRAL rules except to the extent modified by the
parties or by the Tribunal to ensure that this agreement can be carried out
Article 19 (3) of the UNCITRAL Rules has been modified to read if such
counterclaim or set-off is allowed under the Claims Settlement Declaration 77
The latter does expand the basis of presenting counterclaims beyond the original
UNCITRAL provision (that a counterclaim must arise only out of the same contract) to include transaction or occurrence.
The presentation of counterclaims by Iran, the respondent in the overwhelming
majority of cases, has been a frequent occurrence in the jurisprudence of the
Tribunal. The reason lies in the fact that Article II (1) excludes from the jurisdiction of the Tribunal claims by either Iran or the USA against nationals of the
other State. Therefore, the making of counterclaims is the only route of raising
claims by either party to the Claims Settlement Declaration, especially Iran,
against nationals of the other party; the only alternative to this course of action
would be the bringing of claims before the domestic courts of either Iran or the
USA. In the A/2 case the Tribunal dealt with a request by Iran on whether the
General Declaration made by Algeria and the Claims Settlement Declaration had
established its jurisdiction over claims by Iran against nationals of the USA. The
Tribunal replied to the request in the negative and ruled that
It can easily be seen that the parties set up very carefully a list of the claims and
counterclaims which could be submitted to the arbitral tribunal
They mentioned only on that list claims which would be made by nationals of one of
the two States. Certainly, they admitted the counter claims submitted by Iran or the United
States against nationals of the other State, but under restrictive conditions which are
detailed in paragraph 1 of Article II of the Claims Settlement Declaration.
Such a right of counter claim is normal for a respondent, but it is admitted only in
response to a claim and it does not mean, by analogy, that each State is allowed to submit
claims against nationals of the other State. It means, a contrario, just the opposite. Certainly also, several specified sorts of claims are expressly excluded by the same paragraph,
but such exclusion is in the framework of this paragraph, i.e.: concerning claims made
by citizens against States. Such specific exclusions do not mean that, outside of that
framework, any claim which has not been excluded, should be admitted 78

77

Iran-US Claims Tribunal Rules of Procedure, 3 May 1983, text in www.iusct.org/


tribunal-rules.pdf.
78
Case A/2, Request for Interpretation: Jurisdiction of the Tribunal with respect to claims by the
Islamic Republic of Iran against nationals of the United States of America, Decision No DEC1A2-FT, 1 Iran-US CTR 101 (1982), 2.

24

2 The Concept of Counterclaims in International Litigation

The Tribunal has also had the opportunity to discuss the issue of counterclaims
in the context of inter-State claims between Iran and the USA which are regulated
by Article II (2) of the Claims Settlement Declaration. This provision makes no
express stipulation whether the respondent State may bring counterclaims (official counterclaims) against the applicant (State). The issue arose in the B/1 case79
where Iran raised several claims against the USA arising from transactions concerning the purchase of military equipment by the former from the latter. The USA
brought a counterclaim in which it alleged that Iran had violated its contractual
obligation concerning the security of classified information in relation to the
military equipment sold to it by the US. Iran raised four preliminary objections to
the counterclaim.80 In the first preliminary objection Iran contended that the Tribunal did not have jurisdiction to hear official counterclaims under the Claims
Settlement Declaration.81 The Tribunal interpreted this instrument by applying the
basic rule of treaty interpretation in Article 31 of the Vienna Convention on the
Law of Treaties (1969) and ruled on the basis of the practice of both States
subsequent to the Claims Settlement Declaration that official counterclaims
were admissible under Article II (2) of the Declaration.82 In the course of its
reasoning, the Tribunal has taken the opportunity to elaborate on the concept of
counterclaims. In fact, the Tribunal appears to consider the right of a respondent to
bring counterclaims as a general principle of law or an analogy of municipal
private law. In particular, the Tribunal has adopted the view that the silence of a
tribunals Statute with respect to the making of counterclaims does not imply an
exclusion of a respondents right to do so; by contrast, depriving a respondent
of his right to bring counterclaims requires express provision in a Statute. The
Tribunal ruled that
Accordingly, the fact that Article II, paragraph 2, of the Claims Settlement Declaration
does not refer to counterclaims is not the end of the matter, even if it could weigh in
favor of the view that official counterclaims are excluded. But even this is uncertain.
The Tribunal stated in Case No.A2 that a right of counter claim is normal for a
respondent. On that view, an explicit authorization of counterclaims would be unnecessary; on the contrary, express language would be necessary to exclude counterclaims. In
this connection, it is noteworthy that prominent international tribunals with jurisdictional
grants similar to Article II, paragraph 2, of the Claims Settlement Declaration (i.e.,
jurisdictional grants that permit parties to bring claims against one another on an equal
footing) have considered that they could entertain counterclaims, even if their constituent
instruments did not expressly refer to counterclaims. For instance, the respective Statutes
of the PCIJ, the ICJ and the International Tribunal for the Law of the Sea (ITLOS) do
not expressly refer to counterclaims. Yet, these institutions determined that they could
entertain counterclaims and adopted rules governing them. Similarly, the treaties

79

The Islamic Republic of Iran v. The United States of America, Case No. B 1(Counterclaim),
Interlocutory Award, 9 September 2004, Award No. ITL 83-B1-FT, 2004 WL 2210709.
80
Id., 2, para 2.
81
Id., 5, para 15.
82
Id., 2025, paras 106135. See Article 31 (3) (b) Vienna Convention on the Law of Treaties
(1969).

2.3 Counterclaims in International Arbitration

25

establishing the mixed arbitral tribunals after the First World War did not refer to
counterclaims, but the majority of these tribunals considered that they could entertain
counterclaims; the few arbitral tribunals that prohibited counterclaims adopted express
rules to that effect.
The fact that Article II, paragraph 1, of the Claims Settlement Declaration refers to
claims and counterclaims, whereas paragraph 2 of the same Article refers only to
claims, does not necessarily imply that the Parties sought to exclude counterclaims in
official cases, because there are particular reasons why express mention of counterclaims
was required in paragraph 1 but not in paragraph 2 of Article II of the Claims Settlement
Declaration. Article II, paragraph 1, of the Claims Settlement Declaration confers on the
Tribunal jurisdiction over claims of nationals of the United States against Iran and claims
of nationals of Iran against the United States but the Tribunal has no jurisdiction over
claims of one government against the nationals of the other State. Without express
mention of counterclaims in Article II, paragraph 1, of the Claims Settlement Declaration
the Tribunal would have been prevented from hearing any type of claims by a State party
against nationals of the other State. By contrast, since each Party could file claims against
the other under Article II, paragraph 2, of the Claims Settlement Declaration, the same
rationale does not apply to that provision. Based on the foregoing the Tribunal determines
that the absence of any reference to counterclaims in Article II, paragraph 2, of the Claims
Settlement Declaration, without more, does not warrant the conclusion that official claims
are not permitted under that provision 83

It may be inferred from the above rulings that at first sight the raison d tre of
counterclaims as a concept of municipal private law is somewhat curtailed in the
context of the Iran-US claims Tribunal. Under this concept the subject of counterclaims may constitute the subject of separate claims. They are admissible as
counterclaims for reasons of fairness and procedural economy. The right to present
counterclaims before the specific arbitral tribunal does not have, by virtue of
express provision of its statutory instrument, a counter-part in the right to present
separate claims by Iran or the USA against nationals of the other State. Therefore,
the admission of the right of a respondent State to make counterclaims goes
beyond procedural economy, in fact it seems unrelated to it altogether, and is
restricted only to fairness. Indeed, it appears that a respondent State in litigation
before the Tribunal, in practice Iran, would be disproportionately placed in a
position of disadvantage if its lack of right to bring claims against US nationals
would be accompanied by its logical conclusion: a lack of a right to bring
counterclaims. In a framework of settlement of disputes arising from economic
transactions and investment, the respondent State facing claims based on State
responsibility by private parties but being unable to assert its own claims that
unavoidably may arise in the context of this type of relations would be excessively
one-sided in favor of investors. On the other hand, the Tribunals position that the
right of a respondent to make a counter-claim is normal but must not be seen as
allowing the bringing of claims by a State against the nationals of the other State is
not to be taken to represent a statement of principle. It is rather to be seen strictly
within the settlement framework of the Tribunal, as agreed by the interested States,
in relation to claims of private parties (namely, citizens of Iran or the USA) against

83

Id., 1718, paras 8687, 89.

26

2 The Concept of Counterclaims in International Litigation

either Iran or the USA. Indeed, the general historic and political context surrounding
the establishment of the Iran-US Claims Tribunal consists of the consequences of the
Islamic Revolution in Iran upon the property rights of and large-scale private
investment by US nationals. The redress of claims (principally against Iran) that were
generated clearly occupies a position of priority in the framework of settlement
agreed by the USA and Iran. At the same time, this priority is maintained, though
counterbalanced, by the expressly conferred right to the respondent (again, principally Iran) to make counter-claims because the latter to a large extent depends on the
original claim in relation to its admissibility and substantive content. By contrast, in
the context of official inter-State claims the situation is more straightforward: a right
to bring counter-claims need not be expressly conferred for it is premised on a general
principle of law. In fact, as long as either Iran or the USA may raise claims against
each other, the State that in a particular dispute finds itself in the position of
respondent may bring counter-claims the admissibility of which is regulated by the
Tribunals Rules of Procedure only (Article 19 (3)).84
The Tribunal has dealt with counter-claims in its voluminous jurisprudence
concerning claims by private parties against, principally, Iran. George Aldrich,
former Judge and President of the Tribunal, has formulated a number of principles
that have crystallized as a result of this jurisprudence85:
(a) Jurisdiction over counter-claims depends on jurisdiction over the original
claims. In Reliance Group Inc. v. National Iranian Oil Company et al. the
Tribunal dismissed the Applicants claim for lack of jurisdiction because it
was not satisfied that it constituted a claim by a US national. On the
respondents counter-claim it ruled that [T]he Counter-claim is similarly
dismissed since it arises out of the same contract as the Claim and is
dependent on the Jurisdiction of the Tribunal over the Claim86
(b) Withdrawal of a claim does not affect jurisdiction over a counter-claim87
(c) The jurisdiction of the Tribunal over counter-claims is not exclusive. This
implies that a respondent is not compelled to bring a counter-claim to the
Tribunal and that he has the right to pursue it in other forums.88
(d) The amount of a counter-claim may exceed that of a claim.89
(e) The Tribunal has jurisdiction over set-offs if they meet the requirements for
counter-claims.90

84

Id., 12, 19, 25, paras 52, 98, 139.


Aldrich 1996, 110 et seq.
86
Reliance Group Inc. v. National Iranian Oil Company et al., Award No. 15-90-2, 8 December
1982, 1 Iran-US CTR 384; Aldrich 1996 111(n. 225). Also see Thomas K. Khoshravi v. The
Government of the Islamic Republic of Iran, Award No. 571-146-3, 20 June 1996, 1996 WL
1171806, para 75.
87
Aldrich 1996, 111 (n. 226).
88
Id. (n. 228).
89
Id.,112 (notes 230, 231).
90
Id., 112 (n. 232).
85

2.3 Counterclaims in International Arbitration

27

(f) The Tribunal does not have jurisdiction over counter-claims that do not arise
from the same contract, transaction or occurrence as a claim. In the OwensCorning Fiberglass Corp. case the Tribunal ruled that if a claim is based
exclusively on a contract or arises from an occurrence (such as an act of
expropriation) the counter-claim must arise out of the same contract or the
same occurrence. As for transaction the Tribunal took the view that if a
business transaction results in a number of contracts, a counter-claim would
be within the jurisdiction of the Tribunal even if it arose from a contract of the
same transaction other than the contract on which the claim was based.91
However, the jurisprudence of the Tribunal has not been consistent with
respect to counter-claims based on contracts different from the contracts
under which the principal claims were brought. In the Pomeroy92 and
Morrison-Knudsen93 cases the Tribunal rejected for lack of jurisdiction
counter-claims because they did not arise from the same contracts as the
claims but were presented under contracts preceding those that formed
the basis of the principal claim. In these cases the Tribunal declined to accept
the argument that all contracts formed part of the same transaction and,
hence, counter-claims based on earlier contracts were admissible as arising
from the same transaction. By contrast, in the American Bell94 and
Westinghouse95 cases the Tribunal reached the opposite conclusion by ruling
that counter-claims arising from contracts other than those on which the
principal claims were based were admissible as arising from the same
transaction because as a practical matter, both Parties were committed to the
transaction in its entirety.96
(g) The Tribunal does not have jurisdiction over counter-claims for taxes or
social security contributions. The Tribunal has consistently rejected for lack
of jurisdiction this type of counter-claims by ruling that they arise under
Iranian law and not contracts.97

91

Owens-Corning Fiberglass Corp. v. The Government of Iran et al., Interlocutory Award No.
ITL 18-113-2, 13 May 1983, 2 Iran-US CTR 322, 324 cited in Aldrich 1996, 113 (n. 234).
92
R. N. Pomeroy et al. v. The Government of the Islamic Republic of Iran, Award No. 50-40-3, 8
June 1983, 2 Iran-US CTR 372, at 379 cited in Aldrich 1996, 113 (n. 235).
93
Morrison-Knudsen Pacific Ltd. v. The Ministry of Roads and Transportation et al., Award No.
143-127-3, 13 July 1984, 7 Iran-US CTR 54, at 8284 cited in Aldrich 1996, 114 (n. 237).
94
American Bell International, Inc. v. The Government of the Islamic Republic of Iran,
Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR 74, at 8384 cited in
Aldrich 1996, 114 (n. 236).
95
Westinghouse Electric Corp. v. The Islamic Republic of Iran et al., Interlocutory Award No.
ITL 67-389-2, 12 February 1987, 14 Iran-US CTR 104 cited in Aldrich 1996, 115 (n. 239). But
the opposite conclusion was reached in Westinghouse Electric Corp. v. Islamic Republic of Iran
Air Force, Award No. 579-389-2, 26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.), paras
423432.
96
Aldrich 1996, 116.
97
Aldrich 1996, 116118.

28

2 The Concept of Counterclaims in International Litigation

(h) The Tribunal does not have jurisdiction over counter-claims by or against
non-Parties. In this respect the Tribunal rejected counter-claims against the
parent-company in cases between a subsidiary and Iran.98
(i) A contractual prohibition of counter-claims does not affect the jurisdiction of
the Tribunal. In the Anaconda-Iran case the Tribunal held that a contractual
obligation between claimant and respondent to submit disputes to the
International Chamber of Commerce coupled with an express prohibition of
counter-claims, did not affect its jurisdiction over counter-claims because it
was stipulated in the international agreement between Iran and the USA and
not in the agreement of the parties to the arbitration.99
(j) The jurisdiction of the Tribunal is not affected by the fact that claims are
indirect100
A further aspect of the Tribunals contribution to the jurisprudence on counterclaims concerns the consideration of the issue of bringing counter-claims against
counter-claims, in other words of a principal claimants counter-counterclaims
against a respondents counter-claims. In the Westinghouse Electric Corp. v.
Islamic Republic of Iran Air Force case the Tribunal faced Westinghouses
counter-counterclaims against the Iranian Air Forces counter-claims. Westinghouses counter-counterclaims were based on a contract other than the four contracts constituting the basis of the principal claim and to which the respondent
raised counter-claims.101 At the outset, the Tribunal declined to treat the countercounterclaims of the original applicant as amendments to its initial statement of
claim because this would be contrary to the deadline for filing claims provided in
Article III (4) of the Claims Settlement Declaration.102 Moreover, the Tribunal
took note of its Interlocutory Award of 12 February 1987 where it ruled that the
Iranian Air Forces counter-claims under contracts other than the claims contracts
were within its jurisdiction as arising from the same transaction and ruled that it
would evaluate the performance of Westinghouse under the counter-claims contracts. It then ruled that it would consider the counter-counterclaims of Westinghouse but it would limit Westinghouses potential recovery thereon. Thus,
in allocating the parties losses, the Tribunal will consider the extent of
98

See, for instance, American Bell International, Inc. v. The Government of the Islamic Republic
of Iran, Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR 74, at 82 cited in
Aldrich 1996, 118 (n. 247). Cf. Kimberley-Clark Corp. v. Bank Markazi et al. Award No. 46-57-2,
25 May 1983, 2 Iran-US CTR 334, where a non-respondent made a counter-claim and the Tribunal
allowed the applicant to amend its statement of claim so as to include the counter-claimant as a
respondent, cited in Aldrich 1996, 118 (n. 248).
99
Anaconda-Iran, Inc. v. The Government of the Islamic Republic of Iran et al., Interlocutory
Award No. ITL 65-167-3, 10 December 1986, 15 Iran-US CTR 199, at 221226, cited in Aldrich
1996, 119 (n. 250).
100
Aldrich 1996, 119 (notes 252, 253).
101
Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force, Award No. 579-389-2,
26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.), para 16.
102
Id. para 320.

2.3 Counterclaims in International Arbitration

29

Westinghouses performance under the counter-claims contracts, but only to a


limited degreethat is, only to reduce or satisfy the Air Forces counter-claims on
those contracts, without allowing Westinghouse to recover any amounts in excess
of the Air Forces recovery of its counter-claims.103 Thus, it appears that a
counter-counterclaim would be considered as having the function of a set-off; in its
conclusion the Tribunal stated that Westinghouses counter-counterclaims would
be considered as part of the Tribunals determination of the financial consequences of the frustration of the contract.104

2.3.4 The World Trade Organization Understanding on Rules


and Procedures Governing the Settlement of Disputes
Article 3 (10) of the WTO Dispute Settlement Rules does not admit the right to
make counter-claims because the dispute settlement procedure is premised on
conciliation and is not considered as a form of contentious process. The relevant
passage of this provision reads: It is also understood that complaints and countercomplaints in regard to distinct matters should not be linked.105

2.3.5 The International Centre for Settlement


of Investment Disputes (ICSID)
Article 46 of the ICSID Convention (2003) provides:
Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine
any incidental or additional claims or counter-claims arising directly out of the subjectmatter of the dispute provided that they are within the scope of the consent of the parties
and are otherwise within the jurisdiction of the centre.

Moreover, Article 40 of the ICSID Arbitration Rules provides:


(1) Except as the parties otherwise agree, a party may present an incidental or additional
claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is
otherwise within the jurisdiction of the Centre.
(2) An incidental or additional claim shall be presented not later than in the reply and a
counter-claim no later than in the counter-memorial, unless the Tribunal, upon justification by the party presenting the ancillary claim and upon considering any objection

103
104
105

Id. paras 321322.


Id. para 326.
Text in http://www.wto.org/english/docs_e/legal_e/28-dsu_e.htm.

30

2 The Concept of Counterclaims in International Litigation


by the other party, authorizes the presentation of the claim by a later stage in the
proceeding.
(3)

The jurisprudence of ICSID tribunals reveals that the making of counterclaims by respondent States is not a frequent occurrence. As an ICSID tribunal
found, in the Sempra Energy International v. Argentina case, the respondent
stressed its expectations with respect to the investment that were not met or were
otherwise frustrated and noted that:
to the extent that any such issues would be within the Tribunals jurisdiction to decide,
and could have resulted in breaches of the Treaty, the Respondent would be entitled to
raise a counter-claim. While this right has been resorted to by respondent States only to a
limited extent in cases submitted to ICSID tribunals, nothing prevents its exercise in the
light of Article 46 of the Convention and Rule 40 of the Arbitration Rules. This right was
not exercised in the present case. 106

Be it as it may, the ICSID tribunals case-law on counter-claims reveals that


counter-claims are ruled to be admissible if they fall within the Centres jurisdiction, namely, if they arise under an investment agreement (Article 25 ICSID
Convention) and are directly related to the subject-matter of the particular dispute
under litigation concerning a specific investment. In Bevenutti and Bonfant SRL v.
Peoples Republic of Congo case the respondent raised a counter-claim that
covered a number of headings: (a) compensation for non-payment of duties and
taxes for imports under cover of the investment holder of goods destined for third
parties; (b) overpricing of raw materials; (c) compensation for defaults in the
execution of the supply agreement; (d) defects concerning the construction of the
fertilisers plant and (e) compensation for moral damage.107 The tribunal ruled that
under Article 40 (1) of the ICSID Arbitration Rules the counter-claim was
admissible because it related directly to the object of the dispute and the tribunals
competence had not been disputed.108
At the same time, the validity of a settlement-of-disputes agreement is a crucial
factor in relation to the admissibility of counter-claims raised by a respondent
State. In Desert Line Projects LLC v. Yemen an ICSID tribunal applied the concept
of estoppel and rejected the respondents counter-claims relative to unperformed
remedial and other works as well as to the compensation related to the failure of

106

Sempra Energy International v. The Argentine Republic ICSID Case No. ARB/02/16
(Award), 2007 WL 5540331 (APPAWD), para 289. The issues that could form the bases of
counter-claims by the respondent were the expectation that the investor would bear any losses
resulting from its activity, work diligently and in good faith, not claim extraordinary earnings
exceeding by far fair and reasonable tariffs, resort to local courts for dispute settlement, dutifully
observe contract commitments, and respect the regulatory framework.
107
Bevenutti and Bonfant SRL v. Peoples Republic of Congo, ICSID Case No. ARB/77/2
(Award), 1980 WL 371579 (APPAWD), para 101.
108
Id. para 104.

2.3 Counterclaims in International Arbitration

31

the Claimant to maintain the bank guarantees after 31 December 2004 The
tribunal reasoned that
the Respondent cannot claim benefit from the nullity of a documenti.e., the Settlement Agreementthat it imposed on the Claimant. In the present case, the doctrine of
estoppel (venire contra factum proprium) serves as a shield to prevent the Respondent
from obtaining compensation for the failure of the Claimant to execute its maintenance
and repair obligations as well as for its failure to maintain the two bank guarantees. The
Respondentwhile imposing the Settlement Agreement that provided for the release of
all these obligationshad clearly and unmistakably represented that it no longer treated
the Claimants aforementioned obligations as extant 109

In other words, the fact that a settlement agreement was forced upon an investor
by a respondent State under duress precludes the latter from the right to raise
counter-claims asserting the performance by the former of obligations arising from
an investment agreement.
Furthermore, in Klckner v. Cameroon an ICSID tribunal ruled that an
investment agreement between the host State and a company incorporated under
this States law falls under the jurisdiction of the Centre and the respondents
counter-claims are admissible if at the time consent to the ICSID dispute settlement procedure was expressed; the applicant foreign investor had a majority
interest in it. The subsequent loss of majority control does not affect the tribunals
jurisdiction once consent to the ISCID process has been conferred. In this case the
tribunal found that although the investment agreement had been concluded
between Cameroon and SOCAME, a Cameroonian company, it had been negotiated between Cameroon and Klckner and concluded in the interest of
Klckner, at a time when Klckner was SOCAMEs majority shareholder.110 In
the same case, the tribunal ruled that if ICSID is validly seized, namely, on the
basis of the parties consent, the subject-matter of the dispute may be extended at
any time, even in written submissions to the Tribunal (forum prorogatum) provided that this is met by the consent of the parties.111
In MINE v. Guinea an ICSID tribunal upheld in principle the right of a
respondent to make counter-claims for legal costs incurred in litigation improperly
pursued by an applicant outside the ICSID framework, provided that the respondent timely objects to the applicants improper course of action.112

109

Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17 (Award), 2008
WL 2912764 (APPAWD), para 224.
110
Klckner Industrie-Anlagen GmbH v. United Republic of Cameroon and Socit Camerounaise des Engrais (SOCAME), ICSID Case No. ARB/81/2 (Award), 1983 WL 510000
(APPAWD), p 6. See also, Rumeli Telekom A.S. and Telsim Mobil Telekomikasyon Hizmetleri
A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, 2008 WL 4819868 (APPAWD),
para 284.
111
Id., 4.
112
Maritime International Nominees Establishment (MINE) v. Republic of Guinea, ICSID
Case No. ARB/84/4 (Award), 1988 WL 1103627.

32

2 The Concept of Counterclaims in International Litigation

Counter-claims concerning tax and duties obligations of an investor toward a


host State may be admissible in litigation under the ICSID framework of settlement of disputes if it is proved that they arise directly out of an investment, in the
sense of being expressly contracted, in accordance to Article 25 (1) of the ICSID
Convention. Otherwise, they are dismissed for lack of jurisdiction. In Amco v.
Indonesia (Resubmitted case) an ICSID tribunal considered a counter-claim by
Indonesia concerning an allegation of tax fraud by the applicant and found that
In fact, both parties agree, as does the Tribunal, that tax claims may be within the
ICSIDs jurisdiction and that claims in relation thereto would be available to both parties
to an investment dispute. The issue is, therefore, whether this particular claim falls within
Article 25 (1) of the ICSID Convention. In answering this question the Tribunal believes
that it is correct to distinguish between rights and obligations that are applicable to legal or
natural persons who are within the reach of a host States jurisdiction, as a matter of
general law; and rights and obligations that are applicable to an investor as a consequence
of an investment agreement entered into with that host State. Legal disputes relating to the
latter will fall under Article 25 (1) of the Convention. Legal disputes concerning the
former in principle fall to be decided by the appropriate procedures in the relevant
jurisdiction unless the general law generates an investment dispute under the Convention.
The obligation not to engage in tax fraud is clearly a general obligation of law in Indonesia. It was not specially contracted for in the investment agreement and does not arise
directly out of the investment. For these reasons the Tribunal finds the claim of tax fraud
beyond its competence ratione materiae 113

In the same case the tribunal drew upon the distinction between a defence and a
counter-claim with respect to Indonesias claim of tax fraud against Amco. This
argument was raised during the first proceedings of 1984, and the issue before the
second proceedings of 1988 was whether Indonesias claim had already been
decided by the fist tribunal or was a new claim. The second tribunal relied on
Article 40 of the ICSID Arbitration Rules and found that before the first tribunal,
The fact that argument was exchanged on the question of tax fraud, in the context of
justifying the revocation of the licence and in support of an unclean hands argument,
does not mean that tax fraud was a claim in existence before the first tribunal. For that to
have been so, it would have been necessary for it to have been advanced as a counterclaim or as an additional claim under Rule 40 114

The tribunal did not explain the substantive content of the distinction between a
defence and a counter-claim, and indeed, this does not appear to have been
the issue. What is implicit, however, in the particular section of the award, is that
an argument of unclean hands aimed at exculpating Indonesia, the respondent,
from State responsibility for breach of the investment agreement did not have the
character of a claim or counter-claim for the latter is, at least, subject to
certain formal procedure.

113

Amco v. Republic of Indonesia, ICSID Case No. ARB/81/1 (Resubmitted Case: Decision on
Jurisdiction), 27 ILM 1281 (1988), 13091310, paras 124127.
114
Id., para 120.

2.3 Counterclaims in International Arbitration

33

2.3.6 The International Chamber of Commerce (ICC) Rules


of Arbitration (1998)
Article 5 (5) of the ICC Arbitration Rules states that
Any counter-claim(s) made by the Respondent shall be filed with its answer and shall
provide: (a) a description of the nature and circumstances of the dispute giving rise to the
counter-claim(s); and (b) a statement of the relief sought, including, to the extent possible,
an indication of any amounts(s) counterclaimed.

This provision is remarkable for its generality of formulation and allinclusiveness. There seem to be no specifically circumscribed requirements for the
admissibility of counter-claims: there is no condition concerning the tribunals
subject-matter jurisdiction, neither is there any provision with respect to connection with particular contract, transaction or occurrence. It appears from the few
ICC cases in which counter-claims were raised that tribunals evaluate them
exclusively on the merits and that no issue of admissibility had arisen because the
counter-claims were directly connected with the original claims. In Case No.
3779115 a Swiss seller (applicant) concluded three contracts with a Dutch buyer
(respondent) for the supply of whey powder. The product met the requirements
agreed upon according to the method of analysis prevalent in North America but
failed to meet these requirements under the European method. As a result, the
respondent canceled the third contract which had not been executed and, when
the claimant instituted the ICC arbitration proceedings (for damages arising from
the cancelation of the third contract), he counterclaimed for loss arising from the
first two contracts that had been executed. The tribunal applied Swiss law and
ruled that all three contracts, from an economic point of view constituted one
group. It, however, rejected the respondents counter-claim on the merits because
the first two contracts had been confirmed by him and payment had been made
after the discovery of the error. Moreover, in Case No. 8486116 the tribunal
rejected a counter-claim by the respondent for restitution of advance payment,
again on the merits, namely, that the respondent was not released from his contractual obligations by reason of unforeseen and fundamental change of circumstances. Finally, in Case No. 4567117 the tribunal considered various counterclaims by a US supplier (respondent) against a West-African applicant (buyer) in
the dispute concerning a claim of recovery of payment made for the purchase of a
defective High Power Microwave Amplifier, as well as incidental and consequential damages. The counter-claims were rejected because the tribunal ruled that
the applicant had the right to recover incidental damages to which no limitations
applied and that these damages were assessed by it acting as amiable compositeur.

115
116
117

Award in Case No. 3779 of 13 August 1981, ICCA Ybk, Vol. IX (1984), 124130.
Award in Case No. 8486 (1996), ICCA Ybk, Vol. XXIVa (1999), 162173.
Award in Case No. 4567 (1985), ICCA Ybk, Vol. XI (1986), 143147.

34

2 The Concept of Counterclaims in International Litigation

2.3.7 The International Law Commissions Model Rules


on Arbitral Procedure (1958)
Article 19 of the ILC Model Rules provides that
In the absence of any agreement to the contrary implied by the undertaking to arbitrate or
contained in the compromis, the tribunal shall decide on any ancillary claims which it
considers to be inseparable from the subject-matter of the dispute and necessary for its
final settlement.

The use of the generic term ancillary matters in the text includes the right to
make counter-claims if a special agreement to arbitrate is silent on the issue.118 As
the general commentary of the Commission119 indicates, the use of the term has a
dual purpose. First, it aims at overcoming definitional problems and, secondly, it
introduces the rationale of disposing of the grounds of dispute between the parties
arising out of the same subject-matter. It, thus, appears to support, if not
encourage, the final settlement of all aspects of a dispute. In this respect, the
presentation of counter-claims, being a means to bring additional matters of the
same dispute to the attention of an arbitral tribunal, is as a matter of principle
allowed. The only requirement introduced for the admissibility of counter-claims
is their inseparability from the subject-matter of the dispute, an issue to be decided
by an arbitral tribunal in every specific case.

2.4 The International Tribunal for the Law


of the Sea (ITLOS)
Article 98 of the ITLOS Rules of Procedure provide for the right to make counterclaims in terms similar to the Rules of procedure of the ICJ:
1. A party may present a counter-claim provided that it is directly connected with the
subject-matter of the claim of the other party and that it comes within the jurisdiction of
the Tribunal.
2. 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.
3. In the event of doubt as to the connection between the question presented by way of
counter-claim and the subject-matter of the claim of the other party the Tribunal shall,
after hearing the parties, decide whether or not the question thus presented shall be
joined to the original proceedings.
To this date there has not been a case where counter-claims were presented.

118
119

Larschan and Mirfendereski 19861987, 28.


Yearbook of the International Law Commission 1958, Vol. II, 87, para 34.

References

35

References
Aldrich GH (1996) The Jurisprudence of the Iran-United States Claims Tribunal. Oxford
Anzilotti D (1930) La Demande Reconventionelle en Procdure Internationale. 57 J du Droit
International 857
Beys K, Calavros C, Stamatopoulos S (2001) Civil ProcedureGeneral Part, Procedure before the
Courts of First Instance (C. Calavros). Ant N Sakkoulas, Greek
Cappelletti M (ed) (1973) International Encyclopedia of Comparative Law, vol XVI. Civil
Procedure
Larchan B, Mirfendereski G (19861987) The status of counter-claims in international law, with
particular reference to international arbitration involving a private party and a foreign state. 15
Denver J. Intl L. and Poly 11
Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London.
Reprinted in 2002 by The Law Book Exchange Union, New Jersey
Lauterpacht Sir H (1975) International Law, Collected Papers, Lauterpacht E (ed), vol 2.
Cambridge
Marossi AZ (2006) Iran-United States Claims Tribunal. Claims, Counterclaims, Dual Nationality
and Enforcement. 23 J Int Arbitr 493
Renteln AD (19861987) Encountering Counter-claims. 15 Denver J. Intl L. and Poly 379
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 Jos Maria Ruda. Kluwer, p 476
Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff

Chapter 3

Counterclaims before the ICJ:


Evolution and Definition

3.1 The Evolution of the Rule on Counterclaims1


3.1.1 The Permanent Court of International Justice
The Statute of the Permanent Court made no provision with respect to the right of
a respondent to present counterclaims against the claim of an applicant in the same
set of proceedings. However, in a pioneering development, given the paucity of
relevant provisions in documents relevant to international arbitration at the time,
Article 40 of the Rules of Procedure of the Permanent Court adopted in 1922
stipulated the right of a respondent State to present counterclaims:

Counter-cases shall contain:


1. the affirmation or contestation of the facts stated in the case;
2. a statement of additional facts, if any;
3. a statement of law;
4. conclusions based on the facts stated; these conclusions may include counterclaims,
in so far as the latter come within the jurisdiction of the Court; [emphasis added]
5. a list of the documents in support; these documents shall be attached to the countercase.2

Initially, the Draft Rules prepared by the Secretariat of the League of Nations
provided in draft Article 33 that counter-cases (i.e., Counter-Memorials) shall
include: 4) conclusions [i.e., submissions], which may contain counter-claims,

See generally, Whiteman 1968 (vol. 12), 13511355; Guyomar 1983, 518525; Rosenne 2000,
459467; Rosenne 2007, 269279; 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 Canado Trindade (diss. op.), paras 59.
2
Permanent Court of International Justice, Rules of the Court, Adopted by the Court March
24th 1922, Van Langenhuysen Brothers, The Hague, 1922, 2122.
C. Antonopoulos, Counterclaims before the International Court of Justice,
DOI: 10.1007/978-90-6704-790-6_3,
 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

37

38

3 Counterclaims before the ICJ: Evolution and Definition

based on the facts quoted, and which shall be numbered consecutively; 3 The
Drafting Committee of the Court proposed, by changing the order of words, that
counter-cases shall contain 4) conclusions based on the facts stated, and
numbered consecutively; these conclusions may include counterclaims 4 Thus,
while the Secretariat Draft implies that counterclaims must be based on the facts of
the dispute the Drafting Committee Draft has left the matter undetermined.
The full Court that discussed the Drafting Committee text and gave the relevant
Rule its final formulation did not discuss counterclaims at length. As the record
reveals, Judge Anzilotti took the view that counterclaims could not be presented in
the case of disputes submitted to the Court by way of special agreement; he
suggested that in the case of unilateral application counterclaims could be
admissible only if they were within the jurisdiction of the Court.5 His suggestion
was formulated into concrete proposal by Judge Beichmann and was adopted
giving its final form to what became Article 40 of the PCIJ Rules of Procedure.6
The Permanent Court dealt with counterclaims presented under Article 40 (2)
(4) of the Rules only on one occasion, in the Chorzw Factory Case (Merits).7 At
this stage of the case Germany requested the Court to adjudge reparation which
was due by Poland for the injury suffered by two German Companiesthe
Oberschlesische Stickstoffwerke and the Bayerische Stickstoffwerkebecause of
the taking-over of a nitrate factory at Chorzw in Upper Silesia by the Polish
government.8 The nitrate factory was constructed by the Bayerische for the
German Reich in execution of a contract between the Company and the German
government concluded in March 1915.9 On 24 December 1919 the Oberschlesische was established to whom the German Government sold the factory at
Chorzw. On the same day another Company was formed, the Treuhand Ltd,
which undertook as independent debtor all of the Oberschlesisches obligations
toward the German Government; the latter kept possession of the Companys
shares as guarantee for the payment of the purchase price concerning the sale of
the Chorzw factory.10 On 15 May 1922 Germany and Poland concluded a
bilateral treaty in Geneva concerning Upper Silesia that was ceded to newly
independent Poland by virtue of the Peace Treaty of Versailles, following the First
World War. The jurisdiction of the Court was based on Article 23 of this bilateral
3

Annex Ic, Rules of the Court, Draft Prepared by the Secretariat (Distr. II), PCIJ Ser. D No. 2
(1922), 261262.
4
Annex 61a, Draft for the Rules of the Permanent Court of International Justice, prepared by
the Drafting Committee (Distr. 71), PCIJ Ser. D No. 2 (1922), 433.
5
Preliminary Session, 25th Meeting, March 9, 1922, PCIJ Ser. D No 2 (1922), 139140.
6
Annex 72a, Draft Rules of the Court, March 23rd, 1922, Third Reading (Distr. 109), PCIJ Ser.
D No 2 (1922), 570.
7
Case Concerning the Factory at Chorzw (Claim for Indemnity) (Merits), PCIJ Ser. A No 17
(1928).
8
Id., 5.
9
Id., 1819.
10
Id., 1921.

3.1 The Evolution of the Rule on Counterclaims

39

treaty. Moreover, Article 256 of the Treaty of Versailles provided that all property
and possessions of Imperial Germany and the German States situated on Polish
territory should be transferred to Poland.11 On 1 July 1922 a Polish Court cancelled the registration of the Oberschlesische as the owner of the Chorzw factory,
restored the previous situation (i.e. the ownership of the factory by the German
Reich) and registered the property in the name of the Polish Treasury in application of Article 256 of the Treaty of Versailles. On 3 July 1922 Poland took
possession of the Chorzw factory and included it in the list of property transferred
to it under Article 256 of the Versailles Treaty.
In its Counter-Memorial, Poland presented a counterclaim requesting the Court to
adjudge that Germany had to hand over to the Polish government all the shares of the
Oberschlesische of the nominal value of 110 million marks which had been in its
possession by virtue of the contract of 24 December 1919.12 According to the government of Poland, since these shares were in the possession of the German government as guarantee for the purchase price of the Chorzw factory by the
Oberschlesische, they constituted property of the German Reich in the sense of
Article 256 of the Versailles Treaty which had to be transferred to Poland. As a result
the indemnity that was due to the Oberschlesische had to be assessed after eliminating
the rights of the German Reich.13 Germany pointed to the fact that Poland based its
counterclaim on Article 256 of the Treaty of Versaillesnot on the bilateral GermanPolish Geneva treaty of 1922 on the basis of which Germany instituted proceedings
and had not identified a basis of the Courts jurisdiction to deal with it. In its reply
Germany made it clear that it would not contest the Courts jurisdiction to deal with
the Polish counterclaim, because it wished to give effect to the Locarno Arbitration
Treaty (1925) to which both States were parties and to have the Chorzw dispute
settled once and for all.14 Moreover, Germany referred to the requirement of Article
40 (2) (4) of the Rules of the Court that counterclaims may be adjudged upon if they
come within the jurisdiction of the Court, and concluded: As between Germany
and Poland this applies in respect of any question of law in dispute between them.
The only point which might be disputed is the question whether, for the application of
this article of the Rules, the conditions respecting forms and times must also be
fulfilled, or whether it is enough that the material conditions should be fulfilled. This
point, however, may be left open, since the German Government accepts the jurisdiction of the Court in regard to the question raised in the Counter-Case 15
11

Article 256 (1) of the Treaty of Versailles (1919) provided that Powers to which German
territory is ceded shall acquire all property and possessions situated therein belonging to the
German Empire or to the German States, and the value of such acquisitions shall be fixed by the
Reparation Commission, and paid by the State acquiring the territory to the Reparation
Commission for the credit of the German Government on account of the sums due for reparation.
12
PCIJ Ser. A No 17 (1928), 36.
13
Id., 3536.
14
Id., 36.
15
Id., 37. According to Rosenne the attitude of Germany on the matter of jurisdiction amounted
to an instance of forum prorogatum. See Rosenne 2000, 460461; Rosenne 2007, 271.

40

3 Counterclaims before the ICJ: Evolution and Definition

The Court pointed at the lack of a clear position on the issue of its jurisdiction
by Poland, the reliance of Germany on the Treaty of Locarno and the wish of both
parties to the dispute that the Court should rule on the Polish counterclaim in the
course of the same proceedings.16 The Court went on to affirm that once the parties
to a dispute express their consent to its jurisdiction, it is competent to deal with any
case referred to it by the parties and then introduced what in reality amounted to an
additional requirement for the admissibility of counterclaims: connection with the
principal claim. The Court held that the counterclaim of Poland
is based on Article 256 of the Versailles Treaty, which article is the basis of the
objection raised by the Respondent, and that, consequently, it is juridically connected with
the principal claim
The claim having been formulated in the Counter-Case, the formal conditions required
by the rules as regards counterclaims are fulfilled in this case, as well as the material
conditions 17

The Court dwelt on the precise relationship between the original claim of
Germany (that Poland should pay compensation for the injury suffered by the
Oberschlesische) and the counterclaim of Poland (that the compensation to be
adjudged should be reduced to the extent of the rights possessed by the German
Reich in the Company, which by virtue of Article 256 of the Versailles Treaty had
been transferred to Poland). The Court found that Polands submission, though in
the form of counterclaim, since its object is to obtain judgment against the
Applicant for the delivery of certain things to the Respondent, was in reality an
objection aiming at off-setting its alleged financial rights in Oberschlesishe
acquired from Germany under the Treaty of Versailles against the compensation
claimed in the application instituting proceedings. In this manner, as the Court
understood, Poland aimed at reducing the compensation to an amount corresponding to the damage actually sustained.18 The Court subsequently rejected the
Polish submission on its merits and found that Article 256 of the Treaty of Versailles could not be applied because the Oberschlesise was not controlled by the
German government but, rather, by German nationals (namely, the Bayerische)
and that the rights acquired by Germany in the Company (by virtue of the contract
of 24 December 1919) were not rights situated on Polish territory for the
Oberschlesische had transferred its registered office from the Upper Silesia to
Germany.19
It is not clear whether the application by the Court of juridical connection
between the principal claim of Germany and the counterclaim of Poland was an
application of a general principle of domestic law that, in the Courts view, was
indispensable for the admissibility of a counterclaim notwithstanding the express
terms of Article 40 of the Rules; or a necessary requirement that overrode the
16
17
18
19

PCIJ Ser. A No 17 (1928), 37.


Id., 38.
Id. 3839.
Id. 3942.

3.1 The Evolution of the Rule on Counterclaims

41

discrepancy with the subject-matter jurisdiction of the Court between the bilateral
Geneva Convention under which Germany instituted proceedings and the Treaty
of Versailles that Poland invoked, in addition to the express statement by Germany
that it would not contest the jurisdiction of the Court on this matter. It appears that
it was the latter consideration that prevailed with the Court, for it stressed that the
substance of Polands counterclaim was an objection directed against the merits of
the principal claim of Germany and had as its object the reduction of the extent of
the compensation sought under it. Although claim and counterclaim were based on
two different treaties they were linked with respect to their substance and the lack
of any objection on the part of Germany in relation to the Courts jurisdiction
allowed the Court to consider Polands submission. One thing is certain, however,
that the Chorzw Factory Judgment influenced subsequent developments with
respect to the evolution of the Courts Rules on counterclaims.
Before proceeding to consider these developments, it is worth mentioning that
shortly prior to the extensive revision of the Rules of the Court in 1936 there was a
second instance in which a counterclaim was presented. In the Eastern Greenland
case Denmark instituted proceedings against Norway the subject of which was the
territorial sovereignty over certain parts of Greenland that was disputed between
the two States. In its application Denmark requested the Court to adjudge and
declare that the promulgation of the declaration of occupation [of certain territories in Eastern Greenland] and any steps taken in this connection by the Norwegian Government constitute a violation of the existing legal situation and are
accordingly unlawful and invalid.20 In its Counter-Memorial Norway presented
what in effect amounted to a counterclaim in asking the Court to adjudge that:
Denmark had no sovereignty over Eirik Raudes Land [Eastern Greenland];
Norway has acquired the sovereignty over Eirik Raudes Land; 21 The Court,
however, made no pronouncement on the Norwegian submission in its Judgment.
Though apparently a counterclaim, Norways submission appears to have been
treated by the Court as a separate application joined with Denmarks application in
the same proceedings.22 However, there is no escape from the fact that both
applications, if this were indeed the case, were adversarial, opposing and mutually
exclusive, namely, Denmarks application was directed against Norway and vice
versa their object being the same: territorial sovereignty over the same piece of
land. If a faithful application of the domestic law analogy were made then Norways action would have to be suspended (or even rejected) under a plea of lis
alibi pendens for the proceedings would involve two opposing suits by the same
parties having an identical object taking place before the same Court. The Norwegian submission in this case might appear prima facie more akin to a defence
rather that a counterclaim properly (and accurately) so called. It aimed at the
defeat of Denmarks application and, at the same time, the judicial recognition of

20
21
22

Legal Status of Eastern Greenland, PCIJ Ser. A/B No. 53 (1933), 2324.
Ibid.
Rosenne 2000, 461; Rosenne 2007, 271; Salerno 1999, 346347.

42

3 Counterclaims before the ICJ: Evolution and Definition

its claim to territorial sovereignty over Eastern Greenland. If Norway had not
reacted the way it did to the Danish application, then the Court would have either
upheld Denmarks claim and the matter would end there, or rejected it without,
however, automatically upholding Norways or any other States opposing claim if
the latter had not been submitted for judgment before the Court. Since Norway had
not instituted separate proceedings against Denmark and was faced with a Danish
institution of proceedings against it about the same matter, it was left with no other
option than to assert its claim by making use of the relevant provision of the Rules
of the Court on counterclaims. However, the upholding of the Norwegian claim
presupposed only and exclusively the defeat of the Danish claim. Therefore,
Norways submission was a genuine counterclaim that operated functionally as a
defence.
During the major revision of the Rules of the Permanent Court undertaken in
the 1930s, counterclaims were extensively discussed and Article 40 of the 1922
Rules was amended in 1936 to become Article 63 of the Revised Rules of the
Court23 that provided the following:
When proceedings have been instituted by means of an application, a counter-claim may
be presented in the submissions of the Counter-Memorial, provided that such counterclaim is directly connected with the subject of the application and that it comes within the
jurisdiction of the Court. Any claim which is not directly connected with the subject of the
original application must be put forward by means of a separate application and may form
the subject of distinct proceedings or be joined by the Court to the original proceedings.

This provision of the 1936 Rules of the Permanent Court reflects the experience
of the Court in dealing with counterclaims in the Chorzw Factory case and a
thorough discussion of the issues surrounding the concept by the Judges of the
Court. It is, thus, more elaborate than Article 40 of the 1922 Rules and its basic
tenets have survived into the text of the Rules of the International Court of Justice.
The right to present counterclaims is restricted to cases brought before the Court
only by way of application, not by special agreement. Moreover, the requirement
of direct connection with the subject of the principal claim was introduced in
addition to the already existing condition that counterclaims must fall under the
jurisdiction of the Court. What is remarkable, however, is that the preparatory
work that led to the adoption of Article 63 of the PCIJ Rules has raised all the
issues surrounding counterclaims that became the subject of consideration by the
International Court of Justice during the 1990s.
In June 1933 the Registrar of the Court produced a Report in which it was stated
that the Court had decided to reconsider counterclaims.24 It added that though the
Court had had no experience on the subject, the issue had arisen25 but the Court
had refrained from dealing with it. On 14 May 1934 the Coordination Commission
produced a Report in which it stated that, first, counterclaims may be presented
23
24
25

See generally, Genet 1938, 145.


PCIJ Ser. D No 2 (Third Addendum) (1936), 803, at 821.
The Eastern Greenland case is mentioned in this respect.

3.1 The Evolution of the Rule on Counterclaims

43

only in proceedings instituted by way of application and, secondly, identified the


issue of the form in which counterclaims could be presented: by separate application or in the course of the same proceedings initiated by the applicants
action?26 During the discussion among the members of the Court the issues
concerning counterclaims that were raised included the following:
First, that counterclaims could be presented only in proceedings introduced by
way of application and not by way of special agreement. Judge Anzilotti pointed
out that in cases brought by way of special agreement there was no question of
counterclaims but only of reciprocal claims.27 This position was not contested by
the other members of the Court.
Secondly, the form in which counterclaims could be presented. Judge
Negulesco asserted that a respondent would have to present counterclaims by way
of separate application and not in the submissions of the Counter-Memorial, for
three reasons: (a) It would bring the presentation of counterclaims in conformity
with Article 40 of the PCIJ Statute that required claims to be brought before the
Court either by application or by special agreement, not in the Counter-Memorial.
In the latter case, counterclaims could not be communicated to third States so that
they might consider intervening in the proceedings. (b) If a counterclaim was to be
identified with a plea of defence, the Court could not pass judgment on it in the
operative part but only on the grounds (of the Judgment); he said in this respect:
But there are cases in which the counter-claim might outweigh and nullify the
principal claim, so that the Court should be able to give judgment upon it against
the applicant.28 (c) The existing Rule on counterclaims (namely, Article 40 of the
1922 PCIJ Rules) would be contrary to the principle of equality of the parties in
the written proceedings, for the original applicant could address the counterclaims
of the respondent only once in his Reply to the latters Counter-Memorial,
whereas, the respondent (the counter-claimant) could address the issues raised in
the counterclaims twice, both in the Counter-Memorial and the Rejoinder.29 The
opposite view was expressed by Judges Anzilotti and van Eysinga. Judge Anzilotti
said that, although Judge Negulescos concerns were theoretically sound, they
were practically of limited advantage. He argued that the right to raise counterclaims in the Counter-Memorial served the real purpose and conveyed the real
meaning of the concept, namely, to enable the respondent to demand in the
course of the same proceedings what was due to him from the applicant for a
reason related to the dispute already pending.30 Moreover, he took the view that
notification to third States was not much important, because the Rules of the Court

26

PCIJ Ser. D No. 2 (Third Addendum) (1936), 870871.


Judge Anzilottis remark was made in response to a question posed by Judge Urutia on
whether it would be possible to present counterclaims in cases brought by special agreement.
See PCIJ Ser. D No. 2 (Third Addendum) (1936), 13th Meeting, 28 May 1934, 109.
28
See id. 13th Meeting, 28 May 1934, 105.
29
Id. 107.
30
Id. 105.
27

44

3 Counterclaims before the ICJ: Evolution and Definition

included a provision (Article 42) by virtue of which third States could have
knowledge of the written proceedings and be informed with respect to counterclaims raised in the Counter-Memorial.31 Judge van Eysinga also stressed that
Judge Negulescos proposal was of limited significance. He pointed out that if that
proposal was adopted then it could not dispense with the issue of considering (or)
treating a counterclaim as a separate action with respect to the main proceedings.32
Thirdly, there was discussion as to the meaning of counterclaims. Judge
Schcking raised the issue of whether counterclaims constituted a means of
defence against the principal claim or autonomous causes of action irrespective of
any connection to the principal claim.33 Judge Anzilotti referred to the precedent
of the Chorzw Factory case in which the Permanent Court had ruled that a
counterclaim was admissible if it was connected with the principal claim and said
that sometimes a counterclaim constituted a means of defence and the Court could
not in justice pass judgment upon the principal claim without at the same time
considering the plea of defence.34 At this point the Registrar of the Court confirmed that the Rule on counterclaims in Article 40 (2) (4) of the 1922 Rules was
based on the procedure of the US Supreme Courtan outright domestic law
analogyand revealed the verbatim record of the 1922 discussion on the drafting
of the Rule on counterclaims among the members of the Court for the official
record of the preparatory work made only a laconic reference to it.35 According to
this record36 Judge Weiss had asked whether a counterclaim could be regarded as a
defence to the principal claim in some cases. Judge Anzilotti had replied [T]hat is
what we call a plea of counterclaim, but that would be a question decided by the
Court in the particular case. Lord Finlay had stated that
There might be une demande reconventionelle which though in form of a demand, was
really in the nature of a defence to the proceedings. It might be so closely connected with
it, that it would be very wrong for the Court to take cognizance of the claim without taking
cognizance of the counterclaim. On the other hand, there may be cases where a totally new
subject would be introduced which the parties had never consented to refer to the Court,
and that danger would be guarded against by the words proposed by M. Beichmann37

The preparatory work of 1936 reveals that the nature of a counterclaim as a


defence or a totally new claim was directly linked to the form in which it would
be introduced before the Court. Judge Fromageot38 stressed that a distinction had

31

Id. 106.
Ibid.
33
Id. 105.
34
Id. 105.
35
The relevant passage refers to a discussion during which stress was laid on the difference
between counterclaims essential for the purpose of defence, and counterclaims independent of the
case; PCIJ Ser. D No. 2 (1922), 140.
36
PCIJ Ser. D No. 2 (Third Addendum) (1936), 107108.
37
Id. 108. See also supra n. 5.
38
Id. 109110.
32

3.1 The Evolution of the Rule on Counterclaims

45

to be drawn between counterclaims constituting defensive pleas rebutting the


submissions in the applicants Memorial and counterclaims constituting the presentation of a fresh claim. In the first case, he argued, the proposal of the
Coordination Commission should be retained (namely, that a counterclaim may be
presented in the Counter-Memorial provided that it falls under the jurisdiction of
the Court and the case had been brought by way of application); whereas, in the
second contingency (that a counterclaim constituting a fresh claim could, by
implication, only be introduced by a separate, or new, application) the Court might
or might not join the two applications. As a result, Judges Negulesco, Wang,
Schcking and Fromageot that laid great importance to the direct relationship
between the true nature of a counterclaim (plea of defence or a fresh claim?) and
the form in which it would be presented proposed to replace Article 40 (2) of the
Coordination Commission Report with a special article that read39:
No claim may be included in the Counter-Case as a counterclaim unless it is directly
connected with the subject of the application filed by the other party and unless it comes
within the jurisdiction of the Court

This proposal caused Judge Adaci to raise some very substantive questions that,
as will be seen in the subsequent chapters, are of continuing relevance40:
Does a counterclaim constitute a new case or is it merely an incident of the proceedings?
Does direct connection mean a connection in fact or a connection in law? Must there be
both a direct and a juridical connection?
What is the position with regard to the counterclaim as an element of the defence?
Should the proceedings with regard to the same action follow their course?
What is the procedure with regard to the presentation of evidence?
What would become of the counterclaim if the main action is withdrawn?

The replies given by the sponsors of the proposal and Judges Anzilotti and van
Eysinga reveal, first, a wish to distance the concept and function of counterclaims
before the Permanent Court from their function under various systems of municipal law; secondly, divergent views on the meaning and rationale of the
requirement of direct connection; thirdly, the stage in the proceedings where a
counterclaim could be presented.
Judge Negulesco41 remarked that the proposal he co-sponsored had not been
based on any particular system of domestic law. He, then, stressed that the
requirement of direct connection aimed at excluding cross-action, in the
sense of a completely new claim. Therefore, in his view, a counterclaim could be
introduced in the respondents Counter-Memorial in the same proceedings as the
original claim only if it constituted a plea of defence.

39
40
41

Id. 14th Meeting, 29 May 1934, 110.


Id. 111.
Id. 111.

46

3 Counterclaims before the ICJ: Evolution and Definition

Judge Fromageot42 addressed most of the issues raised. He said that a counterclaim
did not introduce a new case (the case being the suit instituted by the applicant) and
that the connection requirement implied a connection of fact, namely, that the same
element of fact would underlie both the principal claim and the counterclaim. A
connection in law was conceivable but it would not suffice to enable a demand to be
forward as a counterclaim. Moreover, the connection had to be direct in the sense
that a remote connection would not be sufficient. Furthermore, he expressed the view
that the original proceedings would follow their course and that withdrawal of the
main action was possible only if the respondent consented to it, an unlikely event in
case the latter had presented a counterclaim. In addition, Judge Fromageot, pointed
that the concept of counterclaims before the Permanent Court should have a
meaning which was particular to this Court and totally unrelated to the meaning
attributed to counterclaims in municipal law. Finally, he stated that the term counterclaim referred only to the form in which a claim was presented, whereas the concept
of direct connection with the original claim was relative to the nature of the claim.43
Judge Schcking44 said that the concept of direct connection was a flexible
formula that would be interpreted by the Court. However, in his view, it would be
a connection of both law and fact. At a later stage of the preparatory work, he also
raised the question of whether a counterclaim, which fulfilled the requirements of
Article 63 of the Rules, could be presented at a stage of the proceedings subsequent to the filing of the Counter-Memorial.45 This latter issue appears to have
been answered in the negative.46
Judge Anzilotti47 stressed that the presentation of counterclaims does not
initiate a new proceedings but it is added to a case already pending before the
Court. He took the view that the requirement of connection between the original
claim and counterclaim had to be laid down because the Court had established it in
its jurisprudence, namely, the Chorzw Factory case. However, he was opposed to
any attempt at defining the concept of direct connection in advance and thought
it was preferable to leave this task to the jurisprudence of the Court.48
Finally, Judge Wang49 said that the rationale underlying the direct connection of a counterclaim with the principal claim was an attempt at reconciling two
opposing systems with respect to counterclaims prevailing at the time in the
42

Id. 111112, 113.


Id. 115.
44
Id. 112.
45
Id. 51st Meeting, 8 April 1935, 441.
46
Id. 440441. The President of the Court stated that in this case a claim should constitute the
subject of a separate application that could be joined to the original proceedings, while Judge
Anzilloti expressed the view that counterclaims could be presented earlier but not later than the
Counter-Memorial, the latter possibility being contrary to the interests of both the parties and the
Court.
47
Id. 112113.
48
Judge van Eysinga agreed with this view. Id. 113.
49
Id. 114.
43

3.1 The Evolution of the Rule on Counterclaims

47

context of the post-First World War Mixed Arbitral Tribunals by combining their
advantages: the unqualified admissibility of counterclaims, on the one hand, and
the express prohibition of counterclaims, on the other.
The Permanent Court considered the presentation of counterclaims under
Article 63 of its [Revised 1936] Rules on two occasions: in the Diversion of Water
from the Meuse (Netherlands v. Belgium) case50 and in the Panevezys-Saldutiskis
Railway (Estonia v. Lithuania) case.51
In the River Meuse case the Netherlands instituted proceedings against Belgium
alleging that the latter by the construction or planned construction of certain works
and the actual or future supply with water from the river Meuse of a number of
canals violated the Treaty of Hague of 1863 which introduced a regime concerning
the taking of water from the Meuse.52 In its Counter-Memorial Belgium presented
a counterclaim under Article 63 of the PCIJ Rules in which it alleged breaches by
the Netherlands of the same Treaty because of the construction of a barrage and
the supply of water from the Meuse of the large Juliana Canal used for navigation.53 The Court ruled that the Belgian counterclaim was connected with the
principal claim and, consequently, it was admissible.54 However, it subsequently,
rejected it on its merits as it did with respect to the Netherlands application. So far
as the admissibility of the counterclaim was concerned it was very much a
straightforward case. Both the principal claim and the counterclaim were based on
the performance of the same treaty and related to the same factual context. There
was, therefore, a close, namely, a direct connection of both law and fact between
the Netherlands claim and Belgiums counterclaim.
In the Panevezys-Saldutiskis Railway case, Estonia instituted proceedings
against Lithuania because the latter had refused to recognize the property and
concession rights of an Estonian company to operate the Panevezys-Saldutiskis
railway.55 Lithuania presented a counterclaim in its Counter-Memorial under
Article 63 of the Rules in which it asserted that reparation, should the Court rule
that it was due should be fixed at a certain amount.56 At the same time, Lithuania
raised two preliminary objections with respect to the admissibility of the application of Estonia concerning the requirements of the exercise of diplomatic protection on behalf of the company, namely, the nationality of claims and the
exhaustion of local remedies.57 The Court upheld the objection with respect to the
non-exhaustion of local remedies and dismissed the application of Estonia. As a
result it did not consider at all the counterclaim of Lithuania.

50
51
52
53
54
55
56
57

PCIJ Ser.
PCIJ Ser.
PCIJ Ser.
Id. 7.
Id. 28.
PCIJ Ser.
Id. 7.
Id. 6.

A/B No. 70 (1937).


A/B No. 76 (1939).
A/B No. 70 (1937), 56.

A/B No. 76 (1939), 56.

48

3 Counterclaims before the ICJ: Evolution and Definition

3.1.2 The International Court of Justice


The Statute of the ICJ, like its predecessor, the Permanent Court, does not include
a provision entitling a respondent State to present counterclaims and the matter is,
again, regulated by the Rules of Procedure of the present Court. The Rules of the
Court on counterclaims have undergone amendments on three occasions since the
establishment of the ICJ in 1946.
The Rules of the Court adopted in 1946 provided the right of a respondent to
raise counterclaims in Article 63:
When proceedings have been instituted by means of an application, a counterclaim may be
presented in the submissions of the Counter-Memorial, provided that such counterclaim is
directed connected with the subject-matter of the application and that it comes within the
jurisdiction of the Court. In the event of doubt as to the connection between the question
presented by way of counterclaim and the subject-matter of the application the Court shall,
after due examination, direct whether or not the question thus presented shall be joined to
the original proceedings.

This Rule remained unchanged as Article 68 after the revision of the Rules of
the Court in 1972. The above Rule has retained the language of its counterpart
Rule of the Permanent Court only with respect to the first phrase of the provision.
There has been, however, a substantial diversion with respect to the fate of a
counterclaim if it was not directly connected with the subject of the principal
claim. Under Article 63 PCIJ Rules an unconnected counterclaim had to be presented by way of separate application, following which it might form the subject of
separate proceedings or be joined by the Court to the original proceedings. Under
Article 63 of the ICJ Rule a mere doubt, as opposed to a definitive conclusion or
certainty, in relation to connection would not automatically lead to the re-submission of the hitherto counterclaim (included in the Counter-Memorial) as a
separate claim in a separate application constituting the initiation of separate
proceedings. It just would offer the Court the discretion after due examination to
join or not the counterclaim to the original proceedings. This leads to the logical
question of what would be the fate of the counterclaim in the event of a finding that
there was not a connection with the principal claim or that there was strong doubt
with respect to such connection. Would the counterclaim be rejected as inadmissible or could, in any case, form the subject of a new application? And if the
latter was the case, would joinder be by definition precluded? Regrettably, there is
no record of the preparatory work of the drafting of Article 63 of the 1946 Rules or
of the subsequent revision in 1972. In the two cases in which counterclaims were
presented under Article 63 of the 1946 Rules (The Asylum case58 and the Rights of
US Nationals in Morocco case59) the issue did not arise because the Court upheld
the admissibility of the counterclaims.
58

Asylum Case (Colombia/Peru), ICJ Rep. 1950, 266.


Case Concerning Rights of Nationals of the United States of America in Morocco (France v.
United States of America), ICJ Rep. 1952, 176.

59

3.1 The Evolution of the Rule on Counterclaims

49

In 1978 the Rules of the Court underwent substantial revision. Among the
provisions that were revised was the one on counterclaims that now became
Article 80 of the Rules and was included in the sub-section of Incidental Proceedings. Article 80 reads:
1. A counterclaim may be presented provided that it is directly connected with the subjectmatter of the claim of the other party and that it comes within the jurisdiction of the Court.
2. A counterclaim shall be made in the Counter-Memorial of the party presenting it, and
shall appear as part of the submissions of that party.
3. In the event of doubt as to the connection between the question presented by way of
counterclaim and the subject-matter of the claim of the other party the Court shall, after
hearing the parties, decide whether or not the question thus presented shall be joined to
the original proceedings.

The provision on counterclaims has undergone some substantive revision in that


counterclaims may not only be presented in cases that are brought before the Court by
way of application. This implies that counterclaims may, at least theoretically, be
raised in cases that are submitted to the Court by way of a special agreement.
Moreover, there has been a development with respect to the procedure of evaluating
counterclaims by the Court. This matter has become the subject of incidental proceedings, namely, separate proceedings involving distinct written presentation and
hearings as a result of which the proceedings on the merits of the case are temporarily
suspended. Furthermore, the incidental nature of counterclaim proceedings means
that a counterclaim to be considered as such must be confined within the parameters of the case actually pending before the Court,60 without, however, losing its
character as an independent claim61 The Rule of Article 80 was frequently invoked
by respondent States in the 1990s and for the first time in its history the Court has had
the opportunity to consider counterclaims in some depth. The same is true of separate
and dissenting opinions of individual judges. These cases are: the Bosnian Genocide
case, the Oil Platforms case, the Cameroon v. Nigeria case, the Congo v. Uganda
case and the Jurisdictional Immunities case. As a result of the issues concerning the
principle of equality of the parties in the proceedings with respect to counterclaims in
these cases and the question of the Courts jurisdiction, Rule 80 has undergone yet
another amendment in 2000 and now reads:
1. The Court may entertain a counterclaim only if it comes within the jurisdiction of the
Court and it is directly connected with the subject-matter of the claim of the other party.
2. A counterclaim shall be made in the Counter-Memorial and shall appear as part of the
submissions contained therein. The right of the other party to present its views in writing
on the counterclaim, in an additional pleading, shall be preserved, irrespective of any
decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.
3. Where an objection is raised concerning the application of paragraph 1 or when the Court
deems necessary, the Court shall take its decision thereon after hearing the parties.62

60

Rosenne 2000, 458; Rosenne 2007, 268.


Salerno 1999, 342.
62
The revised Rule 80 was applied by the Court for the first time in the Jurisdictional
Immunities case.
61

50

3 Counterclaims before the ICJ: Evolution and Definition

The latest revision of Rule 80 has introduced some important changes: In the
first place, by substituting the phrase may entertain a counterclaim for [A]
counterclaim may be presented it has rectified a phrasing which, as was pointed
out by Judge Kreca in the Bosnian Genocide case, created the impression that the
requirements of Article 80 (1) concerned the presentation rather than the admissibility counterclaims.63 Secondly, the jurisdiction of the Court appears to have
acquired precedence over the requirement of direct connection.64 Thirdly, it
introduced the right of the respondent to file further written observations to the
original applicants views on the counterclaims in his Rejoinder in order to preserve the principle of equality of the parties. Moreover, the grounds for activating
the incidental proceedings on counterclaims are extended to cover both requirements for the admissibility of counterclaims provided in paragraph 1 of Rule 80.
Thus, if the original applicant raises objections either with respect to the connection of the counterclaim with the principal claim or the jurisdiction of the Court
to entertain it, or if the Court considers that an evaluation of these matters is
necessary, oral hearings will be held. In particular, the existence of doubt
appears to be a matter of concern only for the Court, whereas the original applicant
must raise objections with respect to whether the requirements of the respondents counterclaims are met.
The rulings of the Court, as well as the views expressed by authors on all
matters relating to counterclaims shall be discussed in the subsequent chapters of
this book. The remainder of the present chapter shall deal with the question of
defining the concept of counterclaims.

3.2 Defining Counterclaims


There is no universally accepted (or adopted) definition of counterclaims. In fact,
counterclaims are defined in accordance with their function in the context of a
specific legal system of dispute settlement. It appears that there are only three
features in common among various such systems on the international plane: That a
counterclaim is an independent claim of the respondent against the applicant, that
is more than mere defence to the merits and that it may be presented in the same
proceedings initiated by the applicant in the first place. Moreover, counterclaims
may be presented by way of separate application irrespective of whether they are
expressly allowed or not. Beyond these characteristics, there is divergence of
regulation. In the majority of international judicial or arbitral dispute settlement
contexts their presentation is prima facie allowed. However, it is subject to conditions of admissibility which vary from tribunal to tribunal. The condition
common in various contexts is that counterclaims must fall under the jurisdiction
of the particular tribunal in question. This may be either stipulated expressly in the
63
64

See ICJ Rep. 1997, 243, at 264; Thirlway 2001, 174.


Zimmermann et al. (eds.) 2006, 909.

3.2 Defining Counterclaims

51

statute of each tribunal, be it a treaty or other document, or provided only in the


rules of procedure, leaving, in the latter case, each tribunal to decide in every
concrete case before it whether this condition is fulfilled. The other condition of
admissibility, namely, connection with the subject-matter of the principal claim is
subject to different regulation. In all, it appears that beyond a generic definition
reflecting the basic features of counterclaims as they came to be established in
municipal law there is a degree of divergence which is dependent on the class of
disputes which fall under the competence of an international tribunal. The more
specifically defined a class of dispute the more accurately delineated the scope of
each dispute may be. This means that the genre of claims may be accurately
anticipated and therefore allows provision, equally as accurately, with respect to
counterclaims. This is the case, for instance, in relation to the Iran-US Claims
Tribunal but not the International Court of Justice. For in the case of the latter the
subject-matter of the Courts jurisdiction may be any question of international law,
and within the context of the latter, the scope of a particular dispute may be broad.
The definitions of counterclaims before the Court that have been suggested in the
literature, in the preparatory work of the PCIJ Rules and the ICJ, draw basically
upon the domestic law paradigm.

3.2.1 The Literature


Anzilotti65 has suggested that:
Il existe, en effet, une notion de la demande reconventionelle qui, en substance, est
commune toutes les lgislations, mme si les rgles qui concrtisent cette notion different dans chacune des ces lgislations: d un ensemble des rgles distinctes en leur
forme, mais ayant un contenu en commun, il est bien possible d abstraire ce contenu en
un concept lequel est ensuite concrtis en rgles propres d un autre droit.
L lment commun aux diverses lgislations qui accueillent la notion de la demande
reconventionelle est que, par cette demande, le dfendeur tend obtenir en sa proper
faveur, dans le mme procs intent par le demandeur, quelque chose de plus que le rejet
des prtentions du demandeur, de plus, par consequent, que l affirmation juridique sur
laquelle se base le rejet. Telle est, sans doute, la demande reconventionelle dont parle l
art. 40 du Rglement

Judge Fromageot took the view that counterclaim is a claim directly dependent on the facts of the main action.66 Rosenne has stated that there appears to be
no generally accepted definition of counterclaims67 and the definitions offered by
him68 and other commentators are based on authoritative Law Dictionaries that
65

Anzilotti 1930, 867.


PCIJ Ser. D (Third Addendum) (1936), 112.
67
Rosenne 2000, 457 (notes 1, 2); Rosenne 2007, 267268, (notes 1, 2, 3).
68
Rosenne refers to the Oxford Companion to Law, the Dictionnaire de la Terminologie du
Droit International and the Dictionnaire de Droit International Public, J. Salmon (ed.), 2001.
See supra n. 67.
66

52

3 Counterclaims before the ICJ: Evolution and Definition

contain definitions primarily describing the term as it is understood in municipal


law. Thus, the term counterclaim is defined as a claim presented by a defendant
in opposition to or deduction from the claim of the applicant.69
Thirlway, has suggested that counterclaims are claims presented, in the
context of proceedings already instituted before the [International] Court, by the
respondent against the applicant, and which the respondent wishes to have determined by the Court along with the claims of the applicant in those proceedings 70
Finally, Yee takes the broad view that [S]imply put, a counterclaim is a claim
that a defendant files against the plaintiff in the very proceedings that the plaintiff
has instituted against the defendant.71

3.2.2 The Court


The Rules of Procedure of the International Court and its predecessor, the Permanent
Courtas well as those of arbitral tribunalsdo not offer a definition of the term
counterclaims, confining themselves to stating the requirements for their admissibility and the procedure by which they are to be introduced. The jurisprudence of
the Court, on the other hand, reveals that it does not adopt a specific definition but
rather tends to describe the concept in terms reminiscent of municipal law. The
question that arises is whether this private law analogy results in importing in
international law counterclaims with content identical to this of municipal law or
whether the analogy is consummated in the use of the same term as in domestic law.
According to Sir Hersch Lauterpacht, the analogy between international law and
private law is an analogy of proportions or of similarity of relations: [T]he analogia
proportionis is of decisive importance, not the external similarity of the attributes of
the objects or the subjects of the legal relation.72 This accounts for the adoption of
counterclaims in the procedural rules of international litigation, but the precise
operation of this concept therein may be adapted by international tribunals for their
purposes73 both in drafting their rules of procedure and in the course of their
function as revealed in their jurisprudence.
The International Court, unlike its predecessor and quite late in its jurisprudence, dealt with the concept of counterclaims in the Case Concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia).74 The case arose from an application by

69

Larchan and Mirfendereski 19861987, 11 (n. 1); Renteln 19861987, 380 (n. 2).
Thirlway 1999, 198. Thirlway has restricted the definition to the proceedings before the ICJ.
71
Yee 2006, 907.
72
Lauterpacht 1927, 83.
73
Id., 210211. Cf. Rosenne 2000, 476; Rosenne 2007, 293.
74
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counterclaims), Order of 17 December 1997,
ICJ Rep. 1997, 243, Order of 17 December 1997 [hereinafter Bosnian Genocide case].
70

3.2 Defining Counterclaims

53

Bosnia and Herzegovina instituting proceedings against Yugoslavia for alleged


violations of the Genocide Convention of 1948 against the Bosnian Muslim
population in the course of the conflict in Bosnia in the early 1990s. In its countermemorial Yugoslavia presented counterclaims alleging violations of the Genocide
Convention against the Serb population of Bosnia.75 Bosnia disputed the character
of the claim of Yugoslavia as counterclaim; it argued that, as a matter of
principle, a counterclaim to be considered as such had to be inherently and
essentially a defence on the merits besides claiming something more.76 In other
words, its principal aim was to make [the applicants claim] fail or reduce its
scope and effects.77 Since, the alleged commission of genocide by Bosnia could
not in principle be invoked as a defence to preclude the responsibility of Yugoslavia for the same act78 and Yugoslavia had expressly acknowledged this guiding
principle, its counterclaim lacked its central and indispensable element.79
The Court began its consideration of the admissibility of Yugoslavias counterclaims by inquiring whether these claims constituted counterclaims within the
meaning of Article 80 of the Rules of the Court. The Court ruled:
it is established that a counterclaim has a dual character in relation to the claim of the
other party; a counterclaim is independent of the principal claim in so far as it constitutes a separate claim, that is to say an autonomous legal act the object of which is to
submit a new claim to the Court, and, at the same time it is linked to the principal
claim, in so far as, formulated as a counter claim, it reacts to it; the thrust of a
counterclaim is thus to widen the original subject-matter of the dispute by pursuing
objectives other than the mere dismissal of the claim of the Applicant in the main
proceedingsfor example, that a finding be made against the Applicant; and, , in this
respect the counterclaim is distinguishable from a defence on the merits; 80

The above exposition on what constitutes a counterclaim has been repeated


and relied upon by the Court in the Case Concerning Armed Activities on the
75

ICJ Rep. 1997, 249251, para 5.


ICJ Rep. 1997, 253, para 13.
77
Id. para 14.
78
As the prohibition of genocide in the 1948 Convention is not based on reciprocity.
79
In this respect the position advanced by Bosnia appears to have been influenced by the
prevailing view during the drafting of the 1922 and 1936 Rules of procedure of the PCIJ that
counterclaims partook of the character of defence on the merits. See Sect. 3.1.1 of this Chapter.
80
ICJ Rep. 1997, 256, para 27. The influence of Anzilottis position quoted above n. 65 is
apparent. However, cf. Thirlway 2001, 176 where the author expresses the view that the idea of
reaction to the principal claim is central to the concept of counterclaims and that in the view of
the Court they lie in-between a defence on the merits and a totally independent and separate
claim. Therefore, in Thirlways view, the problem of definition of a counterclaim overlaps with
that of the direct connection with principal claim. Moreover, see 179 where he cites with
approval Judge Weeramanrtys view in the Bosnian Genocide case that a counterclaim that is
autonomous and has no bearing on the determination of the initial claim does not qualify as a
counterclaim. [infra n. 86] Also see Thirlway 1999, 212: One has apparently to conclude
that the question whether a purported counterclaim reacts to the principal claim either depends
simply on whether it is formulated as such or is identical with the question whether the one is
directly connected with the other Contra Yee in Zimmermann et al. (eds.) 2006, 910.
76

54

3 Counterclaims before the ICJ: Evolution and Definition

Territory of the Congo in which counterclaims were presented by the respondent


but the applicant disputed their character as such.81 The Court has not expressly
acknowledged counterclaims as a general principle of municipal law. In this
respect the Court appears to have acted consistently with its practice to apply
general principles of law without calling them by their proper name or invoking
Article 38 (1) (c) of the Statute.82 However, in the opinion of individual Judges the
right to present counterclaims that is provided in Article 80 of the Rules constitutes
precisely such a private law analogy.
Judge Weeramantry in his dissenting opinion in the same case has pointed to
the absence of an authoritative definition of a counterclaim, for the purpose of
the Courts jurisprudence and drew the conclusion that [W]e are thrown back
upon what may be considered as the general and natural meaning of the term, and
upon such general principles as we can gather from scrutinizing counterclaims as
they are understood in legal systems across the world.83 He then proceeded to
define counterclaims:
To my mind, a counterclaim is what its name impliesthat it is a legal claim or factual
situation alleged by the respondent that counters the claim set up by the applicant. The
mere fact that it is a claim made by the respondent in the same proceedings is not enough.
The mere fact that it pays back the plaintiff in the same coin, so to speak, does not make it
a counterclaim. The juristic concept of a counterclaim has more to it than mere parallelism
or reciprocity. There must be some point of intersection between the claims, which makes
one exert an influence upon the judicial consequence of the other.84

He, then, identified two meanings of counterclaims.85 First, a claim made


against another claim in the sense of two claims being opposable to each
otherwhether by way of diminution of responsibility, or by monetary set-off, or
in any other legally recognized manner. Secondly, a claim made by a defendant
in suit against the plaintiff, which implies that counterclaims are envisaged only
in civil proceedings. Moreover, Judge Weeramantry appears to take the view that
counterclaims before the ICJ operate in the same manner as in domestic law and be
81

See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda) (Counter-Claims), Order of 21 November 2001, ICJ Rep. 2001, 660, at
676, para 29; [hereinafter Congo v. Uganda case]. In the Case Concerning Oil Platforms (Iran v.
USA) (Counter-Claim), Order of 10 March 1998, ICJ Rep. 1998, 190, at 203, para 32 [hereinafter
Oil Platforms case], in the Case Concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria) (Counter-Claims), Order of 30 June 1999, ICJ
Rep. 1999, 983, at 985 and in the 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 13, the principal applicants (respectively, Iran, Cameroon and Germany)
did not dispute the character of the respondents (respectively, the USA, Nigeria and Italy)
submissions as counterclaims.
82
Lauterpacht 1958, 167.
83
ICJ Rep. 1997, 288.
84
ICJ Rep. 1997, 289.
85
Ibid. Judge Weeramantry relied on authoritative Dictionaries (notably, The Concise Oxford
Dictionary and Blacks law Dictionary) to ascertain the ordinary meaning of counterclaims.

3.2 Defining Counterclaims

55

inherently of the nature of a defence on the merits: Analogies in domestic


jurisprudence are plentiful. The party responding to a claim for relief seeks, by
presenting the counterclaim, to negate the claim or to reduce or mitigate it. The
principal object of the exercise is to whittle down or destroy the claim presented.
The party seeks alleviation of the legal consequences of its own action through
reliance on countervailing circumstances constituting a claim, though of course it
may seek more. A claim that is autonomous and has no bearing on the determination of the initial claim does not thus qualify as a counterclaim86
Judge ad hoc Kreca in his Declaration in the Bosnian Genocide case expressed
the view that Article 80 of the Rules of the Court tacitly proceeds from the
assumption that a counterclaim is a general legal notion. One cannot explain in any
other way the fact that neither the Statute of the International Court of Justice nor
the Rules of the Court define counterclaims; 87 However, he expressed the
view that counterclaims before the Court do not operate in a manner similar to
their operation in domestic law. Judge ad hoc Kreca invoked the notion of philosophie juridique synthtique and argued that legal notions have two aspects:
logical and extensive. The logical aspect or the generic notion means a general
notion which is familiar to all branches of law. On the other hand, the extensive
side or the extensive notion is reduced to a set of legal prescriptions which
makes the general legal notion specific within the limits of a given legal order. The
logical and the extensive aspects of the legal notion are in a state of dynamic
unityby adopting specific rules one enriches and crystallizes the logical, generic
part of a legal notion which serves as a model and guiding rule for specific rules in
appropriate branches of the law.88
Judge ad hoc Sir Elihu Lauterpacht in the same case very implicitly appears to
have taken the view that counterclaims in Article 80 of the Rules constituted an
analogy with municipal law. He stated that the Statute of the Court was silent on
counterclaims and that by adopting Article 80 of the Rules the Court exercised the
general power conferred to it by Article 30 of the Statute to formulate its Rules of
procedure. In his view this indicated that the Court has considered counterclaims
as a possible aspect of its functions.89
Judge ad hoc Rigaux in his dissenting opinion in the Oil Platforms case stated
that the concept of counterclaims in Article 80 of the Rules of the Court is
borrowed from the vocabulary of municipal law of procedure.90 Moreover, he
criticized Article 80 of the Rules of the Court as deviating considerably from the
general principles of law on counterclaims as they emerge from the practice of

86

ICJ Rep. 1997, 291.


ICJ Rep. 1997, 263.
88
ICJ Rep. 1997, 263. Judge Kreca cites Anzilotti 1930 loc. cit. supra n. 65.
89
Id., 284.
90
Case Concerning Oil Platforms (Iran v. U.S.A.) (Counterclaim), Order of 10 March 1998, ICJ
Rep. 1998, 190, at 230.
87

56

3 Counterclaims before the ICJ: Evolution and Definition

municipal law systems; he has suggested that the Court should approach counterclaims by importing more substantive rules on the matter from domestic law.91
Finally, Judge Canado Trindade in his dissenting opinion in the Jurisdictional
Immunities (Counter-Claim) case expressly stated that Counterclaims are a
juridical institute historically transported from domestic procedural law into
international procedural law 92
The agreement as to the status of counterclaims as a private law analogy or a
general principle of municipal law appears to break down when it comes to the
precise function of counterclaims in proceedings before the ICJ: Do they operate
with same content and in the same manner as in municipal law or does their
transplant in international law modifies their content and function?
It is submitted that the adaptation of a legal concept which is found to all
systems of municipal law, such as counterclaims, to a specific legal order does not
overrule the cogency or alter the character of the process of drawing an analogy of
private law. Moreover, it does not deprive the concept of its basic indicia and
rationale. Any modification by adaptation that occurs arises, first, from the specific
purpose an international tribunal is designed to serve, namely, the class of disputes
it is called to settle.93 Thus, it is possible to argue that an institutionalised arbitral
tribunal having as its object the settlement of commercial disputes or of monetary
claims is more likely to adopt rules of procedure on counterclaims that contain
regulations either identical or very much similar to those of municipal law. On the
other hand, an international court such as the ICJ that settles disputes between
States involving any issue of international law may introduce rules on counterclaims that are premised on a broader analogy with municipal law but are adjusted
to the consensual nature of its jurisdiction that determines in each particular case
the extent of the subject-matter of a dispute to be settled. Secondly, the admission
of a right to make counterclaims and the requirements prescribed to this effect are
in close relationship with the judicial policy of a tribunal concerning procedural
economy, better administration of justice and avoidance of contradictory
judgment.94
For its part, the Court, in the passage from the Bosnian Genocide case quoted
above and other pronouncements in its counterclaims Orders has taken the view
that under Article 80 of its Rules of Procedure the concept of counterclaim has the
following indicia:

91

ICJ Rep. 1998, 190, at 233234.


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 Canado
Trindade (diss. op.), para 4.
93
See statement by Judge Fromageot during the preparatory work of the revision of the 1922
Rules of Procedure of the PCIJ in 1934, PCIJ Ser. D No 2 (Third Addendum) (1936), 112. Judge
Fromageot expressed the view that the meaning of the term counterclaim before the Court
should not be the same as in various municipal law systems and that it was to be formulated
strictly for the purposes of proceedings before the specific court.
94
Salerno 1999, 333
92

3.2 Defining Counterclaims

57

(1) It has a dual character, namely, (a) it is a new, separate, autonomous claim
independent of the original claim of the applicant and (b) it simply reacts to
the principal claim.
(2) It widens the original subject-matter of the dispute, because
(3) It does not exclusively pursue the rejection of the claim of the original
applicant; in other words, a counterclaim is not a defence on the merits.
(4) By reason of the requirement of direct connection with the subject-matter of
the applicants original claim, it is not an instance of cross-action.
(5) The rationale of making provision for counterclaims in the Rules of the Court
is essentially the same with domestic law.
(6) It is not a plea of tu quoque.
(7) It is immaterial whether it is a plea of set-off.
The present writer shall discuss these indicia in a different order, beginning with
(5) the rationale of counterclaims, continuing with indicia (1) to (3) and concluding with indicia (4), (6) and (7).

3.2.3 The Rationale or Purpose of Counterclaims


before the ICJ
The rationale underlying the right to present counterclaims in the course of the
same proceedings before the Court appears to be basically the same as in
municipal law. Its essential tenets are procedural economy and sound administration of justice. In the course of the preparatory work of the revision of the
PCIJ Rules of Procedure in 1934 Judge Anzilotti stated that the real purpose and
the proper function of counterclaims rested in their practical advantage giving a
respondent the opportunity to demand in the course of the same proceedings
what was due to him from the applicant for a reason related to the dispute
already pending.95 In its Order on Yugoslavias counterclaim in the Bosnian
Genocide case the Court outlined the purpose of counterclaims in proceedings
before it:
a claim should normally be made before the Court by means of an application instituting proceedings; it is permitted for certain types of claim to be set out as incidental
proceedings, that is to say, within the context of a case which is already in progress, this is
merely in order to ensure better administration of justice, given the specific nature of the
claims in question; as far as counterclaims are concerned, the idea is essentially to
achieve a procedural economy whilst enabling the Court to have an overview of the
respective claims of the parties and to decide them more consistently; 96

95
96

PCIJ Ser. D No 2 (Third Addendum) (1936), 106.


ICJ Rep. 1997, 243, at 257, para 30.

58

3 Counterclaims before the ICJ: Evolution and Definition

Judge Koroma in his separate opinion agreed with the Court on the rationale of
counterclaims stating that the idea of a counterclaim is essentially to achieve
procedural economy whilst enabling the Court to have an overview of the
respective claims of both parties and to decide them more consistently. 97
In the same case Judge ad hoc Kreca appears to have expressed a somewhat
broader view on the rationale of counterclaims. He has taken issue with paragraph 3
of Article 80 of the [1978] Rules because in his view this provision seemed to reduce
the complex nature of counterclaims to a question of procedural economy. He rather
thought that the nature of counterclaims did not allow such a reduction. Although he
acknowledged that the right to present counterclaims was premised on the equality
of the parties and the principle of material truth, he took the view that it was not
restricted to the better administration of justice as an instance of procedural economy
but extended to the complex solution of conflicting relations between the Parties
and the prevention of different trials.98 Whereas in the learned Judges view procedural economy remains a central feature of the rationale of presenting counterclaims, it appears that it is the wider context of the specific Parties relationship
arising from the conflict in Bosnia and the need of resolving any claims thereunder
that conditioned the necessity of observing this procedural economy.
In the Oil Platforms case, the counter-claimant, the USA, expressed the view, as
the Court understood, that the possibility of the Court to rule in the same proceedings
on claims that possess substantial common elements helps to reduce the burden
on the Court guards against inconsistent results and helps the Court to reach a just
and rational result.99 Judge Oda in his separate opinion thought that the purpose of
counterclaims was, first, the proper administration of justice and judicial economy
that enable the Court to consider any or all connected claims in a single proceeding
and, secondly, the avoidance of inconvenience in the event the other party or a third
State filed a new application on issues that were directly connected.
In the Congo v. Uganda case Judge ad hoc Verhoeven expressed the purpose of
counterclaims by reference to municipal law. He thought that the right to make
counterclaims, first, enabled the Court to have a thorough and precise understanding of the dispute and, secondly, to avoid issuing incompatible or contradictory judgments.100
Finally, in the Jurisdictional Immunities case Judge Canado Trindade stated that
he considered as the purposes of counterclaims, first, procedural economy; secondly,
a means of achieving more consistency in the Courts decision and, thirdly, the
realization of justice at international level (emphasis in the original).101

97

Id., 275.
Id., 266.
99
ICJ Rep. 1998, 190, at 201.
100
ICJ Rep. 2001, 660, at 684.
101
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 Canado
Trindade (diss. op.), paras. 15, 1819.
98

3.2 Defining Counterclaims

59

It becomes clear from the above that the rationale of counterclaims as was
expressed by the Court and individual Judges reflects a private law analogy. At the
same time, however, it is also clear that the Court views procedural economy and
better administration of justice as subject to the requirements of admissibility
stated in Article 80 (1) of the Rules. In other words, there has to be a direct
connection between the principal claim and the counterclaim and the latter must
come within the jurisdiction of the Court so that it might be motivated by reasons
of procedural economy and better administration of justice to rule on both claims
in a single proceeding.102 For the Court is not obliged to do so as it expressly stated
that in the normal course of events a claim should be submitted to the Court by
way of separate application and that, consequently, counterclaims heard in the
course of the same proceedings appear to constitute an exceptional situation.
Moreover, there is also a question of judicial policy that is involved, namely,
whether the Court should be inclined to settle and dispose of a multi-faceted
dispute in the same proceedings rather than preferring each aspect of it to form the
subject of separate proceedings. The declaration of Judge Kreca in the Bosnian
Genocide case is implicit of this contingency. So is the declaration of Judge
Verhoeven in the Congo v. Uganda case that raises the likelihood that the principal
applicant might modify or withdraw his consent to the jurisdiction of the Court, in
order to avoid a respondents claim being presented to the Court by way of
separate application and in separate proceedings in the future.103 Moreover, even if
this is not the case, there is nothing to prevent the Court from joining the two
proceedings ending in the same result. In any respect it is the attitude of the Court
toward the two requirements of admissibility of counterclaims that plays a crucial
role. While procedural economy has to do with more practical aspects concerning
the time-consuming duplicate presentation of evidence, written and oral proceedings and judgments, the part of the rationale concerning the better administration of justice may exceed the strict confines of evaluating a specific principal
claim against a specific counterclaim. It impinges on the finality of the settlement
of the various aspects of the particular dispute, especially when there is evidence
beyond doubt that this is the intention of the Parties. However, in its Order of 6
July 2010 in the Jurisdictional Immunities case the Court appears not to adopt a
flexible approach inspired by this consideration. By contrast, it relied on the lack
of jurisdiction to entertain Italys counterclaim as inadmissible104

102

Salerno 1999, 352; Murphy 2000, 19. Cf. Thirlway 2001, 177. Contra 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 Canado Trindade (diss. op.),
paras 2829.
103
ICJ Rep. 2001, p 660, at p 684.
104
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, paras 2631. It is this
approach of the Court towards the general context of the dispute between Germany and Italy that
constitutes the basis of Judge Canado Trindades dissenting opinion (paras 2829).

60

3 Counterclaims before the ICJ: Evolution and Definition

3.2.4 A Counterclaim is not a Defence on the Merits


A defence on the merits is a submission formulated by a respondent which has the
external marks of a claim but aims at the dismissal of the applicants claim by
making it devoid of its factual or legal basis. Thus, a submission by the respondent
having as its subject a ground precluding the wrongfulness of an act which forms
the subject-matter of the applicants claim alleging the responsibility of the
respondent constitutes a defence because it aims at nullifying this claim. To put it
simply, a defence on the merits consummates its purpose in the defeat of the
applicants claim. By way of example, the plea of self-defence by a respondent
faced with a claim of unlawful use of force against the applicant constitutes
precisely an instance of defence on the merits. The nomenclature with respect to a
plea of defence is not important. What is important is the aim of the plea.
It has been maintained, largely on the basis of the preparatory work of the
original drafting of the PCIJ Rules of Procedure in 1922 and of their revision in
19341936, that a counterclaim must partake the character of a defence on the
merits. In the Bosnian Genocide case Bosnia, as the Court understood, asserted
that a counterclaim had a twofold aim: first, to counter the original claim, in the
sense of opposing it so as to block it or minimize its effects, and, secondly, to
claim something more, namely, a judgment against the original applicant.105
According to Bosnia, the claim of Yugoslavia did not meet these requirements and
could not be considered as a counterclaim, because it failed to counter Bosnias
claim and, instead, it introduced a new autonomous claim based on different facts
the resolution of which could not have had any influence on Bosnias principal
claim.106 In other words, Bosnia argued that a counterclaim, to merit to be called
such, had to operate cumulatively as a defence on the merits and as an instance of
introducing a new claim. Yugoslavia retorted that the same set of facts may be
invoked to support both a defence on the merits and a counterclaim, but that these
two actions did not have to coincide in order to have a counterclaim properly socalled. As Yugoslavia maintained before the Court there had been a departure from
the original position that a counterclaim was admissible (as directly connected
with the subject-matter of the principal claim) only when it aimed at the rejection
of the original applicants claim and at obtaining a judgment against him and that
Article 80 (1) of the Rules had to be interpreted in the light of this development.107
The Court in its Order embarked upon the exposition on the concept of counterclaims quoted above in which it simply stated that a counterclaim had to be
distinguished from a defence because it would pursue objectives other than the
mere dismissal of the claim of the Applicant in the main proceedings. The Court
added

105
106
107

ICJ Rep. 1998, 190, at 253, paras 1314.


Ibid.
Id., 255256, para 22.

3.2 Defining Counterclaims

61

in Article 80 of its Rules, the Court did not confer a different meaning on the expression
counterclaim; the inclusion of Article 80 in Section D (Incidental Proceedings) of
Part III (Proceedings in Contentious Cases) of the Rules of the Court, and the provisions
set out in that Article show that it does not apply to mere defences on the merits which the
Court must hear in the normal exercise of its functions to decide the Applicants claims
108

In this context the Court recalled the position it had adopted in its Provisional
Measures Order in the US Diplomatic and Consular Staff in Tehran case according
to which should Iran wish the Court to consider the activities of the USA towards it
and should it take the view that these were connected with the subject-matter of the
US application it remains open to that [the Iranian] Government under the
Courts Statute and Rules to present its own arguments to the Court regarding
those activities either by way of defence in a Counter-Memorial or by way of a
counterclaim filed under Article 80 of the Rules of the Court.109 The either-or
phrasing in this passage indicated an option which was open to Iran and in the
Bosnian Genocide case the Court ruled that option also manifested the need to
differentiate between counterclaims and defences in the scheme of the Rules of the
Court.110 However, Judge Weeramantry in his dissenting opinion disputed this
finding by relying heavily on the record of the preparatory work of the PCIJ
Rules.111
In the Cameroon v. Nigeria case, though not confronted with an objection by
Cameroon to Nigerias counterclaims, the Court expressed itself somewhat more
clearly on the distinction between counterclaims and defence on the merits. It ruled
that the Counter-Memorial of Nigeria in submission 7 contains claims whereby
Nigeria seeks further to the rejection of Cameroons claims to establish the latters
responsibility and to obtain reparation on that account and that such claims
constitute counterclaims within the meaning of Article 80 of the Rules of the
Court.112
Moreover, in the Congo v. Uganda case Congo objected to Ugandas counterclaims by advancing the argument that a counterclaim, in addition to direct
connection with the subject-matter of the principal claim, had to be pertinent as a
defence on the merits.113 Uganda retorted by arguing that the position expressed
by Congo found no basis in either the jurisprudence of the Court or in doctrine. It
took the view that there had to be no coincidence between a defence and a
counterclaim and that this would constitute a groundless departure from the
principles concerning the application of Article 80 of the Rules.114 The Court, after

108
109
110
111
112
113
114

ICJ Rep. 1997,


ICJ Rep. 1979,
Supra n. 108.
ICJ Rep. 1997,
ICJ Rep. 1999,
ICJ Rep. 2001,
Id., 671.

243, 257, para 28; again the influence of Anzilotti is discernible.


7, at 15, para 24. [emphasis added].
243, at 290291.
983, at 985. [emphasis added].
660, at 667, 670.

62

3 Counterclaims before the ICJ: Evolution and Definition

reiterating the passage from the Bosnian Genocide case on the concept of
counterclaims under Article 80 of its Rules, took a step further to explain the
distinction between counterclaims and defence on the merits. The Court ruled that
the claims of Uganda sought over and above the dismissal of the claims made by
the Congo, a ruling establishing the Congos responsibility and awarding reparations and, therefore, they constituted counterclaims.115 The Court, then,
expressly rejected the position suggested by the Congo stating that the establishment of a direct connection was not subject to the condition that the counterclaimants arguments must both support the counterclaim and be pertinent for the
purposes of rebutting the principal claim.116 The distinction is stated more clearly
in the finding of the Court in the Jurisdictional Immunities case that Germany
does not dispute that the Italian claim is not presented as a defence on the merits
but as a counterclaim within the meaning of Article 80 of the Rules of the
Court.117
It may be concluded that from the Bosnian Genocide case, through the Cameroon v. Nigeria and the Congo v. Uganda to the Jurisdictional Immunities case
the Court has beyond doubt adhered to the view that a counterclaim is a procedural
act completely different from a defence on the merits. Thus, contrary to the views
prevailing during the preparatory work of the PCIJ Rules of Procedure118 and in
the work of authority,119 a claim by the respondent need not to partake the
character of defence on the merits in order to be a counterclaim. On the contrary, a
counterclaim is a separate, independent claim by which the counter-claimant
respondent seeks judgment against the principal applicant premised on an autonomous cause of action. However, as will be seen in the following section, the
requirements of direct connection and jurisdictional link in Article 80 of the Rules
preclude the making of any claim the respondent in a particular proceeding may
have against the applicant arising from any legal relationship between the two
States.120 What is allowed is the raising of a claim of the respondent against the
applicant that arises from the same legal relationship or relationships forming the
subject-matter of the dispute that has been brought by the latter before the Court.
While a counterclaim may be premised on the same factual basis as a defence on
the merits, the two do not coincide. This is because, although a counterclaim
appears on the face of it to have a defensive character, this is so only functionally,
in the sense of a tactical move in litigation, and not substantively. The Court has
115

Id., 677, para 29. [emphasis added].


Id., 679, para 38.
117
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, para 13.
118
Salerno 1999, 336.
119
See Genet 1938, 160161, but cf. 149; Lopes Pegna 1998, 729: Counterclaims are not
something else but something more than a simple defence.
120
See Thirlway 2001, 181. Also 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, 6, para 15.
116

3.2 Defining Counterclaims

63

indeed observed that the respondents counterclaim is a reaction to the principal


applicants claim. But this, together with its subsequent statements on distinguishing between counterclaims and defence on the merits and that by making a
counterclaim a respondent seeks something further or over and above the
dismissal of the original application, leaves no doubt about the nature of the
reaction. It is not a defence as a term of art in the law of procedure; it is rather
of an offensive character. This is succinctly stated in the dissenting opinion of
Judge Canado Trindade in the Jurisdictional Immunities case: Rather than a
defence, a counterclaim appears as a counter-attack.121 For, the real aim of a
counterclaim is not confined to protecting the respondent from an adverse judgment at the end of the proceedings which would uphold all of the applicants
claims by simply defeating those claims. It is to serve as an alternative contingency
plan in order to mitigate or deprive such a judgment of a substantial portion of its
adverse character.122 This is made possible by the reality of the multi-faceted
nature of most inter-State disputes as a result of which the original respondent may
have legitimate claims against the original applicant. In this case the respondent
does have the right both as a matter of law and as a matter of fairness to demand of
the principal applicant what is due to him. The medium to realize this aim is the
right to present counterclaims and this medium is inherently not defensive.

3.2.5 Counterclaims before the ICJ do not Constitute


Cross-Action
The concept of cross-action means the right of a respondent to present a claim
against the applicant in the same proceedings without it being necessary that a
connection exists between the subject-matter of the applicants claim and the
respondents counter-action. In other words, counter-action is a counterclaim
which is not subject to the requirement of direct connection. In some municipal
law systems, such as the US, the distinction is drawn between direct and
indirect counterclaims, the former being directly connected with the subjectmatter of the original claim while the latter is not.123 In other domestic law
systems, such as the one of Greece, counterclaims are identical with counter-action
for the law requires of no direct connection.124
121

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 Canado
Trindade (diss. op.), para 17.
122
In the Congo v. Uganda Case (Merits), for instance the Court upheld Ugandas second
counterclaim concerning the attacks on the Ugandan Embassy in Kinshasa, its diplomatic
personnel and nationals. Moreover, in the Oil Platforms case the Court rejected the claims of both
parties. See Rosenne 2007, 293; Murphy 2000, 20.
123
Renteln, Encountering Counterclaims 19861987, 380381.
124
See Art. 268, Code of Civil Procedure; see supra Chap. 2.

64

3 Counterclaims before the ICJ: Evolution and Definition

This not the case with respect to counterclaims before the ICJ. The requirement
of direct connection between the principal claim of the applicant and the counterclaim of the respondent was introduced in the PCIJ Rules of Procedure in 1936
precisely to exclude the possibility of cross-action. During the preparatory work of
1934 Judge Negulesco expressly stated this position when he explained the proposal of a provision on counterclaims submitted by him and Judges Wang,
Fromageot and Schcking: In using the expression direct connection the
authors of the proposed text had in mind the term counterclaim and wished to
exclude the cross-action 125 The requirement of direct connection has
remained unchanged in the Courts Rules until the present Article 80.
The Court has adopted a very rigorous stance toward the exclusion of crossaction, without, however, calling it by its proper name. It has treated the possibility
of bringing a cross-action as an instance of presenting any counterclaim and it has
considered this contingency as a case of abuse of the right to present counterclaims. In its Order in the Bosnian Genocide case the Court ruled that:
the admissibility of the counterclaims must necessarily relate to the aims thus pursued
and be subject to conditions designed to prevent abuse.
the Respondent cannot use a counterclaim as a means of referring to an international
court claims which exceed the limits of its jurisdiction as recognized by the parties; the
Respondent cannot use that means either to impose on the Applicant any claim it chooses,
at the risk of infringing the Applicants rights and of compromising the proper administration of justice; and it is for that reason that paragraph 1 of Article 80 of the Rules of
Court requires that the counterclaim comes within the jurisdiction of the Court and
that it is directly connected with the subject-matter of the claim of the other party 126

It is worth noting the tenor of generalization with respect to the exclusion of


cross-action in the passage above: counterclaims cannot be used by a respondent as
a means of referring to an international court (not the International Court of
Justice) claims that exceed its jurisdiction or of presenting any claims the
respondent chooses. In this respect the Court appears to express accurately the
practice concerning the making of counterclaims before other international tribunals, where a degree of connection and the existence of jurisdictional link are
required. What matters, though, is that it not only excludes cross-action in its own
proceedings but it also considers it as an abuse of process with respect to any
proceedings. It is submitted that the basic factor for this stance of the Court seems
to rest on the consensual nature of its jurisdiction.127 If cross-action were allowed
as counterclaim in the same proceedings then this would effectively overrule the

125

PCIJ Ser. D No 2 (Third Addendum) (1936), 111.


ICJ Rep. 1997, 243, at 257258, paras 3031. See also Oil Platforms case, Order of 10 March
1998, ICJ Rep. 1998, 190, at 203, para 33; Congo v. Uganda case, Order of 29 November 2001,
ICJ Rep. 2001, 660, at 678, para 35.
127
Cf. ICJ Rep. 1997, 243, at 268269 (per Judge ad hoc Kreca). Judge Kreca took the view that
the distinction between counterclaims and cross-action (or cross-claims in his words) was
premised on the requirement of direct connection, especially, the connection in law between the
principal claim and the counterclaim.
126

3.2 Defining Counterclaims

65

consensual basis of the Courts jurisdiction as the central and most important
feature of the settlement of disputes between States before this particular institution. States are willing to have recourse to the Court on the conviction that the
Court shall deal only and exclusively with matters that are the object of their
express consent. The likelihood that a State may be confronted with any claim the
other party may have against it in proceedings that were instituted to settle another
dispute will possibly discourage States from submitting disputes to the Court.128
The rejection of the counterclaim of Italy in the Jurisdictional Immunities case is
illustrative. The Court ruled that the counterclaim did not fall under its jurisdiction
(based on Article 1 of the European Convention for the Peaceful Settlement of
Disputes (1957)) because it related to facts and situations antedating the entry into
force of the Convention between the parties which were excluded by virtue of the
general temporal limitation in Article 27 (a) of the Convention. Had the Court
ruled otherwise, as Judge Canado Trindade forcefully argued in his dissenting
opinion, and allowed the counterclaim of Italy then this would have been a case of
cross-action: By ruling in favor of the existence of a dispute going beyond the
jurisdictional framework of the European Convention the Court would have pronounced admissible something new; a claim, which even though apparently
connected with the principal application, fell outside the jurisdictional parameter
of Article 80 of the Rules.

3.2.6 Counterclaims before the ICJ and Claims at Set-Off


By a claim at set-off by the respondent aims at reducing, balancing or neutralizing
in its entirety a monetary claim by the applicant. In many municipal law systems it
is treated as a separate, independent objection to the suit brought by the applicant,
rather than as an instance of a counterclaim as an alternative to a separate
application instituting a new set of proceedings. It is not inconceivable that in
proceedings before the Court a request for damages by the principal applicant may
be confronted with a claim for compensation by the respondent, the claims in both
instances arising from the alleged responsibility of each party toward the other. In
this case, though it would be more accurate to speak of set-off instead of a
counterclaim there is nothing to prevent this course of action by the respondent
from not falling under the general requirements for counterclaims.129
A counterclaim as a concept is broader in character than a set-off. It may
include not only strictly speaking monetary claims but also claims consisting
solely of violations of international obligations by the applicant toward the
respondent. In the Diversion of the River Meuse case Belgium, the respondent,

128

See Congo v. Uganda (Counterclaims), ICJ Rep. 2001, 660, Judge ad hoc Verhoeven
(declaration), 684685.
129
See the treatment of set-offs by the IranUS Claims Tribunal, supra Chap. 2.

66

3 Counterclaims before the ICJ: Evolution and Definition

raised by way of counterclaim the violation by the Netherlands, the applicant, of


the bilateral treaty regulating the management of the waters of the Meuse between
the two States, the same treaty the alleged violations by which Belgium constituted
the cause of action on the part of the Netherlands. In the Asylum case Peru invoked
by way of counterclaim the alleged violation by Colombia of the Havana Convention on Granting Asylum. Equally, in the US Nationals in Morocco case the
USA presented a counterclaim against France arising from pre-existing treaty
obligations between the two countries. In the Bosnian Genocide case Yugoslavia
asserted by way of counterclaim the charge that Bosnia and Herzegovina also
incurred responsibility for the commission of genocide against the Bosnian Serbs
on its territory. In the Oil Platforms case the USA raised by way of counterclaim
against Iran the allegation of unlawfully using force against US-owned or USbound shipping and cargo in the Persian Gulf during the last stages of the IranIraq
war of 19801988. Similarly, in the Cameroon v. Nigeria case Nigeria counterclaimed the responsibility of Cameroon for a series of armed clashes along their
common border. Finally, in the Congo v. Uganda case the first counterclaim
presented by Uganda alleged violations of the rule of non-use of force by the
Congo for providing assistance to armed bands operating against it. Thus, in the
majority of cases in which both the PCIJ and the ICJ were faced with counterclaims presented by the respondent States their object was responsibility for
violation of international obligations and not strictly monetary claims.
The only case where the Court encountered a counterclaim bearing the marks of
a set-off is the Chorzw Factory (Merits) case. In this case, as already noted above,
the Permanent Court considered that Polands submission, even though it was
formulated in the form of counterclaim, since its object is to obtain judgment
against the Applicant for the delivery of certain things to the Respondent, was
rather an objection toward off-setting its alleged financial rights in Oberschlesishe
acquired from Germany under the Treaty of Versailles against the compensation
claimed in the application instituting proceedings. In this manner, as the Court
understood, Poland aimed at reducing the compensation to an amount corresponding to the damage actually sustained.130 Moreover, the Iran-US Claims
Tribunal that has drawn the distinction between counterclaims and set-off in its
jurisprudence adopted the view that the admissibility of a set-off should be judged
on the basis of the requirements for the admissibility of counterclaims.131 The
Court for its part has never made such a distinction in principle, but it appears from
the Chorzw Factory (Merits) Judgment that it treats counterclaims as a generic
concept under the requirements of admissibility of which a claim at set-off may be
evaluated and ruled upon.

130

Case Concerning the Factory at Chorzw (Merits), PCIJ Ser. A (1928), 3839. See also
supra 34.
131
See supra Chap. 2.

3.2 Defining Counterclaims

67

3.2.7 A Counterclaim is not a Plea of tu quoque


The issue that arises under this rubric is whether the presentation of a counterclaim
by the respondent State may serve as allegation that the principal applicant has
done the same as it contends against the respondent in its application instituting
proceedings. The question becomes particularly poignant in the case where the
original application which initiates the litigation alleges violations of peremptory
norms of international law or rules that give rise to obligations erga omnes.
The matter arose in the Bosnian Genocide case with respect to the counterclaim
of Yugoslavia that Bosnia, the applicant, was responsible for genocide against the
Serb population of the country. In its written observations of 9 October 1997 on
the counterclaim of Yugoslavia, Bosnia maintained, as the Court understood, that
given the erga omnes and non-reciprocal nature of the obligations under the
Genocide Convention and the fact that there was no logic of reciprocity in the
system enunciated by it it cannot be envisaged that the judicial finding of a
violation of the Convention committed by a State could in the event be influenced
by the fact that a second violationof which the State in question is allegedly the
victimhad been perpetrated 132
In a communication of 23 October 1997 concerning its own observations on
both the admissibility of its counterclaim and the observations submitted by
Bosnia, Yugoslavia stated that it agreed with the Applicant that a breach of the
Genocide Convention cannot serve as an excuse for another breach of the same
Convention.133 However, it added that both States were in dispute with respect to
the breach of the Convention, namely, whether genocide had been committed
against the Muslim and non-Serb population of Bosnia. Moreover, Yugoslavia
maintained that the facts constituting the basis of the counterclaim, namely,
genocide committed against the Serb population in Bosnia, were part and parcel
of the circumstances of the situation and essential for the Court to reach a better
understanding, on the one hand, of the motives and intentions of individuals who
committed crimes vis--vis Muslims, and on the other, on the proper qualification of the acts alleged by the Applicant.134
The Court ruled that
Bosnia and Herzegovina was right to point to the erga omnes character of the obligations flowing from the Genocide Convention and the Parties rightly recognized that
in no case could a breach of the Convention serve as an excuse for another; however,
the argument drawn from the absence of reciprocity in the scheme of the Convention is not
determinative as regards the assessment of whether there is a legal connection between the
principal claim and the counterclaim, in so far the two Parties pursue, with their respective
claims, the same legal aim, namely the establishment of legal responsibility for violations
of the Genocide Convention. 135

132
133
134
135

ICJ Rep. 1997, 243, at 253, para 12.


Id., 255, para 21.
Ibid.
Id., 258, para 34.

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3 Counterclaims before the ICJ: Evolution and Definition

In his separate opinion, Judge ad hoc Sir Elihu Lauterpacht excluded the
possibility that the Court could exercise its discretion and consider the substance of
the counterclaim of Yugoslavia at a stage subsequent to the consideration of the
claim of Bosnia. In his view the material supporting Yugoslavias counterclaim
was also essential to the defence to the principal claim of the applicant and it was
impossible at that stage of the case to assess whether this material could or could
not be used as a defence to Bosnias claim. He then, in a single phrase and without
elaboration, alerted the Court to the possibility that the Yugoslav CounterMemorial is advancing a tu quoque argument.136
It was Judge Weeramantry who expressed the strongest objection to the
admissibility of the counterclaim of Yugoslavia on the basis of whether offences
under the [Genocide] Convention are of such nature that they can be used to
counter each other in the context of the provision regarding counter-claims in
Article 80 of the Rules of the Court, notwithstanding the fact that there was
general agreement that a violation of the Genocide Convention could not be
invoked to justify another breach thereof.137 The learned Judge has laid emphasis
on the criminal nature of the acts the Genocide Convention seeks to suppress and
argued that a concept such as counterclaims, which was particular to civil law,
could not be invoked to offset one criminal act against another. In his words:
An act of genocide by the applicant cannot be a counter-claim to an act of
genocide by the respondent.138 Judge Weeramantry has argued that this is a
position of principle because of the gravity of the crime of genocide and the erga
omnes character of the obligations flowing from its prohibition and, consequently,
it may never be the object of balancing individual State interests by way of
counterclaim. It could only be the subject of separate proceedings.139
The plea of tu quoque purports to be a defence to an allegation of a violation of
an obligation and its premised on the principle of reciprocity. It is not admitted as
such in the context of individual criminal responsibility in international law and
neither does it constitute a generic and universally applied ground of precluding
the wrongfulness of an act that gives rise to State responsibility. In the latter
contingency wrongfulness may be precluded under specific grounds that operate
under strict and restrictively interpreted conditions, such as self-defence, countermeasures and consent, the invocation of which is excluded if they conflict with a
rule of jus cogens.140 Moreover, in the specific context of treaty relations, a treaty
may be terminated or suspended in case of a material breach,141 but this is not
admissible with respect to provisions relating to the protection of the human

136
137
138
139
140
141

Id., 285, para 20.


Id., 288.
Id., 292.
Id., 292293.
See J. Crawford 2002, Articles 2027.
Article 60, Vienna Convention on the Law of Treaties (1969).

3.2 Defining Counterclaims

69

person contained in treaties of a humanitarian character.142 Although the invocation of tu quoque does not constitute a ground of precluding wrongfulness it
does have an arresting impact and the end result may be a mitigation of responsibility. In the field of international criminal justice tu quoque may not be
admissible as a defence precluding individual criminal responsibility but may
result in the non-sentencing of a defendant.143 However, the latter contingency
must not be taken to constitute an inevitable outcome of the invocation of the plea
and everything depends on the judicial discretion of a tribunal.
In the Bosnian Genocide case both Parties were in agreement that as a matter of
principle the commission of genocide did not justify another commission of
genocide. Therefore, the presentation of the counterclaim by Yugoslavia alleging
the responsibility of Bosnia for genocide against the Serb population of the country
did not and could not have the function of a defence aiming at precluding the
responsibility of Yugoslavia for the genocide allegedly committed against the nonSerb population of Bosnia. On the other hand, it appeared to constitute a sensational public relations move that would result in the diminution of the impact of
Bosnias accusation against Yugoslavia, again in the field of wider impression
upon the media and the public at large. But does this mean that a counterclaim on
the commission of genocide in the face of a principal claim having the same
subject is in principle inadmissible as a matter of law?144 It is submitted that the
answer must be in the negative.145 This is because a counterclaim does not have
the position or the function of a defence on the merits. Judge Weeramantry appears
to have taken the view that a counterclaim is of the nature of a defence and,
therefore, a counterclaim of genocide against a principal claim of genocide would
be impermissible and would be best brought by way of separate application
forming the subject of separate proceedings. This is a cogent and correct position
provided that a counterclaim functions as defence on the merits. But essentially it
does not. It is a proper and autonomous claim in its own right, raised by the
respondent against the applicant even though, as in the case of Yugoslavias
counterclaim, it is premised on the same facts as the defence on the merits of the
principal application instituting proceedings. Indeed, the same factual basis
underlying both the defence and counterclaim of Yugoslavia in conjunction with
the fact that it was the Bosnian Serbs that initiated an armed uprising against the
newly independent State of Bosnia-Herzegovina, managed to place under their
control a large portion of its territory and consolidated their control by way of
ethnically cleansing this territory of non-Serbs gives at first sight a high degree
of credence to Judge Weeramantrys concerns.

142

Article 60 (5), Vienna Convention on the Law of Treaties (1969).


See the case of Admiral Doenitz in the Nuremberg Trial; International Military Tribunal,
Nuremberg, Judgment, October 1, 1946, 41 AJIL (Suppl.) 172 (1946), at 305.
144
See Thirlway 2001, 176: Factually Yugoslavias counter-claim was a mere tu quoque.
But did this prevent it being a counter-claim in law? Also see Salerno 1999, 352.
145
Contra Lopes Pegna 1998, 732734.
143

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3 Counterclaims before the ICJ: Evolution and Definition

But at the same time it does not in principle preclude the submission of a
counterclaim having the same subject as the principal application in the course of
proceedings arising from a context of violence along ethnic grounds such as the
conflict that erupted as a result of the dissolution of the former Socialist Federal
Republic of Yugoslavia. What the Court was called upon was to assess the merits
of both claim and counterclaim and reach a judgment and the admissibility of
Yugoslavias counterclaim as such would in no circumstances have pre-empted
this judgment. Had Yugoslavia not withdrawn its counterclaim in 2001,146 the
Court would have to evaluate both allegations of State responsibility for genocide
on their respective merits in the course of the same proceedings and would have
apportioned responsibility either to one of the Parties or a measure of responsibility to both of them. But this would be a matter to be decided by the Court at the
stage of the merits. The alternative suggested, namely, that the counterclaim of
Yugoslavia should be the subject of separate proceedings would not alter the
possible outcomes, as suggested immediately above. It would only spare the Court
and the proceedings the shadow of a mere impression of considerable sensational
effect, that a State alleging the responsibility of genocide against another State is
being faced with the same charge by the alleged wrong-doer, especially when this
determination had already been established not by a Court of law but by world
public opinion.147
Furthermore, the Court has taken the view that international norms giving rise
to obligations erga omnes do not affect by their special status the question of State
consent as the basis of its jurisdiction. Thus, in the East Timor case the Court
rejected the application of Portugal because it could not exercise its jurisdiction as
a result of the operation of the Monetary Gold principle, even though it recognized
that the right of self-determination of peoples that the respondent Australia
allegedly violated gave rise to obligations erga omnes.148 It is submitted that, in a
similar fashion, the requirements for the admissibility of a counterclaim stipulated
in Article 80 (1) of the Rules, namely, the jurisdiction of the Court and direct
connection with the subject-matter of the principal claim, are not subject to the
substantive content of an international norm which entails obligations erga omnes.
With respect to jurisdiction the ruling of the Court in the East Timor case applies.
As for direct connection, it will be seen in the next Chapter, that this represents a
connection both in fact and in law. It may be said at this stage that what is required
under Article 80 (1) of the Rules for connection in fact is that the subject-matter of
both the principal claim and the counterclaim is based on facts of the same nature
that belong to the same factual complex, while connection in law is assessed on the
basis of the legal aim (arising from the same juridical relationship) pursued by
146

See infra Chap. 5.


Cf. Thirlway 1999, 228: The problem facing the Court was not so much one of
procedural law as of political justice. To refuse to hear the counter-claim of Yugoslavia would
undoubtedly mean that the Court would have to examine and give judgment on only part of the
overall picture of what had been happening in the former Yugoslavia
148
The East Timor Case (Portugal v. Australia), ICJ Rep. 1995, 90, at 102, para 29.
147

3.2 Defining Counterclaims

71

both the principal applicant and the counter-claimant. These are requirements of
procedure concerning the admissibility or not of a counterclaim. International
norms giving rise to obligations erga omnes have a totally distinct position and
function. They are primary rules of substantive obligation. Their special denomination entails that their violation is the subject of concern of the international
community as a whole and that the effect of such violation exceeds, in terms of
State responsibility, the strict bilateral relationship between the wrong-doing State
and the direct victim of the wrongful act.149 If, moreover, these rules have the
character of peremptory norms (jus cogens) then States are not allowed to suspend
them or contract out of them by way of treaty.150 Therefore, what one is faced with
is two totally distinct contingencies: the admissibility of counterclaims, on the one
hand, and the function of rules giving rise to obligations owed to the international
community as a whole, on the other.151 An Order of the Court allowing the
admissibility of a counterclaim of the respondent alleging a violation by the
applicant of the same rule giving rise to erga omnes obligations that constitutes the
subject of the principal claim is not an instance of contracting out of this rule by
implication. It merely incorporates in the same proceedings an allegation to be
adjudged at the stage of the merits as the applicants contention.

References
Anzilotti D (1930) La Demande Reconventionelle en Procdure Internationale. J du Droit
International 57:857
Crawford J (2002) The International Law Commissions Articles on State Responsibility.
Cambridge University Press, Cambridge
Genet R (1938) Les Demandes Reconventionelles et la Procdure de la Cour Permenente de
Justice Internationale. 19 Rvue de Droit International et de Lgislation Compare 145
Guyomar G (1983) Commentaire du Rglement de la Cour Internationale de Justice Adopt le 14
Avril 1978. Pedone, Paris
Larchan B, Mirfendereski G (19861987) The Status of Counter-claims in International Law,
with Particular Reference to International Arbitration Involving a Private party and a Foreign
State. 15 Denver J. Intl L. and Poly 11 p 11 n. 1
Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London.
Reprinted in 2002 by The Law Book Exchange Union, New Jersey
Lauterpacht Sir H (1958) The Development of International Law by the International Court,
London. Reprinted in 1982 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 Courts Jurisdiction through Counter-Claims and
Third-Party Intervention. 33 Geo. Wash. Intl L. Rev. 5

149

See ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001),
Articles 41, 48.
150
Article 53 of the Vienna Convention on the Law of Treaties (1969).
151
Thirlway loc. cit. supra n. 144.

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3 Counterclaims before the ICJ: Evolution and Definition

Renteln AD (19861987) Encountering Counter-claims. 15 Denver J. Intl L. and Poly 379,


p 380 n. 2 (reference to Blacks Law Dictionary, 5th ed. 1979, p 315)
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 Jos Maria Ruda. Kluwer, The
Hague, pp 459467
Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Ch. 16
Salerno F (1999) La Demande Reconventionelle dans la Procedure de la Cour Internationale de
Justice. RGDIP 103:329
Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide and Oil
Platforms Decisions. 12 LJIL 197
Thirlway H (2001) The Law and Procedure of the International Court of Justice 19601989, Part
Twelve. 72 BYIL 38
Whiteman M (1968) Digest of International Law, vol 12
Yee S (2006) Article 40, in A. Zimmermann et al. (eds.), The Statute of the International Court of
Justice: A Commentary, Oxford University Press, Oxford p. 907

Chapter 4

Admissibility of Counterclaims

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.1 This is brought about by the overall
effect of the accumulation of the jurisdiction of the Court and, especially, the direct
connection with the subject-matter of the principal claim. It is worth emphasizing
that both requirements must be present and that the existence of one does not
imply the existence of the other. Hudson took the view that once established the
jurisdiction of the Court would seem to extend to any claim directly connected
with the subject of the application.2 The suggestion was that direct connection
would with certainty imply the existence of jurisdiction under the assumption that
the counterclaim must be premised on the same jurisdictional basis as the original
application; however, it does not appear that this is the established view or to be
generally shared by other jurists.3 Moreover, once both requirements are present
the Court is bound to rule that a counterclaim is admissible and does not have the

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, 292293.
3
Anzilotti 1930, 868869, 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, 174175; Thirlway 1999, 203204, 213215; S. Yee 2006, 911.
C. Antonopoulos, Counterclaims before the International Court of Justice,
DOI: 10.1007/978-90-6704-790-6_4,
 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

73

74

4 Admissibility of Counterclaims

discretion to decide the opposite.4 As Thirlway states [T]he question is not one
of the reasonable application of a Rule: if the text lays down certain conditions
for the validity of a procedural step, states are entitled to act on the basis that those
conditions are exhaustive, and that the Court does not preserve a residual discretion to adjust the application of the Rule unless the Rules themselves say so.
5 Finally, if the Court finds that either (as opposed to both, consecutively) of
the two requirements is not met it rejects the presentation of the counterclaim.
Thus, in the Jurisdictional Immunities case the Court found that the counterclaim
of Italy did not fall within its jurisdiction and that it need not address the question
whether that counter-claim is directly connected with the subject-matter of the
claims presented by Germany.6 In the subsequent sections the present author
shall deal with, first, the requirement of jurisdiction and, secondly, the one of
direct connection.

4.1 The Jurisdiction of the Court


4.1.1 The Extent of the Subject-Matter Jurisdiction of the Court
As the Court has ruled in the Corfu Channel case7 the exercise of its jurisdiction is
possible only on the basis of the consent of the parties to the dispute. The question
that arises in relation to counterclaims appears to be twofold:
(a) Does the jurisdiction requirement in Article 80 (1) of the Rules mean that
the basis of consent of the parties with respect to a counterclaim must be
identical with the basis of consent to hear the principal claim? Or,
(b) Does it mean that the Court is empowered to hear a claim by the respondent as
counterclaim, provided that any basis of consent of the parties and direct
connection with the subject-matter of the principal claim is present?
An affirmative answer to question (a) would imply that counterclaims must fall
under the jurisdiction of the Court only to the extent it was delineated between the
original applicant and respondent either ipso jure by virtue of Article 36 (6) of
the Statute of the Court or in a Judgment overruling the Preliminary Objections of
the original respondent. This means, in particular, that the competence to hear the
counterclaim must not only be premised on the consent of both parties but it must

Bosnian Genocide case, ICJ Rep. 1997, 243, at 264 (Declaration of Judge ad hoc Kreca).
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.

4.1 The Jurisdiction of the Court

75

also fall under both the same basis of the jurisdiction of the Court and the precise
subject-matter of the principal claim over and to the extent of which the jurisdiction of the Court has already been established. In other words, once the Court
has found that it has jurisdiction (namely, that the consent of both parties is
present) with respect to a specific matter that forms the object of the dispute, then
the counterclaim must come under the same jurisdictional basis and conform with
the precise matter constituting the object of the principal claim.
On the other hand, an affirmative answer to question (b) would imply that the
coming of the counterclaim under the jurisdiction of the Court may be more
extensive, provided that there is the requisite consent. This in turn gives rise to two
further issues, namely, (b) (i) whether the counterclaim may fall under the same
jurisdictional basis on which the principal claim is premised but its object may be
other than the one originally identified by the Court or (b) (ii) whether it may be
premised on a basis of consent other than the one originally upheld by the Court
provided, in both instances, that the requirement of direct connection is present
and no limitation to the consent of the parties (for instance, a reservation to the
Courts jurisdiction) exists. Thus, it appears that this is a matter of the extent of the
consent given and, in turn, depends on the basis on which this consent is
expressed. Moreover, it raises the question of whether the basis of jurisdiction
upheld by the Court in relation to the principal claim must continue to form the
basis of jurisdiction of the counterclaim and whether a different basis of jurisdiction may not be invoked provided that the requirement of direct connection is
satisfied.
The text of Article 80 (1)if it comes within the jurisdiction of the Court
does not shed much light on the above issues and it prima facie appears to imply
that a counterclaim as an independent claim raised by the respondent must only be
premised on the consent of both parties in order to fall under the jurisdiction of the
Court. Judge Higgins in her separate opinion in the Oil Platforms (Counterclaim)
case appears to have taken this view (see infra). The opinions expressed by authors
vary. Anzilotti8 expressed the view that the argument according to which the Court
must have jurisdiction on the same basis with respect to both principal claim and
counterclaim would be untenable and could only be justified with respect to
establishing a connection between the original claim and the counterclaim; however, the identity of the jurisdictional basis for both the principal claim and the
counterclaim does not automatically guarantee the existence of connection. Genet9
has taken the view that the requirement of jurisdiction aimed at preventing a
counterclaim from extending the jurisdiction of the Court beyond the parameters
delimited by it with respect to the principal claim; at the same time the existence of
connection was not sufficient to remedy the lack of jurisdiction. Rosenne10 has
considered that the requirement of jurisdiction is self-evident[T]he Court can

Anzilotti 1930, 868869.


Genet 1938, 174175.
10
Rosenne 2000, 458.
9

76

4 Admissibility of Counterclaims

only decide claims that come within its jurisdictionand means that the
counterclaim must come within the jurisdiction of the Court as is established for
the particular case. However, he appears to consider that this position applies
only to cases where the jurisdiction of the Court has been established in preliminary objections proceedings and concedes that [H]ow the Court would deal
with a counterclaim when its jurisdiction has not been established formally is an
open question.11 Thirlway12 has suggested that the meaning of the jurisdiction
requirement is that a jurisdictional title must exist such that the claim presented as counter-claim in proceedings already instituted could equally well have
been brought before the Court by way of an application instituting separate proceedings Moreover, Salerno13 has stated that a counterclaim must rest on the
same jurisdictional basis as the principal claim because this is required, first, by
procedural connection between claim and counterclaim, secondly, the protection
of the principal applicant against unpredictable counterclaims and, thirdly, the
respect for the consensual nature of the Courts jurisdiction. Furthermore,
Murphy14 has taken the view that the Court would not be inclined to find jurisdiction on a counterclaim resting on a treaty provision not already before the
Court in the case. Finally, Yee15 maintains by relying on the natural meaning of
the text of Article 80 (1) of the Rules that a counterclaim may rest upon any valid
jurisdictional basis whether or not relied upon by the original claimant.
Although there is prima facie no express requirement that the requisite basis of
consent to hear the counterclaim must be identical to the jurisdictional basis to
adjudge upon the principal claim and the only fundamental restriction imposed
upon a respondent intended to bring any outstanding claims it has against the
principal applicant is the direct connection to the subject matter of the original
claim, it is submitted that jurisdiction in Article 80 (1) of the Rules means the
basis of consent of the parties with respect to the principal claim. The Court has
consistently treated the consent of States to its jurisdiction as a matter of overarching importance.16 Therefore, whenever a dispute is submitted to the Court
either by two States jointly or by one State unilaterally and this submission premises the Courts jurisdiction on a specific basis, it is only within the parameters of

11

Rosenne 2000, 468. See also Rosenne 2001, 85; Rosenne 2006, 1234.
Thirlway 1999, 202.
13
Salerno 1999, 366368.
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.
12

4.1 The Jurisdiction of the Court

77

this basis that the Courts jurisdiction is established. The selection of a particular
basis of the jurisdiction of the Court is a matter of either necessity, for only a
single such basis may exist, or judicial strategy, in case more than one basis exists.
In any event once a particular basis of consent is opted for and upheld by the Court
(whether proprio motu under Article 36 (6) of the Statute or as a result of preliminary objections proceedings) it defines the parameters of the Courts jurisdiction. To hold otherwise would mean that a respondent could invoke any other
basis of the jurisdiction of the Court and bring as counterclaim in the course of the
same (namely, the original or principal) proceedings a claim it has against
the applicant. Even though this contingency may in a strict sense conform to the
rationale of counterclaims it appears to be contrary to their designation as an
incidental matter to proceedings already pending. To hold otherwise would recognize to a counterclaimant respondent a right that the principal applicant does not
possess: namely, to introduce additional grounds of the jurisdiction of the Court at
any stage of the proceedings. Although, the Court has admitted this contingency on
the part of the Applicant State, it appears from its jurisprudence that it would be
allowed at an early stage of the proceedings and, even in this case, it would be far
from certain that the Court would uphold it. In the Nicaragua (Preliminary
Objections) case the Court upheld the introduction as an additional basis of its
jurisdiction of the bilateral Treaty of Friendship, Commerce and Navigation
(1956) by Nicaragua in its Memorial:
The Court considers that the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed
upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction
before proceeding to examine the merits of a case, it is certainly desirable that the legal
grounds upon which the jurisdiction of the Court is said to be based should be indicated at
an early stage in the proceedings, and Article 38 of the Rules therefore provides for these
to be specified as far as possible in the application. An additional ground of jurisdiction
may however be brought to the Courts attention later, and the Court may take it into
account provided the Applicant makes it clear that it intends to proceed upon that basis,
and provided also that the result is not to transform the dispute brought before the Court
by the application into another dispute which different in character 17

Moreover, in the Bosnian Genocide (Provisional Measures) case the Court


ruled that, on the one hand, an applicant cannot invoke additional grounds of
jurisdiction by only reserving a right to amend or supplement its application, but
on the other, an applicant could introduce additional grounds of jurisdiction on the
basis of the requirements articulated in the Nicaragua (Preliminary Objections)
case; still:
the Court thus concludes that, for the purposes of a request for indication of provisional
measures, it should therefore not exclude a priori such additional bases of jurisdiction from
consideration, but it should consider whether the bases relied upon may, in all the

17

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. USA) (Preliminary Objections), ICJ Rep. 1984, 392, 426427, para 80. (emphasis added).

78

4 Admissibility of Counterclaims
circumstances, including the considerations stated in the decision quoted above [the
Nicaragua case] afford a basis on which the jurisdiction of the Court to entertain the
Application might prima facie be established 18

By contrast, in the Legality of the Use of Force (Yugoslavia v. Belgium) and the
Legality of the Use of Force (Yugoslavia v. The Netherlands) cases the Court
adopted the opposite position. In these cases the plaintiff (Yugoslavia) invoked in
its application as bases of the jurisdiction of the Court the Optional Clause (Article
36 (2) ICJ Statute) and Article IX of the Genocide Convention (1948). However,
during the second round of the oral hearings on its request for indication of
provisional measures it introduced as additional bases of jurisdiction Article 4 of
the Convention of Conciliation, Judicial Settlement and Arbitration (1930)
between the Kingdom of Yugoslavia and Belgium, and Article 4 of the Convention
of Conciliation, Judicial Settlement and Arbitration (1931) between the Kingdom
of Yugoslavia and The Netherlands.19 In its Orders the Court declined to admit
these additional grounds of its jurisdiction:
the invocation by a party of a new basis of jurisdiction in the second round of oral
argument on a request for the indication of provisional measures has never before occurred
in the Courts practice; such action at this late stage, when it is not accepted by the other
party, seriously jeopardizes the principle of procedural fairness and sound administration of
justice; in consequence the Court cannot, for the purpose of deciding whether it may or it
may not indicate provisional measures in the present case, take into consideration the new
title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999 20

Thus, it becomes clear that the principles of equality of the parties, procedural
fairness and sound administration of justice make it highly unlikely that a
counterclaimant respondent would be allowed to rely on a jurisdictional basis
different from the one relied on by the principal applicant, unless the applicant
itself introduces new grounds of jurisdiction that are upheld by the Court or the
principal applicant does not object to the invocation of a different basis of jurisdiction by the counterclaimant party. To admit this right as a general proposition
might widen the jurisdiction beyond what the Court has determined its scope to be
either in a Preliminary Objections judgment or by applying Article 36 (6) of the
Statute21; it would deprive in effect the jurisdiction of the Court of its essentially

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, 556557, para 44.
21
Cf. Rosenne supra n. 10; Yee 2006, 911912: 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.

4.1 The Jurisdiction of the Court

79

consensual nature; it would for all practical purposes supplant the original proceedings with new ones because the principal applicant would have the right to
raise preliminary objections to the jurisdiction of the counterclaim brought on a
different jurisdictional basis; and it may alter the character of the original proceedings into something different from what initially pursued, thus rendering
dispute settlement before the International Court of Justice a highly unpredictable
endeavor. This is the view adopted by the Court in the Bosnian Genocide
(Counter-Claims) case:
Whereas the Respondent cannot use a counter-claim as a means of referring to an
international court claims which exceed the limits of its jurisdiction as recognized by the
parties 22

What is more, as long as the Court has established its jurisdiction it becomes
redundant for a respondent State to seek another jurisdictional basis on which to
premise its counterclaim. This is supported by the practice of counterclaimant
States. They have consistently relied on the jurisdictional basis of the principal
claim, while the principal applicant States, with the exceptions of Iran in the Oil
Platforms case and Germany in the Jurisdictional Immunities case, have disputed
only the existence of a direct connection with the subject-matter of the dispute
rather than jurisdiction.
The real issue is whether within the parameters of the same jurisdictional basis
a respondent or the other litigant (in case of a special agreement) may present a
counterclaim that may exceed the precise boundaries of the subject-matter of the
dispute as they have been determined by the Court when it established its jurisdiction. It is submitted that this issue must be discussed by reference to the modes
by which consent to the jurisdiction of the Court is expressed and to its practice
with respect to the requirement of jurisdiction as it concerns counterclaims. It may
be stated at the outset that the practice of the Court in this respect is very limited23
for, with the exception of the Oil Platforms and Jurisdictional Immunities cases, its
jurisdiction to hear a counterclaim has not been disputed by the principal applicant.
The present writer proposes to inquire into jurisdiction as a requirement of
admissibility to hear a counterclaim by reference to the bases of expressing consent to the jurisdiction of the Court.
Moreover, as the practice of the Court indicates, notably in the Oil Platforms
case, the principal applicants objections to the jurisdiction of the Court to consider
a counterclaim presented by the respondent are not treated as preliminary

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)) (CounterClaims), Order of 17 December 1997, ICJ Rep. 1997, 243, 257, para 31.
23
As Judge Canado 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) (CounterClaim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/
files/143/16027.pdf, Judge Canado Trindade (diss. op.), para 28.

80

4 Admissibility of Counterclaims

objections to be ruled upon at the stage of the counterclaims incidental proceedings, if jurisdiction has been established by the Court in a Preliminary Objections
Judgment antedating the counterclaims proceedings. Rather, they are treated as
objections to the jurisdiction not of a preliminary character and are joined to the
Merits. This contingency raises the question of the nature of the requirement of
jurisdiction in Article 80 (1) of the Rules: Must the Court satisfy itself that it has
prima facie jurisdiction to allow the counterclaim in a manner analogous to the
Provisional Measures proceedings? Or is it more than this, namely, that it must
be essentially satisfied that it does have jurisdiction, even though it adopts the
extraordinary step of doing this with finality at the stage of the Merits? By contrast,
the position adopted by the Court in the Jurisdictional Immunities case indicates
that in cases where an objection to the jurisdiction of the Court is raised for the first
time with respect to a counterclaim then the Court treats it as a preliminary
objection and disposes of it at the stage of counterclaims. Moreover, what is
interesting is that the Court is called upon to determine its own jurisdiction not
upon the initiative of the original respondent but the principal applicant a propos
the counterclaim of the respondent. The end result of this reverse process remains,
however, the same for the jurisdiction of the Court is a matter identical with
respect to both claim and counterclaim. The present writer shall discuss this in the
final sub-section on the requirement of jurisdiction.

4.1.2 Jurisdiction on Counterclaims from the Point View


of the Bases of Expressing Consent
The consent of States to the jurisdiction of the Court is established on the basis of
any of the following grounds:
(1) A special agreement or compromis (Article 36 (1) ICJ Statute)
(2) A compromissory clause in a treaty or agreement in force (Articles 36 (1) and
37 ICJ Statute)
(3) A declaration under the Optional Clause (Article 36 (2) and 36 (5) ICJ Statute)
(4) The principle of forum prorogatum
4.1.2.1 Special Agreement or Compromis
Two States may refer a specific dispute to the Court by concluding an agreement
which most often takes the form of a treaty. In it they agree to have their dispute
settled by the Court and they determine (in the sense of outlining) the subject-matter
of the dispute. This may include the entirety or part of the dispute between those
two States. The advantage of submitting a dispute to the Court by way of special
agreement is precisely that the interested States may draft the agreement in such a
way as to formulate the subject-matter of the dispute to include issues that they
consider not too much affecting vital interests or do not arouse the sensitivities of

4.1 The Jurisdiction of the Court

81

domestic constituencies.24 Equally, if they wish an entire dispute to be settled with


finality by the Court then they expressly state their intention in the agreement.
It has been a matter of contention whether a counterclaim may be presented in
the case of disputes submitted to the Court by way of special agreement. Judge
Anzilotti has maintained that in cases submitted to the Court by way of special
agreement there was no question of counter-claims but of reciprocal claims.25 This
position appears to assume that every special agreement concluded between two
parties to a dispute delineates with rigid precision these parties respective claims
and by this feat it renders inadmissible as a matter of principle any further claim
not included in the agreement.26 Indeed, the above view has influenced the revision of the Rules of the Permanent Court in 1936 and was maintained in
the Rules of the present Court until 1978 in that counterclaims were allowed to be
presented only in the event a dispute was submitted to the Court by way of
application.
This point of view is cogent, but it is submitted that it conveys only part of the
picture. First, as a matter of principle, it is not excluded by the terms of Article 80
(1)27 and, at any event, this is a matter that depends on the terms of the special
agreement whether a counterclaim may be raised by either of the parties.28 For it is
not inconceivable that such an agreement may be formulated in broader terms if
this reflects the will of the parties to have a multi-faceted dispute settled with
finality by the Court. Thus, State A and State B conclude an agreement to have a
dispute concerning the delimitation of the continental shelf between them to the
Court. The area under delimitation is defined as the area extending beyond the
outer limit of each partys territorial sea. Both State A and B have opposite coasts
with the coast of State B fringed by a number of islands belonging as a matter of
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, 810.
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 counterclaims ; 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 Courts mainline jurisdiction
28
Cf. Rosenne 2000, 475; Rosenne 2007, pp. 291292. 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.

82

4 Admissibility of Counterclaims

territorial sovereignty to State A by virtue of a treaty of peace concluded at the


beginning of the twentieth century and numerous rocks and islets the territorial
status of which has not been determined by that treaty. Is it not possible that State
B could present a counterclaim in which it asserts territorial sovereignty over these
rocks and islets and states that they constitute the baseline of its territorial sea? The
formulation of the dispute to be settled by the Court in the special agreement is
such that it does not appear to exclude a priori the presentation of this counterclaim, for if the outer limit of the territorial sea of one of the parties is contested
then no delimitation of the continental shelf between them may be effected.
A fortiori this is the case when the territorial status of these rocks and islets has
been the object of a dispute between States A and B for a considerable period of
time. Thus, the consent in the manner in which it was expressed with respect to the
delimitation of the continental shelf between States A and B does not exclude the
determination of title to territorial sovereignty if this a conditio sine qua non for
addressing the subject-matter of the dispute.
Secondly, the conclusion of a special agreement does not per se exclude the
submission of a particular dispute to the Court by way of unilateral application. This
is the case if the special agreement in the form of bilateral treaty or another informal
ground of expressing consent (such as an exchange of notes, a joint communiqu, or
the minutes of a meeting between the parties) either expressly provides or, at least,
does not expressly exclude the unilateral recourse to the Court by either of the
parties. Thus, in the Asylum case the consent to refer the dispute between Colombia
and Peru to the Court was premised on a special agreement between the two States,
the Act of Lima of 31 August 1949 [Article 1].29 Article 2 of the Act of Lima
provided that the parties, having been unable to agree on the terms of referring the
dispute to the Court jointly, they agreed that either of them may institute proceedings by way of application.30 Thus, it is important to establish both that the
special agreement constitutes an expression of consent to the jurisdiction of the
Court and the manner by which the dispute is submitted to the Court. In the Aegean
Sea Continental Shelf case Greece instituted proceedings against Turkey by way of
unilateral application relying in part on a joint communiqu issued after a meeting
between the Prime Ministers of both States in Brussels on May 31st, 1975. The
crucial passage in the communiqu read: They [the two Prime Ministers] decided
that those problems [between the two countries] should be resolve peacefully by
means of negotiations and as regards the continental shelf of the Aegean Sea by the
International Court in The Hague. Greece argued that this passage constituted an
autonomous basis of consent to the jurisdiction of the Court and established the
obligation of the parties to conclude an agreement to refer the dispute to the Court
jointly, failing which either of the parties had the right to submit the dispute to the
Court by way of unilateral application. By contrast, Turkey asserted that the joint
communiqu did not constitute a basis of consent to the jurisdiction of the Court and

29
30

The Asylum case (Colombia/Peru), ICJ Rep. 1950, 266, at 268. Cf. Rosenne 2001 supra n. 27.
Ibid.

4.1 The Jurisdiction of the Court

83

in any event did not introduce an obligation to have recourse to the Court without a
compromis or gave the right of unilateral application. The Court interpreted the text
of the Brussels communiqu, evaluated the subsequent practice of the parties and
ruled that the joint communiqu was merely an agreement to agree the terms of a
compromis to refer the dispute to the Court and therefore not a basis of consent to its
jurisdiction.31 Moreover, in the Qatar-Bahrain case the issue that the Court faced
was whether the two parties had concluded an agreement that allowed either of
them to institute proceedings against the other unilaterally. The consent to the
jurisdiction of the Court as such was not contested. The Court interpreted the
minutes of a tripartite meeting between Qatar, Bahrain, and Saudi Arabia in Doha in
December 1990 (the Doha Minutes) and ruled on the basis of Article 31 of the
Vienna Convention on the Law of Treaties (the ordinary meaning of the terms) that
either of the parties had a right to refer the dispute to the Court unilaterally.32 In the
first phase of the Jurisdiction and Admissibility stage of the dispute and after having
been established by the Court that there had been an agreement between the parties
to submit the dispute to the Court, Bahrain argued that Qatar submitted only part of
the overall dispute that both States had agreed to refer to the Court for settlement;
Qatar stated that this alleged irregularity could be amended if Bahrain either made a
separate application or presented a counterclaim.33 The Court took note of this
argument and did not in principle overrule it; it, however, ruled that on the basis of
the agreement reached the dispute had to be submitted to it in its entirety and it
offered the parties the opportunity to submit the whole of the dispute.34
Thirdly, Judge Anzilottis position appears to be heavily influenced by the
institution of ad hoc arbitration between States, where the entire process has been
under the close control of the parties to the dispute. Thus, it introduces the
expectation that the dispute to be settled by an arbitral tribunal or a Claims
Commission is to be so strictly and precisely delineated that the ultimate result is
indeed a set of reciprocal claims excluding the possibility of presenting any
counterclaims. However, as has been seen supra the raising of counterclaims in the
context of ad hoc arbitration may not be ruled out in all instances.35 Moreover, the
treatment of a special agreement concerning arbitration as identical to a special
agreement to submit a dispute to the International Court of Justice appears to fail
to take into consideration the institutional character of the Court and its independent power to be the ultimate arbiter of its own jurisdiction in accordance with
Article 36 (6) of the Statute. For whatever the terms of a special agreement are and

31
The Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction and Admissibility),
ICJ Rep. 1978, 3 at 3744, paras 94108.
32
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction
and Admissibility), ICJ Rep. 1995, 6, at 1721, paras 3240.
33
ICJ Rep. 1994, 112, at 124, para 36.
34
Id., 124125, paras 3738.
35
See supra Chap. 2.

84

4 Admissibility of Counterclaims

although they may be very strict, they are not informed by an a priori element of
absolute control over an institutional body as the Court.

4.1.2.2 Compromissory Clause in a Treaty in Force


A compromissory clause is a provision in a treaty or agreement in force by virtue
of which any dispute arising between two contracting parties concerning the
application or interpretation of the treaty shall be submitted to the International
Court of Justice. A contracting party may restrict the application of the compromissory clause or exclude it entirely by making a reservation to it. For instance,
in the Legality of the Use of Force (Yugoslavia v. Spain) case the Court found that
Spain had made a reservation to Article IX of the Genocide Convention (1948)
the compromissory clauseby virtue of which it excluded its application in toto.36
Moreover, in the Legality of the Use of Force (Yugoslavia v. USA) case the Court
found that the United States had made a reservation to Article IX of the same
Convention which made the application of the compromissory clause conditional
upon the specific consent of the United States in each case.37 Furthermore, a
compromissory clause constitutes an independent basis of expressing consent to
the Courts jurisdiction even though it may be phrased identically with the
Optional Clause (Article 36 (2) of the Statute. In this case if both litigant States to
a dispute are contracting parties to both the treaty and the Optional Clause and the
declaration of either of them under the latter contains reservations to the jurisdiction of the Court whereas there are no reservations to the compromissory
clause, the unqualified acceptance of the jurisdiction of the Court subsists and is
not affected by any reservations under the Optional Clause. In the Nicaragua v.
Honduras (Preliminary Objections) case Nicaragua established the jurisdiction of
the Court by relying on Article XXXI of the Pact of Bogota by virtue of which the
High Contracting Parties recognized in accordance to Article 36 (2) of the ICJ
Statute in relation to any other American State the jurisdiction of the Court ipso
facto and without the need for any special agreement for as long as the pact
remained in force. Honduras had accepted the jurisdiction of the Court by virtue of
a declaration under Article 36 (2) of the Statute of the Court (the Optional Clause)
that included reservations to the jurisdiction of the Court.38 Honduras argued that
the scope of the acceptance of the jurisdiction of the Court by a State party under
Article XXXI of the Pact of Bogota which at the same time had made a declaration
under the Optional Clause had to be evaluated by reference to scope of the
acceptance of the Courts jurisdiction under the Optional Clause. The Court did
36

Legality of the Use of Force Case (Yugoslavia v. Spain) (Provisional Measures), ICJ Rep.
1999, 761, at 773, paras 2930.
37
Legality of the Use of Force Case (Yugoslavia v. USA) (Provisional Measures), ICJ Rep.
1999, 961, at 923, paras 2125.
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.

4.1 The Jurisdiction of the Court

85

not accept the Honduran contention and ruled that Article XXXI of the Pact
constituted an independent basis of expressing consent to the jurisdiction of the
Court by virtue of Article 36 (1) of the Statute of the Court and was not in any way
conditioned or affected by the terms of the declarations of the American States that
existed alongside this compromissory clause.39
The issue of presenting counterclaims in disputes concerning the application or
the interpretation of a treaty in the event the jurisdiction of the Court is premised
on the compromissory clause of the treaty arose in the Oil Platforms case and in
the Jurisdictional Immunities case. Moreover, the position adopted by the Court in
Oil Platforms on the US counterclaim and the objections to this position articulated by Judge Higgins in her separate opinion are relative to the question of the
jurisdiction of the Court in general under any of the bases expressing consent.
Iran instituted proceedings against the USA on 2 November 1992 on the basis
of a dispute arising from the attack and destruction by the US Navy of three oil
platforms operated for commercial purposes by the National Iranian Oil Company
during the Iran-Iraq war in October 1987 and April 1988. Iran asserted that the US
acts violated the bilateral Treaty of Amity, Economic Relations and Consular
Rights of 1955 between the USA and Iran and in its application asserted as basis of
the jurisdiction of the Court Article XXI (2) of the Treaty:
Any dispute between the High Contracting Parties as to the interpretation or application of
the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the
International Court of Justice, unless the High Contracting Parties agree to settlement by
some other pacific means.

The USA raised a preliminary objection to the jurisdiction of the Court which
was rejected in the Judgment of 12 December 1996 in which the Court ruled that:
it has jurisdiction on the basis of Article XXI, paragraph 2, of the Treaty of 1955,
to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1,
of that Treaty 40

In 1997 the USA filed its Counter-Memorial that included a counterclaim


against Iran by virtue of which the USA requested the Court to adjudge and
declare that: first, in attacking vessels, laying mines in the Gulf and otherwise
engaging in military actions in 19871988 that were dangerous and detrimental to
maritime commerce, the Islamic Republic of Iran breached its obligations to the
United States under Article X of the 1955 Treaty and, secondly, Iran was liable to
reparation to the USA for breach of the 1955 Treaty. At the same time the United
States informed the Court that its request to Iran to settle the claim for reparation
by negotiations was countered by an invitation on the part of Iran to enter into
negotiations to settle a broader range of subjects that the United States had

39

Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras)


(Jurisdiction and Admissibility), ICJ Rep. 1988, 69, at 8288, paras 2941.
40
Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 820, 821, para 53
and operative para (2) of the dispositif.

86

4 Admissibility of Counterclaims

rejected Irans proposal and therefore the counterclaim could not be settled
through negotiations. In this manner the United States alluded to the compromissory clause of Article XXI (2) of the 1955 Treaty in order to establish the
jurisdiction of the Court to hear the counterclaim. Moreover, the United States
appears to have taken the view that the issue of jurisdiction was beyond any doubt
for in a communication to the Court on 20 October 1997 it stated that the submissions of the parties to be considered by the Court were to be limited to the
connection of the counterclaim to the principal claim in accordance with Article 80
(3) of the Rules. Iran objected to the view expressed by the United States and
counter-suggested that it was open to it to dispute that the US counterclaim met the
conditions stipulated in Article 80 (1) of the Rules. In particular, Iran raised
objections to the US counterclaim coming under the jurisdiction of the Court.
First, Iran argued that the US counterclaim was of a sweeping and general
character because it asserted violations of Article X (in particular, paragraphs
25) and was not restricted to Article X (1) of the 1955 Treaty which the Court
ruled in its Preliminary Objections Judgment of 1996 that it constituted the subject-matter of the dispute. More specifically, Iran asserted that the United States
had attempted to widen the dispute to provisions of the 1955 Treaty that were not
the subject of the main proceedings and concerned the general conduct of Iran
during the last 2 years of the Iran-Iraq war. Secondly, Iran argued that the seven
attacks that were stated in the US counterclaim were not committed against US but
third State vessels and therefore fell outside the scope of the 1955 Treaty.
The United States retorted that the objections of Iran to the jurisdiction of the
Court aiming at confining the US counterclaim within the frame of Article X (1) of
the 1955 Treaty were a matter to be eventually decided by the Court at a later stage
(the Merits stage) when the Court would decide on the interpretation and application of this provision. Moreover, the United States argued that Article X,
paragraphs 25 as the subject-matter of its counterclaim was pertinent even though
these provisions were not limited to vessels involved in trade between the United
States and Iran. Furthermore, the United States asserted that the exclusion of
warships in paragraph 6 of Article X was not applicable to paragraph 5 of the same
Article and, therefore, the attacks against US warships escorting US commercial
vessels had the effect of endangering and denying access to those commercial
vessels as well.
In its Order the Court ruled
the counter-claim presented by the United states alleges attacks on shipping, the laying
of mines, and other military actions said to be dangerous and detrimental to maritime
commerce; such facts are capable of falling within the scope of Article X, paragraph 1,
of the 1955 Treaty as interpreted by the Court; and the Court has jurisdiction to entertain
the United States counter-claim in so far as the facts alleged may have prejudiced the
freedoms guaranteed by Article X, paragraph 1; 41

41

Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998,190,
204, para 36.

4.1 The Jurisdiction of the Court

87

The interpretation given by the Court to Article X (1) in its 1996 Judgment on
Jurisdiction was that, first, the term commerce meant commercial activities in
general and, secondly, that the above provision protected freedom of commerce.42
The above ruling of the Court was criticized by Judge Higgins in her Separate
Opinion to the Order. Judge Higgins began by making an observation of a general
character concerning the requirement that a counterclaim must come within the
jurisdiction of the Court:
It may thus be that while Article X, paragraph 1, is the sole basis of jurisdiction
identified by the Court, paragraphs 26 still have relevance to the task of ascertaining the
freedoms guaranteed under paragraph 1
the inarticulate assumption that the jurisdictional basis established for a claim necessarily is the only jurisdictional basis for, and sets the limits to, a counter-claim, is open
to challenge.
In both civil and common law domestic systems, as in the Rules of the Court, a
defendant seeking to bring a counter-claim must show that the Court has jurisdiction to
pronounce upon them. But it is not essential that the basis of jurisdiction in the claim and
in the counter-claim be identical. It is sufficient that there is jurisdiction. (Indeed, were it
otherwise, counter-claims in, for example, tort could never be brought, as they routinely
are, to actions initiated in contract
There is nothing in the Rules or practice of the Court to suggest that the very identical
jurisdictional nexus must be established by a counter-claimant. The travaux prparatoires
to the various formulations of what is now Article 80 of the Rules of the Court contain no
suggestion whatever that this was thought of as a requirement
Attention was focused on the one hand on the required connection and on the other
on certain matters relating to jurisdiction, notably (in 1922) whether counter-claims were
limited to compulsory jurisdiction cases and whether objections to counter-claim jurisdiction would be allowed. At no stage was it even proposed, much less accepted, that the
jurisdictional basis for the claim and the counter-claim must be identical.
Nor does the wording of Article 80, paragraph 1, suggest this. It requires that a counterclaim comes within the jurisdiction of the Court, not that it was within the jurisdiction
established by the Court in respect of the claims of the applicant.
Of course, the very requirement of a direct connection with the subject-matter of the
claim is likely to bring a counter-claimant into the same general jurisdictional area, i.e.,
the same treaty may well form the basis of the claimed jurisdiction for the bringing of a
counter-claim. But that is all.
The view of the Committee for the Revision of the Rules, when deciding to retain the
phrase and that it comes within the jurisdiction of the Court from the old Rule, was that
the phrase meant that a counter-claim could not introduce a matter which the Court would
not have had jurisdiction to deal with had it been the subject of an ordinary application to
the Court.
And that remains the position under Article 80 of the present Rules of Court The
correct and necessary procedure in the present case would have been for the Court to
enquire whether it would have had jurisdiction to deal with the claims of the United States,

42

Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 819, paras 4950.

88

4 Admissibility of Counterclaims
as they related to Article X, paragraphs 25, had they been the subject of an ordinary
application to the Court 43

The above passage from Judge Higgins separate opinion may reasonably
convey the message that a counterclaimant respondent may invoke a jurisdictional
basis for its counterclaim, different from the one invoked by the principal claimant
and upheld by the Court. However, this is not the case; for what Judge Higgins
really suggests later in her opinion is that a counterclaimant may rely on the same
jurisdictional basis as the applicant but brings claims that do not fall exactly under
the same subject-matter of the principal claim as specified by the Court. In other
words, the parameters of a basis of expressing consent to the jurisdiction of the
Court may be wide or flexible enough to allow a counterclaimant State the possibility to bring on the same jurisdictional basis a claim that does not fall under
exactly the same subject-matter; but this is a question that depends on the specific
jurisdictional basis invoked by the principal applicant. The relevant passages read:
Implicit in the Courts unexplained reliance on Article X, paragraph 1, as the apparent
sole basis of jurisdiction is the thought that a counter-claim can only arise out of an initial
claim, and therefore cannot be on a wider jurisdiction basis than the initial claim. But it is
not a question of a counter-claimant being able to expand the jurisdiction initially
established by the Court. The Court first establishes its jurisdiction by reference to the
facts as alleged by the claimant. But that does not mean to say that it may not have
jurisdiction in relation to allegations brought by the defendant under other clauses of the
same treaty.
What matters in a counter-claim is the jurisdiction mutually recognized by the parties
under the Treatynot the jurisdiction established by the Court in respect of particular
facts initially alleged by the claimant
If an initial claim could have been brought [by the United States] claiming breaches
of these provisions [Art. X, paragpaphs 25] that cannot be taken away by virtue of the
fact that the Court has already established its jurisdiction, in respect of another provision
(Art. X, para 1) in respect of claims articulated by Iran.
This would in effect revise treaty jurisdiction as recognized by the parties through a
judicial finding on jurisdiction relating to an initial claimant under a particular provision.
If, arguendo, the treaty provisions of Article X, paragraphs 25, would have founded
jurisdiction in an initial claim the presumably the United States could still bring a claim de
novo even if it is not allowed to do so as a counter-claim under the Courts Order. Such a
result is hardly consistent with the stated purpose of counter-claims, namely, convenience
of court management. It underlines that what is required under Article 80, paragraph 1, of
the Rules is that a counter-claim comes within the jurisdiction of the Court by reference
to the normal jurisdictional principles rather than by reference to the particular basis of
jurisdiction that the initial claimant happens to have relied on in relation to its own
particular facts 44

43

Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998, 190,
pp 218219 (sep. op. Judge R. Higgins) [emphasis in the original]; contra id., 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 counterclaim must fall within the jurisdiction of the court before which the original claim is pending.
44
Id., 220221.

4.1 The Jurisdiction of the Court

89

It is submitted that the points raised by Judge Higgins constitute the better view
on the issue and may be applied under all bases of expressing consent to the
Courts jurisdiction. Thus, if a dispute between two States is brought before
the International Court by establishing consent to the jurisdiction of the Court on
the basis of a treaty provision and the dispute falls under the terms of the treaty,
there is nothing to prevent the respondent State from raising a counterclaim
alleging a violation by the principal applicant of a provision other than the one for
the breach of which the latter instituted proceedings before the Court. This is
supported by the practice of the Permanent Court. In the Chorzw Factory case the
PCIJ ruled that the counterclaim of Poland which was premised on Article 256 of
the Versailles Peace Treaty was admissible although the principal claim of Germany was submitted to the Court under the Geneva Convention on Upper Silesia,
the compromissory clause in which constituted the basis of the Courts jurisdiction. The decision of the Permanent Court on Polands counterclaim may lead to
the conclusion that if a counterclaim is admissible even though it is premised on a
treaty other than the one constituting the basis of the subject-matter jurisdiction of
the Court, then it may be possible, as a matter of principle, to present a counterclaim under other provisions of the same treaty.
The crucial factor in this instance is not a consent to the jurisdiction of the
Court but the existence of direct connection between the counterclaim and the
subject-matter of the principal claim. The jurisdiction of the Court already exists
by virtue of the compromissory clause that concerns any dispute with respect to the
application and interpretation of the treaty. To restrict the jurisdictional basis
notwithstanding the requisite consent already adhered to only to the precise provision of the treaty of which the applicant alleges a violation by the respondent
subverts the entire rationale of the consensual basis of the Courts jurisdiction on
the basis of a compromissory clause by subjecting it to an unwarranted conditioning process by the requirement of direct connection. It means in effect that
for the purposes of a particular dispute concerning the application or interpretation
of a treaty the compromissory clause allows a contracting party to have recourse to
the Court about a dispute with another party to the treaty and subsequently to
succeed in limiting the effect of the compromissory clause only to the particular
facts it alleges that gave rise to the dispute. This would in turn result in the
preclusion of the respondent contracting State from bringing a counterclaim under
the same compromissory clause about a dispute premised on a different set of facts.
The outcome in this instance is that the particular facts constituting the basis of the
principal claim and restricting the subject-matter jurisdiction of the Court to a
particular provision of the treaty are elevated to be the determining factor of direct
connection which in turn supersedes jurisdiction as a requirement for the admissibility of counterclaims. However, both jurisdiction and direct connection are
of equal value and there is nothing in Article 80 (1) to suggest a hierarchical
relation between them.
Moreover, the implied restriction on a respondent to present counterclaims
beyond the subject-matter of the dispute covered by the jurisdiction of the Court as
determined in a particular case amounts to a deprivation of right, namely, the right

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4 Admissibility of Counterclaims

of a contracting party to a treaty to seize the Court and seek judgment against
another contracting party for a breach of a treaty or an adverse interpretation of its
provisions and such a deprivation must not be presumed as being immediately and
absolutely effective. Indeed, in the context of declarations under the Optional
Clause, the Court has in the Cameroon v. Nigeria (Preliminary Objections) case
ruled that the termination of a declaration could not have immediate effect because
the other States accepting the Courts jurisdiction under the same basis would be
deprived of a vested right.45 In the context of compromissory clauses, the
restriction of the jurisdiction of the Court concerning the admissibility of a
counterclaim to the jurisdiction upheld in relation to the facts alleged by the
principal applicant would render the entire faculty of counterclaims devoid of
much, if any, of its significance: The respondent State would not be allowed to
present a counterclaim alleging the violation of another provision of the same
treaty while it would have the right to submit the same dispute to the Court by way
of a separate application.
At any event, in Oil Platforms, the Court has adopted a very restrictive
approach that appears to have had an impact on the attitude of the counterclaimant
respondent. At the Merits stage of Oil Platforms the Court has dealt with the
preliminary objections of Iran to the jurisdiction and admissibility of the US
counterclaim. The third preliminary objection of Iran contended that the United
States counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty,
the only text in respect of which the Court has jurisdiction, and that the Court
cannot therefore uphold any submissions falling outside the terms of paragraph 1
of that Article.46 The Court rejected this objection because in its final submissions the United States substantially narrowed the basis of its counter-claim
restricting it to Article X (1) of the 1955 Treaty and, consequently, bringing it in
line with the Courts rulings both in the 1996 Preliminary Objections Judgment
and the 1998 Counterclaims Order.47 At the same time there is no reason to
withhold criticism from what at present constitutes no more than an indication, as
opposed to consistent practice, of the attitude of the Court with respect to jurisdiction. For, in addition, the Court is prepared to adopt the opposite approach in
relation to direct connection. In the Congo v. Uganda (Merits) case it has been
dealt with an objection to admissibility raised by the DRC to Ugandas second
counterclaim concerning the attacks on the Embassy of Uganda in the Congolese
capital. The DRC maintained that the counterclaim failed to meet the direct
connection criterion because Uganda attempted to enlarge the subject-matter of
the dispute beyond the context of the use of force by invoking for the first time the

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., 211212, para 111.

4.1 The Jurisdiction of the Court

91

1961 Vienna Convention on Diplomatic Relations in its Rejoinder.48 The Court


rejected the objection and ruled that [A]s the jurisprudence of the Court reflects,
counter-claims do not have to rely on identical instruments to meet the connection
test of Article 80.49
Finally, in the Jurisdictional Immunities case the Court appears to move away
from the very strict position adopted in Oil Platforms. In Jurisdictional Immunities
the Court has dealt with its jurisdiction for the first time as a result of the objection
of Germany with respect to the counterclaim of Italy. The Court rejected this
counterclaim by focusing on the terms of the compromissory clause and its temporal limitation (Articles 1 and 27 (a) of the 1957 European Convention) rather
than the precise parameters of the subject-matter of the dispute formulated by
Germany in its unilateral application. Thus, it is submitted that by implication the
Court appears to indicate that, absent a prior determination of its jurisdiction in a
Preliminary Objections Judgment, this is to be evaluated on the basis of the
parameters of consent in the compromissory clause and not of the coincidence of
fact in the principal claim and counterclaim.

4.1.2.3 The Optional Clause


The Optional Clause gives the right to a State to accept the compulsory jurisdiction
of the Court without the requirement of a special or other agreement in relation to
any other State accepting the same obligation and on the basis of reciprocity.50 The
acceptance of the jurisdiction of the Court on this basis is realized by way of a
declaration which is communicated to the Secretary General of the United Nations
by the State making it. This declaration is subsequently communicated by the
Secretary General to the other member-States of the United Nations and it receives
wide publicity. In the Right of Passage case the Court ruled that a declaration
under the Optional Clause establishes a contractual bond which takes effect
immediately upon the communication of the declaration to the UN Secretary
General and not the notification to the respondent State.51 By contrast, as the Court
ruled in the Nicaragua (Preliminary Objections) case and the Cameroon v. Nigeria
(Preliminary Objections) case, the termination of the declaration does not have
immediate effect and the lapse of reasonable time is required for this to happen.
Immediate effect of the termination of a declaration is possible only if it is
expressly reserved by the terms of the declaration. The reason for this is that by
withdrawing its declaration under the Optional Clause a State deprives the rest of

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 146147.

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4 Admissibility of Counterclaims

the parties to the Clause of a vested right to have recourse to the Court in order to
have a dispute settled.52 Moreover, the acceptance of the jurisdiction of the Court
under the Optional Clause may be either unqualified, namely, for every type of
dispute, or qualified, that is for specific categories of disputes excluding other
classes of disputes by making reservations ratione personae, ratione temporis, and
ratione materiae.53 An example of an unqualified acceptance of the jurisdiction of
the Court under the Optional Clause is the declaration of Haiti of 4 October 1921:
On behalf of the Republic of Haiti, I recognize the jurisdiction of the Permanent Court of
International Justice as compulsory.54

An example of a qualified declaration accepting the jurisdiction of the Court


under the same basis is that of India which contains no less than twelve reservations excluding wide categories of disputes from the Courts jurisdiction.55 The
reservations to the jurisdiction of the Court are opposable to the other party on the
basis of reciprocity and this means that the jurisdiction of the Court is established
on the basis of the narrower of the two declarations accepting its jurisdiction.
The Optional Clause offers the requisite jurisdictional basis for both the principal claim and the counterclaim to the extent of acceptance reflected in the
respective declarations of the parties to the dispute. Thus, in a litigation premised
on unqualified declarations of both parties the jurisdictional basis is wide to allow
for the presentation of any counterclaim provided that direct connection with the
subject-matter of the principal application is proven. By contrast, in the case where
the jurisdiction of the Court is based on declarations that are qualified by reservations a counterclaim is not allowed if it falls within the ambit of a reservation.
In other words, if a reservation precludes the respondent from bringing its claim by
way of a separate application it equally precludes the presentation of the same
claim as counterclaim. Therefore, the only available avenue to a principal applicant to oppose the respondents counterclaim if jurisdiction is established
(or, at least, not disputed) is to prove before the Court that no direct connection
exists.
Thus, in the Congo v. Uganda (Counter-Claims) case Congo, the principal
Applicant did not dispute that the three counterclaims presented by Uganda fulfilled the jurisdictional condition stipulated in Article 80 (1) of the Rules.56 By
contrast, it strongly opposed the counterclaims of Uganda with respect to the
requirement of direct connection. In the same case Judge ad hoc Verhoeven stated
in a Declaration to the Order of the Court that:

52

See loc. cit. supra n. 45.


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 20022003, No 57, 141.
55
See id., 143145.
56
In this case the jurisdiction of the Court was established on the basis of the Optional Clause.
53

4.1 The Jurisdiction of the Court

93

it is a specific feature of the International Court of Justice that its jurisdiction has to date
been purely voluntary. There is thus a possibility that the Court, absent agreement,
might not be able to assume jurisdiction tomorrow in respect of a claim of which it is
seized today by a 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 it such an approach. However,
the risk is that it would encourage States to avoid a court which springs too many
surprises on them. Further, the internal logic of a system of voluntary jurisdiction
undoubtedly requiresirrespective of any considerations of jurisdictional policy
particular rigor in regard to evaluation of the connection which the counter-claim must
have with the principal claim if it is not to be ruled inadmissible57

The above view appears to imply that the lack of flexibility that informs the
examination by the Court of its jurisdiction must also be applied to the evaluation
of the direct connection requirement. This position seems to have been expressed
in relation to the Courts ruling that Ugandas second counterclaim (concerning the
attacks on Ugandas Diplomatic Mission in the Congolese capital Kinshasa,
Ugandan diplomatic staff and nationals) was admissible. One may discern an
attempt in Judge Verhoevens Declaration to establish a link between the jurisdiction of the Court and direct connection, in the sense that the latter may condition or affect the extent of the former in relation to the counterclaim. What in
effect the learned Judges Declaration conveys is that whenever the Court examines the direct connection requirement it must do so having in mind that consent is
the basis of jurisdiction. In other words, that any objections to the direct connection of a counterclaim to the subject-matter of the dispute has direct bearing on
the extent of the jurisdiction of the Court in the specific proceedings as perceived
by the objecting litigant. Thus, the determination of its jurisdiction by the Court on
the basis of the facts invoked by the principal applicant is perceived as final and it
is only by reference to these facts that direct connection is to be examined. In the
Congo v. Uganda context this would imply that the Court would have had to
restrict its jurisdiction only to facts relative to the use of force, military occupation,
and violation of the human rights of Congolese nationals in the regions of the
Congo specifically identified by it and evaluate direct connection only with respect
to this factual framework. Therefore, the extension of the factual complex to be
evaluated for direct connection so as to include alleged acts directed against the
Ugandan Embassy in the capital of the State (namely, thousands of miles away
from the areas identified by the Congo as the theatre of Ugandas alleged violations of the law) would exceed the factual parameters of the Courts jurisdiction.
This would have as far-reaching effect the reluctance of States to submit disputes
to the Court for fear that a prospective respondent may present counterclaims
premised on facts different from those alleged by the applicant in relation to the
jurisdiction of the Court.
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, 684685.

94

4 Admissibility of Counterclaims

It is submitted that the concern expressed to this effect is misplaced. It is true


that the jurisdiction of the Court is based on consent. However, in the context of
the Optional Clause this means consent which is expressed in advance to have any
dispute or certain categories of disputes settled by the Court. This includes both the
claims brought to the attention of the Court by the principal applicant and the
counterclaims that the respondent may present. The direct connection requirement,
which as will be seen in the relevant section infra, is based on both connection in
fact and law and aims at restricting the faculty of presenting any counterclaim.
Once there is consent to the jurisdiction of the Court then a counterclaim by the
respondent shall be ruled upon as admissible if it is connected in fact and law with
the subject-matter of the principal claim. But, as the Court has ruled, connection in
fact does not mean connection to identical facts invoked by the principal applicant;
it means forming part of the same factual complex, a term flexible enough to
include facts giving rise to a counterclaim by the respondent other than those
identified in the principal claim.58

4.1.2.4 The Principle of Forum Prorogatum


The operation of the principle of forum prorogatum is of particular importance in
the case of presenting counterclaims. For there may be cases where the counterclaimant respondent brings by way of counterclaim a claim that rests on an
expanded invocation of the same jurisdictional basis on which the principal claim
is premised.59 There may also be cases where the jurisdiction of the Court to
entertain the principal claim may rest on the principle of forum prorogatum itself.
In this case the question arises whether the respondent may raise a counterclaim
establishing the jurisdiction on the same basis provided that the requirement of
direct connection is present. Before addressing these issues the present writer shall
review the stance adopted toward the principle in the jurisprudence of the International Court.
Sir Hersch Lauterpacht60 has described the principle of forum prorogarum in
these terms:
Exercise of jurisdiction by virtue of the principle of forum prorogatum takes place
whenever, after the initiation of proceedings by joint or unilateral application, jurisdiction
is exercised with regard either to the entire dispute or to some aspects of it as the result of
an agreement, express or implied, which is given by either or both parties and without
which the Court would not be in a position to exercise jurisdiction.

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 Courts jurisdiction with respect to the principal
claim.
60
Lauterpacht 1958, 103. [footnote omitted].

4.1 The Jurisdiction of the Court

95

For, in conditions in which the obligatory jurisdiction of the Court operates by way
of exception rather than otherwise, the principle of forum prorogatum often makes possible the exercise of or submission to the jurisdiction of the Court through a method less
formal than express acceptance of it. Moreover, inasmuch as it provides some justification
for initiation of proceedings in circumstances in which the initial absence of jurisdiction is
apparentand often admittedit may, in some cases, pave the way for the acceptance of
jurisdiction by the party to which an invitation is made in this way

Forum prorogatum is a principle of municipal law according to which the


jurisdiction of a court may be extended by way of agreement of the parties to cover
matters that would otherwise fall beyond it.61 While in municipal law the principle
operates to extend the already existing jurisdiction of a Court, on the international
plane, and in particular before the International Court, it has a wider function: it
establishes the jurisdiction of the Court in cases where no other basis of expressing
consent to it exists. In the words of Judge M. Bedjaoui, former President of the
Court:
The judges of The Hague have in reality conferred an added value upon the traditional
concept of forum prorogatum, by reason of the non-binding character of the jurisdiction of
the Court. This means that forum prorogatum possesses, in the international legal order, a
broader content than in the internal legal order. [It] does not relate to a mere extension
of aalready existingjurisdiction of the Court but serves as basis for it. In other words
the forum prorogatum serves here to regularize the jurisdiction of the international
tribunal a posteriori 62

Moreover, forum prorogatum constitutes an informal basis of consent to the


jurisdiction of the Court. This is consonant with Article 36 (1) of the Statute of the
Court that provides that the Court has jurisdiction upon all cases that the parties
refer to it, without specifying the means by which this referral is to take place. It
is also consonant with Article 40 (1) of the Statute that provides that the Court may
be seized by special agreement or application which must indicate the parties and
the subject of the dispute, not the precise legal provision on which the Applicant
State claims to found the jurisdiction of the Court.63 Finally, Article 38 (2) of the
Rules of the Court requires a State submitting a dispute to the Court by application
to specify as far as possible (not precisely) the basis on which the applicant
establishes the jurisdiction of the Court. Thus, consent to the jurisdiction of the
Court may be established on the basis of the conduct of a State or even tacitly, but
consent established in this manner must be unequivocal and indisputable. As the
Permanent Court ruled in the Rights of Minorities in Polish Upper Silesia
(Minority Schools) case:

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 19961997,
No 51, 216, at 217.
62
Id., 218.
63
Id., 221.

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4 Admissibility of Counterclaims
There seems to be no doubt that the consent of a State to the submission of a dispute to
the Court may not only result from an express declaration, but may also be inferred from
acts conclusively establishing it. 64

In this case, Poland, the respondent State, after it had discussed the merits of the
case in its Counter-Memorial, raised objections to the jurisdiction of the Court for
the first time in its Rejoinder. The Permanent Court rejected the objection of
Poland to its jurisdiction by ruling that having presented arguments on the merits
in the Counter-Memorial Poland manifested beyond doubt an intention to have
judgment on the merits; the Permanent Court also ruled that the acceptance by
a State of the Courts jurisdiction in a particular case is not, under its Statute,
subordinated to the acceptance of certain forms, such as, for instance, the conclusion of a special agreement65
In the Corfu Channel case the United Kingdom instituted proceedings against
Albania although there was no formal basis of the consent of Albania to the
jurisdiction of the Court. On 23 July 1947 Albania communicated a letter dated 2
July 1947 to the Court in which it stressed the irregularity of instituting proceedings on the part of the United Kingdom because in its view the Security
Council Resolution recommending the submission of the dispute between the two
States to the Court did not envision a unilateral but a joint referral of the case. In
the same letter the Albanian government made also clear that notwithstanding this
irregularity it was prepared to appear before the Court. Following the communication of the letter by Albania the Court issued an Order fixing the deadlines for
the submission of the Memorial by the United Kingdom and the CounterMemorial by Albania. It was within the time-limit for the submission of its
Counter-Memorial that Albania raised a preliminary objection according to which
the application of the United Kingdom was inadmissible because it contravened
Articles 40 and 36 of the Statute of the Court. However, by referring to Article 36
of the Statute what in effect Albania objected to was the jurisdiction of the Court.
The Court rejected the preliminary objection of Albania and ruled that by virtue of
its communication it had voluntarily and indisputably accepted the jurisdiction of
the Court. Moreover, the Court noted that although consent is the only basis to
confer jurisdiction upon it, this consent may not be expressed in a specific form.66
Moreover, the Court ruled in the Haya de la Torre case that its jurisdiction
could be established on the basis of the conduct of the parties:

64

Rights of Minorities in Polish Upper Silesia (Minority Schools), PCIJ Ser. A No 15 (1928), 24.
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,
2729.
65

4.1 The Jurisdiction of the Court

97

The Parties have in the present case consented to the jurisdiction of the Court. All the
questions submitted to it have been argued by them on the merits, and no objection has
been made to a decision on the merits. This conduct of the Parties is sufficient to confer
jurisdiction on the Court. 67

In the Anglo-Iranian Oil Co. (Jurisdiction) case the Court expressed the
meaning of the principle in dealing with a submission by the United Kingdom,
according to which Iran had submitted in its Conclusions a number of questions
which were not objections to the jurisdiction of the Court and could only be
decided if the Court had jurisdiction. Therefore, in the view of the UK, by adopting
this course Iran expressed its consent to the jurisdiction of the Court on the basis of
the principle of forum prorogatum:
the principle of forum prorogatum, if it could be applied to the present case, would have
to be based on some conduct or statement of the Government of Iran which involves an
element of consent regarding the jurisdiction of the Court. But that Government had
consistently denied the jurisdiction of the Court 68

Moreover, in the Bosnian Genocide (Provisional Measures) case the Court after
having issued an Order of Provisional Measures on 8 April 1993, it received an
application filed by Bosnia-Herzegovina on 27 July 1993 requesting the indication
of additional Provisional Measures going beyond the Genocide Convention69 on
the basis of which the Court had already found in relation to its April Order that it
had prima facie jurisdiction. Therefore, Bosnia sought to expand the Courts prima
facie jurisdiction in order to persuade it to grant the additional measures it had
requested. In attempting to do so, Bosnia invoked the principle of forum prorogatum by arguing that in April 1993 Yugoslavia had requested the Court to order
provisional measures that went beyond the context of the Genocide Convention.
The Court rejected the arguments of Bosnia premised on forum prorogatum by
finding that the attitude of Yugoslavia was far from manifesting an unequivocal
indication of a voluntary and indisputable acceptance of the Courts
jurisdiction.70
Furthermore, in the Congo v. Rwanda (Preliminary Objections) case the
Applicant invoked eleven grounds to establish the jurisdiction of the Court.
The third ground presented by the Congo was the principle of forum prorogatum.
The argument advanced by the Applicant was that since the Respondent, Rwanda,
67

Haya de la Torre Case (Colombia v. Peru), ICJ Rep. 1951, 71, 78.
Anglo-Iranian Oil Co. case (Jurisdiction), ICJ Rep. 1952, 93, 113114.
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, 332333, para 6.
70
Id., 341342, para 34.
68

98

4 Admissibility of Counterclaims

participated in proceedings before the Court in order to contest the jurisdiction of


the Court this indicated acceptance of jurisdiction on the Merits.71 The Court
reaffirmed its jurisprudence and that of the Permanent Court to the effect that
neither the Statute nor the Rules require that this consent should be expressed in
any particular form and there is nothing to prevent the acceptance of
jurisdiction from being effected by two separate and successive acts, instead of
jointly and beforehand by a special agreement ; it then ruled that:
The attitude of the respondent State must, however, be capable of being regarded as
an unequivocal indication of the desire of that State to accept the Courts jurisdiction in
a voluntary and indisputable manner 72

Finally, in the Djibouti v. France case the Court dealt with an application filed
by Djibouti against France in January 2006 alleging that France had violated its
obligations under the Convention on Mutual Assistance in Criminal Matters
(1986) between the two States and other international obligations by declining to
execute an international letter rogatory in relation to the transmission to the
judicial authorities of Djibouti of the record concerning the criminal investigation
by the French authorities of the murder of Judge Bernard Borrel. Moreover, the
application of Djibouti alleged violations of the bilateral Treaty of Friendship and
Co-operation (1977) between the two States, the rules of the Vienna Convention
on Diplomatic Relations (1961) concerning diplomatic privileges and immunities
and the rules of customary law concerning immunities of Heads of State and other
high-ranking officials as a result of witness summonses to the Head of State and
other senior officials of Djibouti and the arrest warrants issued against the Head of
National Security and the procureur gneral of Djibouti. The application invoked
as basis of the jurisdiction of the Court Article 38 (5) of the Rules of the Court
because there existed no other basis on which the consent of France to the Courts
jurisdiction could be established. Article 38 (5) of the Rules provides that:
When the applicant State proposes to found the jurisdiction of the Court upon a consent
thereto yet to be given or manifested by the State against which such application is made,
the application shall be transmitted to that State. It shall not, however, be entered in the
General List, nor any action be taken in the proceedings, unless and until the State against
which such application is made consents to the Courts jurisdiction for the purposes
of the case

In July 2006 France informed the Court that it consented to the jurisdiction of
the Court pursuant to and solely on the basis of Article 38 (5) of the Rules
and that its consent was valid only for the purposes of the case, within the
meaning of Article 38, paragraph 5, i.e. in respect of the dispute forming the
subject of the Application and strictly within the limits of the claims formulated
therein France argued, moreover, that the dispute between the parties in this
71

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda) (JurisdictionAdmissibility), Judgment of 3
February 2006, ICJ General List No 126, www.icj-cij.org, para 19.
72
Id., para 21.

4.1 The Jurisdiction of the Court

99

sense was delineated in the section of Djiboutis application entitled Subject of


the dispute and it concerned only its decline to execute the international letter
rogatoty and nothing further.
In its Judgment the Court ruled that neither its Statute nor the Rules require that
consent to its jurisdiction is expressed in a specific form and that it may be
deduced from certain acts thus accepting the possibility of forum prorogatum73 The Court went on to state that the consent to its jurisdiction had to be
certain and this also applied to the principle of forum prorogatum as a basis of its
jurisdiction. Therefore,
the attitude of the respondent State must be capable of being regarded as an
unequivocal indication of the desire of that State to accept the Courts jurisdiction in a
voluntary and indisputable manner. For the Court to have jurisdiction on the basis of
forum prorogatum, the element of consent must be either explicit or clearly to be deduced
from the relevant conduct of a State 74

The Court subsequently dealt with the scope and purpose of Article 38 (5) of
the Rules. It stated that this provision served a dual purpose. First, procedural
economy and sound administration of justice because prior to the adoption of this
Rule in 1978 an application instituting proceedings against a State that did not
accept the Courts jurisdiction on any other basis would be entered into the
General List only to be removed at a subsequent stage because the Court plainly
lacked the jurisdiction to entertain the case. Secondly, it provides States that do not
consent to the jurisdiction of the Court the opportunity to do so by specifying the
aspects of the dispute which they agree to submit to the judgment of the
Court. Thus,
The deferred and ad hoc nature of the Respondents consent, as contemplated by Article
38, paragraph 5, of the Rules of the Court, makes the procedure set out there a means of
establishing forum prorogatum.75

Furthermore, the Court ruled that Article 38 (5) was to be interpreted in the
light of Article 38 (2) of the Rules, in the sense that while an application instituting
proceedings may indicate as far as possible the legal grounds upon which the
jurisdiction of the Court is said to be based this is not possible with respect to the
precise nature of the claim, the facts and grounds on which the claim is
based, the State against which proceedings are instituted and the subject of the
dispute. In other words precision and specificity are required for all the particulars
of an application except the grounds of consent to the jurisdiction of the Court:

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. 6061.
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 19961997, No 51,216, at 217.

100

4 Admissibility of Counterclaims

while doubts may previously have existed in this respect, since the revision in 1978, the
wording of Article 38, paragraph 2, excludes the possibility of the phrase as far as
possible also being applied to the statement of the precise nature of the claim or of the
facts and grounds on which the claim is based. No applicant may come to the Court
without being able to indicate, in its Application, the State against which the claim is
brought and the subject of the dispute, as well as the precise nature of that claim and the
facts and grounds on which it is based 76

Having said that, the Court proceeded to point out that while the expression of
consent to the Courts jurisdiction by way of forum prorogatum was one matter, the
extent of this consent was quite another. In other words the subject-matter of the
dispute upon which the Court had jurisdiction to adjudge was to be determined by
discerning the extent to which the jurisdiction of the Court has been accepted. The
Court did not accept as a matter of principle the French contention that the subject
of the dispute was defined exclusively in the Section 2 of Djiboutis application
entitled Subject of the dispute. It ruled that while it is desirable that what the
applicant regards as the subject-matter of the dispute is specified under the heading
in the Application, nonetheless, the Court must look at the Application as a
whole .77 However, this is not the end of the matter, because in the case of
application of forum prorogatum great care must be taken regarding the scope
of the consent as circumscribed by the respondent State 78 In other words, the
Court appears to imply that it is the respondent State that determines the precise
parameters of the subject-matter of the dispute upon which jurisdiction is conferred
upon the Court through its reply to an application launched against it in the
knowledge that it does not accept the Courts jurisdiction. In this manner, a
respondent State may accept the jurisdiction of the Court by way of forum
prorogatum within bounds that are narrower than the subject-matter as identified in
the application, as it may do the opposite, namely, accept the jurisdiction of the
Court on the entire subject-matter as this is defined in the application.
In the context of counterclaims the principle of forum prorogatum offers the
counterclaimant respondent an opportunity to succeed in including within
the subject-matter jurisdiction of the Court claims that are not covered by it on the
basis of the original application, when the jurisdiction of the Court is premised on
any of the bases of Article 36 of the Statute. This may be the case if the original
applicant raises no objection. In this way, by its conduct, the principal applicant
accepts that the Court has jurisdiction over the subject-matter of the counterclaim.
But is forum prorogatum the only way by which a respondent may bring by way of
counterclaim claims not falling under the subject-matter jurisdiction of the Court
as it is circumscribed in the original application? This author has submitted in the
preceding section that this not the case, provided that the requirement of direct
connection is present. The Court, on the other hand, appears to take the opposite
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 6869.
78
Id., para 87.

4.1 The Jurisdiction of the Court

101

view by its treatment of the requirement of jurisdiction in the Oil Platforms case
with respect to the counterclaim presented by the United States. Thus, according to
the Court, once the subject-matter jurisdiction has been determined by it with
regard to the principal claim in a Preliminary Objections Judgment no extension of
it may be allowed and the counterclaim is admissible, as far as jurisdiction is
concerned, only if it fits the parameters of subject-matter jurisdiction as defined by
the Court. The attitude of the Court in Oil Platforms, thus, appears to advocate the
position that forum prorogatum is the only avenue open to a counterclaimant
respondent to bring claims that do not exactly come under the subject-matter
jurisdiction concerning the original application as this is finally defined by the
Court. However, the unexplained attitude of the Court in this particular dispute,
may lead one to conclude that even if Iran had not objected to the jurisdictional
basis of the counterclaim the Court would have adopted the same stance. This may
seem likely, because to admit the subject-matter of the US counterclaim as it was
formulated might effectively amount to a revision of its 1996 Judgment on
Jurisdiction and Admissibility. Moreover, as the Court has shown in the Bosnian
Genocide (Merits) case it is very reluctant to adopt a course that would question
the finality of its Judgments on Preliminary Objections to Jurisdiction and
Admissibility.79
Furthermore, in the case where the original application comes under the
jurisdiction of the Court on the basis of forum prorogatum it is the respondent that
has wide discretion to define the precise subject-matter of the dispute falling
within the Courts jurisdiction when it unequivocally and indisputably expresses
consent to the jurisdiction of the Court. The question then arises whether a
respondent in this case may by presenting a counterclaim extend by way of forum
prorogatum the subject-matter of the dispute at bar which it itself has originally
delineated. In this situation the original applicant has the position of respondent
and the reversal of roles gives it the discretion either to accept the extension of
subject-matter unequivocally, voluntarily and indisputably or expressly refute the
counterclaimant respondents assertion. In particular, it is submitted that the
principle of equality of the parties would require that if jurisdiction over
the original claim were based on forum prorogatum by virtue of Article 38 (5) of
the Rules, the same procedure should be applied on the part of the principal
applicant in respect of the respondents counterclaim. In other words, incidental
proceedings must not commence with respect to the counterclaim unless the
principal applicant specifically consents to the jurisdiction of the Court to discuss
the counterclaim. Otherwise, the principal claimant may find itself in a very disadvantaged position in having his claim severely circumscribed by the original
respondent while facing a wider and more comprehensive counterclaim. It is
submitted that only if the counterclaim comes under the subject-matter jurisdiction
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. 80141, esp. para
121 et seq.

102

4 Admissibility of Counterclaims

based on forum prorogatum as was determined by the Court with regard to the
original application would it fulfil the requirement of jurisdiction in Article 80 (1)
of the Rules.
However, it is the Court that will ultimately rule on this matter. Its practice
indicates that an objection of the original applicant that a counterclaim exceeds the
jurisdiction of the Court with respect to the subject-matter of the dispute, if already
determined by the Court, shall not be discussed in the counterclaims but in the
merits stage of the proceedings. Therefore, unless the Court rules in the counterclaims stage that the requirement of direct connection is lacking, the original
applicant must wait until the stage of the merits to find out whether its objection is
successful or not. Moreover, the original applicant must also persevere and be
extremely cautious lest its conduct be interpreted by the Court as indicating
unequivocally and indisputably accepting the extension of the subject-matter
jurisdiction of the Court by way of forum prorogatum with regard to the
counterclaim.
Furthermore, in the Djibouti v. France case the Court adopted a rather unclear
approach toward the question of the subject-matter of the dispute falling under its
jurisdiction on the basis of forum prorogatum as delineated by the respondent in its
expression of consent. It ruled that it had jurisdiction to entertain a claim by
Djibouti concerning a summons addressed to the President of Djibouti on 14
February 2007 to testify as witness, namely, after the application had been filed,
because it constituted in its view a repetition of an earlier summons of the same
subject issued in 2004, namely, prior to the filing of the application. In addition,
the Court found that the reply of France accepting the jurisdiction of the Court
under Article 38 (5) of the Rules did not restrict its jurisdiction on the basis of
forum prorogatum temporally but only in respect of the subject-matter of the
claims brought by Djibouti. Moreover, in the opinion of the Court a communication by a respondent State under Article 38 (5) of the Rules accepting the
jurisdiction of the Court with respect to an application and strictly within its limits
is to be interpreted by reference to the application as a whole, rather than on a
particular and restrictive interpretation of the respondents communication
accepting jurisdiction. Furthermore, in cases where jurisdiction is established on
forum prorogatum any subsequent claims by the applicant are to be assessed by
reference to the subject-matter of its claim as defined at the time of the application
and restricted to the text of this application. By this the Court deviated from
previous jurisprudence concerning disputes premised on bases of consent to its
jurisdiction other than forum prorogatum by treating the subsequent invocation of
facts and events as pertaining to the limits of its jurisdiction ratione temporis and
not ratione materiae.80 Thus, the Court treated Djiboutis claim on the summons
issued to the President of the country as falling within its jurisdiction, namely, not
as a new claim ratione materiae, while it excluded from it another claim

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, 8788.

4.1 The Jurisdiction of the Court

103

concerning arrest warrants issued against high-ranking officials in 2007 as


constituting a new claim ratione materiae. The conclusion to be reached is that
when jurisdiction is based on forum prorogatum established under Article 38 (5) of
the Rules this jurisdiction is limited by the content of the application which may be
further restricted by the respondent to certain aspects of it. If such restriction takes
place it must be express both ratione temporis and ratione materiae. Otherwise,
there appears to be an element of unpredictability with respect to the extent of
consent by way of forum prorogatum because a respondent may find itself consenting to the Courts jurisdiction more extensively than he originally intended.81
In other words, unless the respondent restricts the forum prorogatum jurisdiction
of the Court ratione temporis it may be subject to the Courts jurisdiction with
respect to claims posterior to the application but being identical ratione materiae
to claims concerning facts and events antedating the application. By contrast,
claims that are unrelated ratione materiae to the subject-matter of the application
shall not be entertained by the Court, irrespective of whether these claims are or
are not posterior to the application, or the respondent restricted the scope of its
acceptance of the jurisdiction of the Court ratione temporis or not. In the context
of counterclaims against a principal applicant that has succeeded in basing the
jurisdiction of the Court on forum prorogatum this would imply that the principal
claimant as counter-respondent could not restrict the subject-matter of the counterclaim if it comes within the extended scope of consent with regard to the
principal application. Moreover, a counterclaimant respondent can only bring a
counterclaim falling within the extended scope of forum prorogatum upheld by the
Court only if jurisdiction is the subject of incidental proceedings on Preliminary
Objections, namely, before the filing of the respondents Counter-Memorial on the
Merits. Otherwise, if the Court discusses its jurisdiction at the stage of the merits,
namely, after the filing of the Counter-Memorial, the counterclaimant respondent
faces the prospect of having its counterclaim rejected as being beyond the jurisdiction of the Court.

4.1.3 The Position of Third States


The position of third States vis vis the litigation between two other States may
affect the proceedings before the International Court of Justice in a twofold
manner: First, the Court shall decline to exercise the jurisdiction it possesses to

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 Courts 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.

104

4 Admissibility of Counterclaims

settle the dispute between two States if in order to settle the dispute between the
original litigants it must adjudge as a prerequisite on the rights and obligations of
a third State which has not consented to be party in the proceedings. Secondly, a
third State may have a right of a legal nature that is likely to be affected by the
Judgment of the Court in a dispute between two other States. In this case, the third
State has the right to apply to intervene in the proceedings. The first situation is
addressed by application of the Monetary Gold principle that has been formulated
by the Court in the course of its jurisprudence and the fundamental requirement of
consent to its jurisdiction lies in its core. The second contingency is expressly
provided in Articles 62 and 63 of the ICJ Statute.
The Monetary Gold Principle was in introduced by the Court in the Case of the
Monetary Gold Removed from Rome in 1943. In this case the Court ruled that Italy,
the plaintiff, could not claim Albanian Monetary Gold as reparation for the damage
allegedly suffered by Italian nationals unless it was first established that Albania
had incurred international responsibility for the nationalization by the Albanian
Government of the assets of the Central Bank of Albania. In other words the
determination of the responsibility of Albania was a prerequisite for deciding the
claim of Italy. Therefore, the interests of Albania constituted the subject-matter of
the case and in view of the absence of Albania from the proceedings the Court
declined to exercise jurisdiction. The Court ruled that To adjudicate upon the
international responsibility of Albania without her consent would run counter to a
well-established principle of international law embodied in the Courts Statute,
namely, that the Court can only exercise jurisdiction over a State with its
consent. In the present case, Albanias legal interests would not only be affected
by a decision, but would form the very subject-matter of the decision. In such a
case, the Statute cannot be regarded, by implication, as authorizing proceedings to
be continued in the absence of Albania 82
The principle articulated by the Court was applied 40 years later in the East
Timor case, where the Court was requested by Portugal to adjudge that a treaty
concluded between Australia and Indonesia concerning the joint exploration and
exploitation of the Timor continental shelf violated the right of self-determination
of the people of East Timor. The Court ruled that Australias conduct could not be
assessed without determining the grounds on which Indonesia could not have
concluded the 1989 treaty: the very subject-matter of the Courts decision
would necessarily be a determination whether, having regard to the circumstances
in which Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating to the
resources of the continental shelf. The Court could not make such a determination
in the absence of the consent of Indonesia 83

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 2829.

4.1 The Jurisdiction of the Court

105

The Court has generally approached the Monetary Gold principle with
considerable circumspection by adopting a rather strict view with respect to the
circumstances allegedly requiring its application. In Nicaragua (Jurisdiction and
Admissibility) the USA asserted that the Court could not decide on Nicaraguas
claim without adjudicating, on the rights and obligations of other States, in particular Honduras, in the absence of their consent to the jurisdiction of the Court.84
The Court rejected the US contention by ruling that Nicaraguas claim against the
USA constituted an autonomous claim on its merits, in the sense of not being
dependent on the prior determination of a third States claim. Moreover, the Court
ruled that there was in principle no indispensable parties rule that was admissible under its Statute. The Court stated that Honduras and other neighboring
States of Nicaragua did not have the position of Albania in the Monetary Gold case
so as to be truly indispensable in the proceedings at bar.85 In the Nauru case the
Court outlined a narrow framework within which it would apply the Monetary
Gold principle. It ruled that although the administration of Nauru had been
entrusted jointly to Australia, New Zealand and the UK the determination of the
responsibility of Australia did not require the prior determination, as logical
prerequisite, of the responsibility of either New Zealand or the UK.86
Intervention of third parties in proceedings already pending between two States
is allowed under Articles 62 and 63 of the Statute of the Court. Article 63 concerns
intervention in a case the subject-matter of which is the interpretation of a multilateral treaty and gives the right to any contracting party other than the litigant
States to apply to intervene in the proceedings. In this contingency the interest of
legal nature is identified as the interpretation to be given by the Court to specific
provisions of the treaty and the consequence for the intervening contracting party
is that this interpretation is binding upon it. Article 62 regulates intervention when
a third party has an interest of a legal nature that is likely to be affected by the
proceedings. In the El Salvador-Honduras (Nicaragua Intervening) case87 the
Court outlined the requirements for the admissibility of an application to intervene.
It ruled that the intervening State had to prove (a) the existence of a specific, as
opposed to a general, interest of a legal nature that (b) might be affected, as
opposed to it being definitely affected. Moreover, the Court ruled that the right of a

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. 301302 (per Judge Jennings); 326328
(per Judge Ago); 329343 (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, 107135, paras 35101.

106

4 Admissibility of Counterclaims

third State to seize the Court by applying to intervene was premised on Article 62
of the Statute and did not require a jurisdictional bond with the incumbent litigant
States on the basis of Article 36 of the Statute. The result of this would be that if an
application to intervene were successful, the intervening party would not acquire
the status of litigant and would merely have the Court acknowledge in its Judgment the existence of the right of the third State. A further consequence is that the
Judgment delivered by the Court in the dispute between the original litigants
would exclude parts of the subject-matter of the dispute relative to the intervening
States right. What is interesting is that the Court has adopted this stance even in
disputes where applications of third States to intervene were rejected (viz. LibyaTunisia Continental Shelf Case (Malta Intervening)88 and Libya-Malta Continental Shelf Case (Italy Intervening)).89
The position of third States with regard to the presentation of counterclaims has
been the object of attention and concern since the time of the original drafting and
the subsequent revision of the Rules of the Permanent Court of International
Justice. The Coordination Commission stated in its Report of 14 May 1934 that
there had been concern about presenting a counterclaim not by separate application but in the Counter-Memorial. The focus of concern had been the fact that
while by virtue of Article 40 of the Statute of the Permanent Court an application
would be transmitted to third States to enable them to consider whether to intervene or not, a notice of counterclaims would not be notified as it would be included
in the respondents Counter-Memorial. This concern was voiced by Judge
Negulesco who raised the issue of the form counterclaims should take.90 In particular, he suggested that counterclaims should be presented in the form of separate
application so as to bring them in conformity with Article 40 of the PCIJ Statute,
because the lack of an express provision allowing the presentation of counterclaims in the Counter-Memorial would result in their not being notified to third
States.91 The opposite view was expressed by Judge Anzilotti, who said that
notification to third States was essentially unimportant because under the PCIJ
Rules third States had the right to be apprised of the written proceedings between
the litigant parties.92 In other words, a third State not party to the proceedings had
the opportunity to be informed about the presentation of a counterclaim on its own
initiative, rather than upon notification, and the implication was that failure to do
so would be at its own risk.93
In its early jurisprudence the present Court appears to have subscribed to the
view expressed by Anzilotti for in neither the Asylum case not the US Nationals in

88

ICJ Rep. 1981, 3.


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, 863864.
93
Anzilotti 1930, 864 expressing the view that it is a matter of diligence on the part of third
_
States (Etat
diligent) to be apprised of the content of the written proceedings.
89

4.1 The Jurisdiction of the Court

107

Morocco case did it express itself on the need that third States had to be notified
rather than informing themselves of the counterclaims presented, respectively, by
Peru and the USA. It was only in counterclaims proceedings under Article 80 of
the 1978 Rules that the Court appears to have modified its position by expressly
addressing the issue of third State knowledge of the counterclaims. In the Bosnian
Genocide (Counter-claims) case the court expressly ruled that
in order to protect the rights which third States entitled to appear before the Court derive
from the Statute, the Court instructs the Registrar to transmit a copy of this Order to
them94

This passage has been reproduced verbatim in the Oil Platforms (Counterclaim)
case,95 the Cameroon v. Nigeria (Counterclaims) case96 and the Congo v. Uganda
(Counterclaims) case.97 It is noteworthy that the Court while not upholding the
view expressed by Judge Anzilotti, namely, that third States are expected to
persevere and acquire knowledge of the content of a counterclaim presentation on
their own initiative it did not suggest that the section of a respondents CounterMemorial containing the counterclaim be transmitted to third States. Rather, it is
the Order of the Court ruling that a counterclaim is admissible that is to be notified.
In this manner, the Court appears to have taken the view that it would be too
inequitable to expect of third States to take all necessary steps to inform themselves of the written proceedings between the original litigants but at the same
time it would be too premature to transmit to them the relevant part of the CounterMemorial of the respondent. It is submitted that the position adopted by the Court
is very balanced in that third States are to be notified but only if the Court by an
Order rules that a respondents counterclaim(s) is (are) admissible. Indeed it would
not serve any real purpose to allow a third State to exercise its rights under the
Statute of the Court if the Court has not reached a decision with respect to the
counterclaim of the respondent. In other words, what would be the utility of
making an application to intervene in relation to counterclaim at the stage of the
submission of the Counter-Memorial if the latter is rejected as inadmissible? In
any event, although Article 80 of the Rules, both as it was originally adopted in
1978 and after its amendment in 2001, is silent on the matter of notification of
third States, the Courts consistent and uniform practice so far of transmitting its
Orders by virtue of which counterclaims are held to be admissible to third States,
may lead to the conclusion that third States may have the legitimate expectation of
being notified on a counterclaim upon the initiative of the Court.

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.

108

4 Admissibility of Counterclaims

Moreover, the above passage indicates that third party intervention is in principle allowed in relation to counterclaims. For it may not be inconceivable that a
counterclaim, as an independent claim, may affect a right of a legal nature of a
third State. In addition, the Statute of the ICJ provides in Article 40 (3) that an
application instituting proceedings or a special agreement submitting a dispute to
the Court shall be notified to members of the UN and any other States entitled to
appear before the Court the purpose being to allow third states to exercise their
right to intervene under Articles 62 and 63 of the Statute. Indeed, it would be
rather unfair that third States would be denied the right to knowledge by notification that they possess with respect to the principal claim in the case of counterclaims simply by reason of lack of express provision in the Statute. Once there is
an Order of the Court allowing a counterclaim as admissible then the door opens
for a third State to intervene in the proceedings in relation to the counterclaim. The
subject of intervention may be the provision of a treaty that constitutes the subject
of the counterclaim and the third party may be any contracting party to the treaty
other than the principal applicant and the counterclaimant respondent. It may also
be a right of a legal nature that is likely to be affected by the ruling of the Court on
the counterclaim. In either case, it is submitted that the procedure of the Court
shall be the same as in cases of intervention under Articles 62 or 63 with regard to
the principal application. This means that the intervening State does not have to
prove the existence of a jurisdictional bond between itself, on the one hand, and
the principal applicant and the counterclaimant respondent, on the other; it must
prove that right of a legal nature is a right of a specific rather than of general nature
and that it might be, not that it shall definitely be affected; it does not become a
party to the proceedings but in the case of intervention under Article 63 the
interpretation given by the Court to a particular provision of a treaty shall be
binding on the State intervening in relation to a counterclaim.
Apart from the question of intervention, the Court may apply the Monetary
Gold principle in relation to the presentation of a counterclaim. The application of
this principle is a matter directly pertinent to the requirement of consent as the
basis of the jurisdiction of the Court. This means that if a ruling on the counterclaim by the Court requires as a prerequisite a ruling upon the rights and obligations of a third State not party to the original proceedings, then Court shall
decline to exercise its jurisdiction with respect to the counterclaim, even though a
jurisdictional basis exists for it to entertain the counterclaim under Article 80 (1) of
the Rules. In the Bosnian Genocide case the counterclaim presented by Yugoslavia
alleging the commission of genocide by the authorities of Bosnia included allegations of perpetration of the crime by the authorities of Croatia as well. Bosnia
did not object to the jurisdiction of the Court with respect to the counterclaim of
Yugoslavia and the Court restricted itself simply to acknowledge this fact. The
question then arises why the Court refrained from exercising its competence de la
competence under Article 36 (6) of the Statute with respect to the counterclaim of
Yugoslavia. The answer appears to be twofold. First, the principal applicant,
Bosnia, did not raise a preliminary objection on the basis of the Monetary Gold
principle. But this would not appear to be a sufficient reply given the great

4.1 The Jurisdiction of the Court

109

importance the Court gives to consent to its jurisdiction and which would justify an
examination of the existence of this consent in relation to a third party whether
there existed a preliminary objection or not. Secondly, it may be presumed that the
Court did indeed evaluate the allegations of Yugoslavia concerning Croatia and
reached the conclusion that they were not of such import as to require the application of the principle. Judge ad hoc Sir Elihu Lauterpacht pointed that the allegations of perpetration of genocide on the part of Croatia in the counterclaim of
Yugoslavia appeared to bring into the case the issue of responsibility of a State
which was not party to the proceedings. However, he took the view that the Court
treated this contingency as not sufficient to decline to exercise its jurisdiction with
respect to the counterclaim due to the small number of situations in which the
allegations against Croatia were made.98 By contrast, Judge Weeramantry took the
view that the prospect of the counterclaim of Yugoslavia involving the rights and
obligations of third State would have an adverse effect upon the rationale of
counterclaims, namely, achieving convenience and judicial economy.99 In any
event, the Monetary Gold principle is invoked by way of a preliminary objection to
the jurisdiction of the Court and the admissibility of the application. In the case of
counterclaims and in the light of the Order in the Jurisdictional Immunities case it
appears that such an objection is more likely to be evaluated not at the stage of the
Merits but at the stage of incidental proceedings.

4.1.4 Preliminary Objections to Jurisdiction and Admissibility


Concerning Counterclaims
Objections to the jurisdiction of the Court or to the admissibility of a dispute
signify a dispute as to these matters. According to Rosenne such dispute concerns
at least three issues: (a) a dispute regarding the conformity of the seisin with the
agreements in force between the parties or regarding the receivability of the
proceedings without any implication regarding the Courts jurisdiction over
the Merits; (b) a dispute regarding the jurisdiction over the merits on the basis that
the Court has been properly seized of the case; and (c) a dispute regarding the
admissibility of the case on the merits, the decision on which implies that
the Court has been validly seized of and has jurisdiction over the merits but in the
circumstances cannot or should not exercise this jurisdiction.100 The purpose of

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, 817818.

110

4 Admissibility of Counterclaims

raising objections to the jurisdiction of the Court and admissibility of the case is to
preclude the Court from adjudicating upon the merits of a dispute.101
Preliminary objections are dealt with in Article 79 of the Rules of the Court
(as amended in 2000), paragraph 9 of which provides that After hearing the
parties, the Court shall give its decision in the form of a judgment, 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.102
In the latter case the Court joins the objections of non-exclusively preliminary
character to the stage of the merits of a dispute.103 Rosenne104 has suggested that
the distinction between objections of a preliminary character and objections not
possessing an exclusively preliminary character lies in their impact on the final
judgment: If an objection aims at interrupting further proceedings on the merits
and for this reason it would be more appropriate that the Court deals with it before
the stage of the merits then it is of preliminary character. If, on the other hand, it
does not have this objective but it is formulated, after pleading on the case, as an
objection to the final submissions of one of the parties either because they do not
fall within the jurisdiction of the Court or because they do not offer the basis of the
existence of a legal interest of the applicant then the objection is not of preliminary
character. In the latter case it appears that the purpose of the party raising the
objection is defensive, aiming at securing the rejection of the claim without
inquiring into the merits. The decision as to whether an objection to the jurisdiction or admissibility is or is not of an exclusively preliminary character lies with
the Court as part of its competence to determine its jurisdiction in accordance with
Article 36 (6) of the Statute.105 What the Court appears to take into account is
the intention of the objecting State as manifested by the latters choice of procedure and its decision is reached after evaluating this intention. If the enquiry of the
Court with regard to this intention is that the objecting State does not aim at the
interruption and discontinuance of the proceedings then it considers this objection
to be no obstacle for it to continue dealing with the dispute at the stage of the
merits.106 In the Avena case the Court found that Article 79 applies only to
preliminary objections, as indicated by the title of the subsection of the Rules
which it constitutes. As the Court observed in the Lockerbie cases, if it is to be
covered by Article 79, an objection must possess a preliminary character,
and paragraph 1 of Article 79 of the Rules of Court characterizes as preliminary

101

Id., 819.
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, 820821.
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.
102

4.1 The Jurisdiction of the Court

111

an objection the decision upon which is requested before any further proceedings and the effect of the timely presentation of such an objection is that the
proceedings on the merits are suspended (paragraph 5 of Article 79). An objection
that is not presented as a preliminary objection in accordance with paragraph 1 of
Article 79 does not thereby become inadmissible. There are of course circumstances in which a party failing to avail itself of the Article 79 procedure may
forfeit its right to bring about a suspension of the proceedings on the merits, but
can still argue the objection along with the merits 107
Article 79 (9) repeats a new provision that was first introduced in Article 67 of
the 1972 Rules and maintained in Article 79 (7) of the 1978 Rules. The innovation
of Article 67 of the 1972 consisted in the apparent abandonment by the Court of its
long-standing practice to join preliminary objections to jurisdiction and admissibility to the merits of the case if this was required by the interests of sound
administration of justice and if there was risk of adjudicating on questions
appertaining to the merits of the dispute.108 In other words what had hitherto
constituted an exercise of discretion embodied in an Order of the Court was
transformed into a declaration that an objection did not possess an exclusively
preliminary character embodied in a Judgment on Preliminary Objections. In the
Nicaragua case the Court expressed the view that the practice of the Court prior to
the revision of the Rules in 1972 and 1978 entailed the risk of deciding a case on
the preliminary objection while requiring the parties to plead on the merits. On the
other hand, as the Court suggested, to dispose of all preliminary objections by
absolutely excluding a joinder to the merits would overlook the fact that in some
cases preliminary objection are bound up with the merits. Therefore, the Court
concluded, Article 79 (7) [now Article 79 (9)] of the Rules offered the Court a
margin of discretion to decide whether a certain objection could be disposed of at a
preliminary stage or be joined to the merits.109 Indeed, by presenting the preexisting practice of discretion to join a preliminary objection to the merits as
overburdening the parties and transplanting this discretion in the context of the
formalized procedure of article 79 (7) [now (9)], the Court appears to surmise that
no change in substance, but rather of policy, has taken place. An eminent commentator has suggested the view that [T]he intimation that the Court might
decide that in the circumstances an objection does not possess an exclusively
preliminary charactera severe test indeedwould add nothing to what the Court
already has the power to do and which the Permanent Court has done In that
hypothesis, the question arises why the Court should have gone to such lengths to
announce what is no more than a policy of not availing itself, as far as possible, of
its option to join an objection to the merits 110

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, 2931, paras 3741 et seq.
110
Rosenne op. cit. supra n. 100, 890891.

112

4 Admissibility of Counterclaims

The present writer has ventured on a brief excursus into the matter of objections
to the jurisdiction of the Court and admissibility of the application as constituting
objections of not an exclusively preliminary character because in two cases the
Court has taken the view that issues of jurisdiction and admissibility of a counterclaim are not conclusively dealt with at the counterclaims incidental proceedings but at the stage of the merits. At the same time, in its Order in the
Jurisdictional Immunities case the Court adopted the opposite stance and treated
the objection of Germany to the jurisdiction of the Court in relation to the
counterclaim of Italy as a preliminary objection to be dealt with at the stage of
incidental proceedings. The issue was raised by Judge R. Higgins in her separate
opinion in the Oil Platforms (Counterclaim) case.111 She pointed that the Order of
the Court failed to resolve a question that Iran had considered to be a matter that
was relative to the jurisdiction of the Court, namely, that the US counterclaim
concerned the destruction of vessels rather than oil platforms. In her view, the
question of whether Article X (1) of the 1955 Treaty was limited to commerce
between Iran and the USA that had not been discussed in the Preliminary
Objections stage, resurfaced in the counterclaims stage in the form of a disagreement between the parties whether the US vessels were engaged in commerce
between the two States. Moreover, the issue of whether the Court had jurisdiction
in relation to the US contention of damage to warships had to be decided at the
counterclaims stage. Judge Higgins appears to consider, on the one hand, that
the principle of equality of the parties was to an extent not observed112 and, on the
other, that the Court suggested that objections to jurisdiction with regard to a
counterclaim were by definition of not of a preliminary character.113 The latter
point, in particular, was said to be due to the silence of Article 80 (3) of the Rules
[prior to the revision of 2001] with respect to holding a hearing in the event of
doubt concerning the Courts jurisdiction as a requirement of the admissibility of
counterclaims under Article 80(1). Judge Higgins was very critical of what she
perceived as a standing exception to Article 79, paragraph 6, of the Rules (or, put
differently, a counter-claim where jurisdiction is contested would always and
necessarily be treated as not having an exclusively preliminary character under
Article 79, paragraph 7).114 She thought that such a position was unwarranted by
the travaux of the Rules, that the silence of Article 80 (3) was not intentional to
distinguish between objections relating to connection and those to jurisdiction, and that Article 79 (7) [now 9] should be applied sparingly.115
111
Case Concerning Oil Platforms (Iran v. USA) (Counter-claim), ICJ Rep. 1998, 190, 221223
(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 Irans response to the counter-claims.
113
Id., 222.
114
Ibid.
115
Id., 222223.

4.1 The Jurisdiction of the Court

113

During the pleadings on the merits in the same case Counsel for Iran stated that
[T]he Order of 10 March 1998 did not settle all preliminary issues involved in the
counterclaim. The Court could have done so. But it decided otherwise by ruling
that the counter-claim was admissible as such, namely, the 1998 Order did not
decide the issues of admissibility not falling directly within the terms of Article 80
of the Rules nor the issues of jurisdiction arising out of specific US claims.116
In its Judgment on the Merits the Court addressed the matter by distinguishing
between jurisdiction as a procedural requirement for the admissibility of a counterclaim and jurisdiction and admissibility as to the merits of a counterclaim. The
Court ruled that:
it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of
the Court to entertain the counter-claim or to its admissibility other than those addressed
by the Order of 10 March 1998. When in the Order the Court ruled on the admissibility
of the counter-claim, the task of the Court at that stage was only to verify whether or not
the requirements laid down in Article 80 of the Rules of the Court were satisfied, namely,
that there was a direct connection of the counter-claim with the subject-matter of the
Iranian claims and that the counter-claim fell within the jurisdiction of the Court. The
Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility not directly linked to article 80 of the Rules. This is clear from
the terms of the Order, by which the Court found that the counter-claim was admissible
as such and in paragraph 41 of the Order the Court further stated that a decision on the
admissibility of a counter-claim on the basis of the requirements of Article 80 in no way
prejudges any question which the Court will be called upon to hear during the remainder
of the proceedings117

Following the Courts Order of 29 November 2001 in the Congo v. Uganda


case, by which the counterclaims presented by Uganda were (all but one) ruled
admissible the Applicant State, the Congo, raised objections to the admissibility of
Ugandas counterclaims. The Congo stated that it applied by analogy Article 79
of the Rules of the Court to counterclaims, namely, that it submitted the objections
to the counterclaims in the first written pleadings following both the submission of
the counterclaims by Uganda in its Counter-Memorial and the Order whereby the
Court ruled on the admissibility of those claims as counterclaims. Uganda opposed
the objections raised by the Congo arguing that the issue of admissibility of its
counterclaims had been definitively determined by the Order of 29 November
2001 in accordance with Article 80 of the Rules. The Court referred to its ruling in
the Oil Platforms case (quoted above)118 and addressed the matter in a clearer
manner:

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 270272, www.icj-cij.org; cf. S. Rosenne 2007, 288.

114

4 Admissibility of Counterclaims

The enquiry under Article 80 as to the admissibility is only in regard to the question
whether a counter-claim is directly connected with the subject-matter of the principal
claim; it is not an over-arching test of admissibility. Therefore, the Court in its Order of 29
November 2001 intended only to settle the question of a direct connection within the
meaning of Article 80.
With regard to Ugandas contention that the preliminary objections of the DRC are
inadmissible because they failed to conform to article 79 of the Rules of the Court the
Court would observe that Article 79 concerns the case of an 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. It is
inapplicable to the case of an objection to counter-claims which have been joined to the
main proceedings. The Court notes that nonetheless, the DRC raised objections to the
counter-claims in its Reply, i.e. the first pleading following the submission of Ugandas
Counter-Memorial containing its counterclaims.
In light of the findings above, the Court concludes that the DRC is still entitled, at this
stage of the proceedings, to challenge the admissibility of Ugandas counter-claims119

In an entirely different approach, the Court in the Jurisdictional Immunities case


dealt with the objection of Germany to its jurisdiction to deal with Italys counterclaim as a preliminary objection at the stage of the incidental proceedings. The
Court has offered no explanation of this deviation from its practice in the earlier
two cases. It may be deduced, however, that unlike the Oil Platforms case, in
Jurisdictional Immunities the jurisdiction of the Court was not contested by way of
preliminary objections leading to a Judgment of the Court delineating the
boundaries of its jurisdiction. Moreover, the subject-matter of the counterclaim
was not stated with clarity and precision in the Counter-Memorial of Italy or in any
consultation between the parties120 and as the Court found, it consisted of the
extent of the obligation of Germany to make reparation to Italian nationals. As
such the subject-matter of the counterclaim fell outside the jurisdiction of the
Court on the basis of the 1957 European Convention.
It is submitted that the treatment by the Court of objections to jurisdiction and
admissibility of a counterclaim gives rise to a number of conclusions.
First, objections to jurisdiction and admissibility with respect to the merits of a
counterclaim are permissible.
Secondly, of these, objections to the jurisdiction of the Court may be expected,
reasonably but not conclusively, to be dealt with by the Court at the stage of the
Merits. This is the position adopted by the Court, as well as by the objecting States
in Oil Platforms and Congo v. Uganda. Iran did not insist on the matter nor did it
criticize the Court for not dealing with its objections to jurisdiction of the US
counterclaim during the incidental proceedings stage. It simply remarked during
the oral pleadings on the merits that the Court could have enquired into its
objections at that stage of the proceedings. The Congo raised its objections to the
119

Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General
List No 116, paras 270272, www.icj-cij.org paras 273275.
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 39.

4.1 The Jurisdiction of the Court

115

admissibility of Ugandas counterclaims after the Court had made its decision on
the admissibility of the counterclaims and, although it invoked Article 79 of the
Rules of the Court, it is not clear whether it expected a suspension of the course of
proceedings until the Court would dispose of its objections. It may be argued that
objections to the admissibility of a counterclaim (qua preliminary objections to the
admissibility of an application instituting proceedings) because of the absence of
an objective requirement (for instance, the existence of legal interest) are more
likely to be dealt with at the stage of the Merits. This is because the text of Article
80 of the Rules does not include in the requirements of the admissibility of
counterclaim, admissibility with respect to its merits. At the same time, a
counterclaim as an autonomous claim has the position of an application even
though it is presented in the course of the same proceedings. Therefore, it may not
be excluded in principle that the Court may decide, should it consider it proper for
the sake of procedural economy, to dispose of this type of preliminary objection at
the stage of counterclaim proceedings.
Thirdly, the Order of the Court in Jurisdictional Immunities indicates that
objections to the jurisdiction and admissibility of a counterclaim are technically
preliminary objections in the sense of Article 79 of the Rules in a case where
jurisdiction has not been determined in a Judgment of the Court following Preliminary Objections proceedings or where the counterclaim manifestly falls outside the jurisdiction of the Court. At the same time, the stance adopted by the
Court in Oil Platforms and Congo v. Uganda indicates that objections to jurisdiction and admissibility are only functionally objections of not exclusively
preliminary character. If one accepts the position of Judge Higgins, no matter
how legitimate and rational this is, and determines the nature of objections to
jurisdiction and admissibility of a counterclaim as standing objections of not
exclusively a preliminary character, this implies that such objections would in
principle be preliminary objections the effect of which would be to suspend the
ordinary course of proceedings. However, the Court appears to have expressly
ruled this out in the Congo v. Uganda case. Therefore, while the Court has given
the impression that it treats objections to jurisdiction and admissibility of counterclaims as not preliminary objections in the formal or technical sense at the same
time it enquires into their substance before dealing with the merits of a
counterclaim.121
Fourthly, it appears that in Oil Platforms and Congo v. Uganda the Court has
opted for an as expeditious counterclaim proceedings as possible without, however, ignoring the objections of the principal applicant. Indeed, it seems very likely
that even though declining to enquire into objections to jurisdiction and admissibility of counterclaims by treating them as preliminary objections that interrupt
the normal course of proceedings the Court is conscious of the judicial economy
factor underlying the admission in principle of the right to present counterclaims.
In other words, the Court appears unwilling to introduce further incidental

121

Rosenne op. cit. supra n. 100, 897.

116

4 Admissibility of Counterclaims

proceedings on jurisdiction and admissibility in within the framework of the


already existing incidental proceedings of counterclaims. Thus, it may only be
assumed that the main proceedings would be marginalized and overridden by
successive incidental proceedings.
Fifthly, prior to the Jurisdictional Immunities Order the fact that a counterclaim
is evaluated solely on the basis of the two requirements laid down in Article 80 (1)
of the Rules would lead to the conclusion that the jurisdiction of the Court as one
of these requirements would not be conclusively determined at the stage of the
incidental proceedings. Indeed, in the oral pleadings on the Merits in the Oil
Platforms case Counsel for Iran expressed his concern on the matter by remarking
that the Court in its Order of 10 March 1998 recognized that it had a certain
measure of jurisdiction to entertain the US counterclaim because it ruled that it
possessed jurisdiction with regard to the US counterclaim in so far as the facts
presented by the USA may have violated the freedoms guaranteed in Article X (1)
of the 1955 Treaty. He insisted that the phrase in so far as had to
be understood as only thus far122 and that the position of the Court implied that
the issue of jurisdiction had not been settled with finality.123 In Counsels view the
equality of the parties requires that as in 1996 the Court ascertained the existence
or not of its jurisdiction in relation to Irans Application so it must do the same in
relation to the US counter-claim.124 If the Court were not to determine conclusively the question of jurisdiction of a counterclaim at the incidental proceedings
stage the question may arise whether jurisdiction as a requirement stipulated in
Article 80 (1) of the Rules has the position of prima facie jurisdiction as in the
proceedings of provisional measures. It is submitted that it does not. In the case of
provisional measures the Court deals with situations of urgency very early in the
proceedings of a case before it has had the opportunity to enquire into its jurisdiction. As Judge Sir Hersch Lauterpacht said in his separate opinion in the
Interhandel (Provisional Measures) case the Court at this early stage in the proceedings must satisfy itself that there exists an instrument that prima facie confers
jurisdiction on the Court and which does not incorporate any reservations
excluding the jurisdiction of the Court.125 It is not the same situation in the case of
counterclaims for they are not presented very early in the proceedings and the
Court may have already determined the existence of its jurisdiction in relation to
the principal application, as was the case in Oil Platforms. In this particular
situation, when a counterclaim is presented, this takes place within an already
determined framework of jurisdiction. Moreover, a counterclaim is nothing else
than an independent claim that could be brought by way of separate application.

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, 1314.
125
Interhandel Case (Switzerland v. USA) (Provisional Peasures), ICJ Rep. 1957, 107, 118119
(Judge Sir H. Lauterpacht separate opinion).

4.1 The Jurisdiction of the Court

117

Therefore, the presentation of a counterclaim does not merely seek protection of


the rights of the counterclaimant until the final settlement of the dispute but relief
on a claim against the principal applicant. This cannot be entertained by the Court
without the consent of both parties to its jurisdiction. In this respect, even though
jurisdiction to entertain the principal claim has already been established, this
appears as not being final under the terms of Article 80 (1). At the same time the
Court has conveyed the message that any objections to the jurisdiction with regard
to the counterclaim would not usher in a further incidental stage of preliminary
objections of the principal claimant against the counterclaim of the original
respondent. Thus, it is submitted that it is more accurate to speak of the Court
being satisfied at the counterclaims stage of the proceedings as having essential
rather than prima facie jurisdiction. By contrast, in Jurisdictional Immunities the
Court was faced with a different situation. In this case jurisdiction had not been
determined prior to the presentation of the counterclaim in a Judgment to which
the principles of finality and res judicata apply (Articles 59 and 60 of the ICJ
Statute). Therefore, an objection to the jurisdiction of the Court by the principal
applicant with respect to the counterclaim of the respondent constitutes a first
opportunity for the Court to examine whether a counterclaim falls within its
jurisdiction in circumstances of express contestation thereof. In the absence of a
prior Judgment on Preliminary Objections the Court performs its evaluation from
essentially a tabula rasa. There is no prior determination which would serve as a
prejudgment of either to dismiss the counterclaim for total lack of jurisdiction or
revisit the issue at the stage of the Merits by determining that for the purposes of
Article 80 of the Rules the counterclaim essentially falls within its jurisdiction.
In any event, the evaluation by the Court of a preliminary objection to jurisdiction
at the stage of counterclaim proceedings in Jurisdictional Immunities indicates that
it is moving away from treating all objections to jurisdiction as objections of nonpreliminary character. That an objection to jurisdiction may be considered at the
stage of the Merits may not be excluded, but it may be reasonably expected that
this will happen in accordance with Article 79 of the Rules.

4.1.5 Evaluation of the Jurisprudence of the Court


The approach of the International Court toward its jurisdiction as a requirement of
the admissibility of counterclaims is evinced only in two precedents, the Oil
Platforms case and the Jurisdictional Immunities case. Although this is hardly an
adequate basis to articulate a general conclusion it offers at least a preliminary
indication that the Court views jurisdiction for the purposes of evaluating the
admissibility of counterclaims in a very restrictive manner in the event of a prior
Judgment on preliminary Objections in the case at bar (viz. Oil Platforms case). Its
position in Oil Platforms suggests that the phrase if it [the counterclaim] comes
within the jurisdiction of the Court in Article 80 (1) of the Rules is perceived by
the Court in the sense of a counterclaim coming within the subject-matter

118

4 Admissibility of Counterclaims

jurisdiction of the principal claim as this is determined by the Court with respect to
the specific dispute before it. Therefore, it does not appear to indicate that
the jurisdiction requirement will be satisfied solely upon the basis of consent to the
jurisdiction of the Court on which the principal claim is premised leaving the issue
of the precise subject-matter of the counterclaim to be evaluated only by reference
to its direct connection with the subject-matter of the principal claim. The Court
appears to require an additional element to consent, that of the counterclaim falling
within the precise parameters of the object of the specific dispute as delineated by
the Court. In other words, it is not enough to establish consent ratione materiae on
one of the generally recognized bases of jurisdiction; it is further required of a
counterclaimant respondent to accommodate the subject-matter of its counterclaim
into the exact subject-matter of the principal claim upon which the Court has
determined to have jurisdiction in the specific case. This approach deviates considerably from the position adopted by the Permanent Court in the Chorzw
Factory case and has been strongly and rightly criticized by Judge Higgins in her
separate opinion in Oil Platforms. It narrows to a great extent the right of a
respondent to present a counterclaim within the parameters of the jurisdictional
basis invoked by the applicant that meets the requirement of direct connection but
does not fit exactly within the precise subject-matter framework of the principal
claim.
Moreover, in Oil Platforms the Court appears to draw a distinction between
jurisdiction for the purposes of counterclaims incidental proceedings and jurisdiction for the purposes of adjudicating upon the merits of a counterclaim. In this
respect, the Court treats the objections of an original applicant to its jurisdiction
with respect to a counterclaim not as preliminary objections to be disposed of at
the counterclaims stage but objections essentially of a non-preliminary character to
be dealt with at the stage of the merits.126 This conveyed the impression that this
indicates that at the counterclaims stage of the proceedings it is sufficient for the
Court to satisfy itself that it has not merely prima facie jurisdiction but that it
essentially but not necessarily finally or definitively has jurisdiction. At the same
time, a counterclaim is an independent claim the settlement of which also requires
the consent to the jurisdiction of the Court. This leads to the conclusion that the
Court is expected under Article 36 (6) of its Statute to ascertain ex officio the
existence of this consent. However, the Court has never in its practice with regard
to counterclaims so far referred to this provision of the Statute and this may
convey the impression that if the principal applicant fails to object to the jurisdiction of the Court with respect to the counterclaim a definitive and final
settlement of the issue is effected at the counterclaims stage of the proceedings.
Unless there is a situation where the principle of forum prorogatum applies (and
this depends exclusively on the conduct or the express statements of the principal
claimant) then the Court may appear to presume the existence of consent to its

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).

4.1 The Jurisdiction of the Court

119

jurisdiction to be seized with a counterclaim. This may render counterclaims a


very unpredictable procedure in practice with all it may entail about the willingness of States to submit disputes to the Court. On the other hand, bearing in mind
the rigor with which the Court approaches the matter of consent of States to its
jurisdiction it may simply be assumed that the Court does exercise its competence
de la competence with respect to counterclaims.
The course of action described above appears to have been overturned in the
Jurisdictional Immunities case. There the Court has dealt with the objection of
Germany as a preliminary objection at the counterclaim stage of the proceedings.
The Court has not explained this change of addressing the issue. This writer has
submitted that the absence of a prior determination of jurisdiction in a Preliminary
Objections Judgment appears to be important as well as the fact that the counterclaim of Italy manifestly fell outside the jurisdiction of the Court as this was
formulated by the 1957 European Convention. This development gives rise to two
further observations: First that the requirement of jurisdiction under Article 80 of
the Rules appears to constitute a formidable hurdle for a counterclaimant
respondent for the Court approaches jurisdiction with much greater rigor than
direct connection. Therefore, a principal applicant that wishes to have a
counterclaim overruled has more chances to succeed in its goal if it raises
objections to the jurisdiction of the Court. Secondly, if the objection to jurisdiction
is upheld then the principal applicant achieves a much wider goal: it is likely to be
protected in perpetuity from proceedings before the ICJ because the same claim
may not be brought against it by way of separate application. Thus, a state may be
shielded from an unwelcome litigation in the future if it succeeds in having a claim
against it rejected summarily127 as a counterclaim in proceedings where it is the
principal Applicant.128

4.2 Direct Connection


The direct connection with the subject-matter of the principal claim constitutes
the second requirement for the admissibility of a counterclaim in the main proceedings of a case. It is noteworthy that particular importance has been given to
direct connection as a restricting factor on presenting counterclaims in the sense

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.

120

4 Admissibility of Counterclaims

that had jurisdiction been the only requirement it would not be sufficient to prevent
a respondent from presenting any counterclaim it wished.129
The requirement of direct connection has its origin in the Chorzw Factory
case in which the Permanent Court ruled that the counterclaim presented by
Poland was juridically connected with the principal claim130; the requisite
connection between the principal claim of Germany and the Polish counterclaim
lay in the objection raised by Poland to the merits of the claim of Germany with
regard to the extent of the indemnity due to it.131 It is worth noting that the subjectmatter of Polands counterclaim was not premised on the Geneva Convention on
Upper Silesia that constituted the basis of both the principal claim and the jurisdiction of the Permanent Court, but on Article 256 of the Treaty of Versailles.
Moreover, under Article 40 of the Rules of Procedure in force at the time of the
judgment the Court had only to satisfy itself that both claim and counterclaim
came within its jurisdiction. It seems that the juridical connection requirement
was formulated as an acknowledgment of the fact that there was a substantive
connection between claim and counterclaim, although Germany did not object to
the jurisdiction of the Court on the grounds that the subject-matter of the counterclaim of Poland concerned a treaty other than the one the interpretation and
application of which the Court had jurisdiction to be seized with.132 The position
taken by the Permanent Court in this regard appears more flexible than the position
adopted by its successor with respect to the US counterclaim in the Oil Platforms
case.133
Be it as it may, the articulation of juridical link in Chorzw was espoused by
Anzilotti in his classical article134 and proposed as additional requirement for the
admissibility of counterclaims. This proposal was adopted, apparently under
Anzilottis influence, by the Court in the course of the revision of its Rules in
1936. Article 63 of the revised Rules added direct connection to the jurisdiction
of the Court as a requirement for the admissibility of counterclaims.135 It appears,
moreover, that connection to the subject-matter of the principal claim was viewed

129
Genet 1938, 165, 177178 expressed the view that direct connection appeared an
inflexible concept having the potential of restricting the making of counterclaims; id., 166167
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, 209210, 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. 4.1.2.2.
134
Anzilotti 1930, 870.
135
See supra Chap. 3.

4.2 Direct Connection

121

by the Judges of the Permanent Court in 1936 as a restricting factor rather than as
an enabling device to introduce counterclaims of substantive similarity under two
different instruments after having established the jurisdiction of the Court on only
one rather than on both of them. Therefore, the introduction of direct connection as
a requirement for the admissibility of counterclaims was perceived as extending
beyond the coordination of the Rules with the jurisprudence of the Court as it
existed at the time. It was viewed as a further limitation on the right to present
counterclaims. During the preparatory work of the 1936 Rules Judge Schcking
raised the issue of whether counterclaims could be presented even if they had no
connection with principal claim and referred to the silence of the original 1922
Rules on the matter.136 Judge Anzilotti replied that the question of connection had
been settled by the Court in one of its judgments, namely the Chorzw Factory
judgment.137 However, the import of direct connection was discussed in greater
detail after the submission of a draft provision on counterclaims that eventually
became Article 63 of the 1936 Rules of the PCIJ. Judge Negulesco, one of the
sponsors of the new provision, stated that the purpose of direct connection was to
exclude cross-action from the ambit of counterclaims. He illustrated this position by giving the example of the collision of two vessels belonging to two
different States and the presentation of a claim of damages by one of them that is
countered by a counterclaim of damages by the other. Judge Negulesco asserted a
very narrow concept of counterclaims on the basis of direct connection, namely
that they constituted the defence to the main proceedings and it was only in this
regard that they could be presented.138 Judge Fromageot, another sponsor, stated
that direct connection meant only a connection of fact, namely, that the same
factual basis would underlie both the principal claim and the counterclaim. He also
remarked that a connection in law could not be ruled outfor instance, two
opposing claims based on the same treaty provisionbut in this case the presentation of a demand by way of counterclaim would not be admissible.139
A rather less strict view was suggested by Judge Schcking, namely, that the
concept of direct connection was sufficiently flexible so that it would be articulated
by the jurisprudence of the Court and that it generally would mean a connection of
both fact and law.140 Furthermore, Judge Anzilotti remarked that to define precise
criteria of direct connection was a complex task better to be determined by the
Court itself in the course of its jurisprudence and only after the emergence of a
consistent approach to the matter by the Court should a definition of direct connection be attempted.141 Judge Fromageot returned to the matter and stated that

136
137
138
139
140
141

PCIJ Ser. D No. 2 (Third Addendum) (1936), 105.


Ibid.
PCIJ Ser. D No. 2 (Third Addendum) (1936), 111.
Id., 112.
Ibid.
Id., 113. Judge van Eysinga expressed the same view, ibid.

122

4 Admissibility of Counterclaims

direct connection meant that a remote connection would not suffice142 and that it
concerned the nature of the claim.143 Finally, Judge Wang expressed the view that
the requirement of direct connection sought to reconcile two opposing aspects
concerning the right to present counterclaims, namely, the unqualified admissibility of counterclaims and the total prohibition of counterclaims.144
The Permanent Court in its jurisprudence subsequent to the revision of the
Rules in 1936 did not embark upon defining the concept of direct connection
possibly because such connection was conspicuous in the cases where counterclaims were presented and at any event no objections were raised by the principal
claimant with regard to the requirement of direct connection. Thus, in the
Diversion of the Water of the River Meuse case the counterclaim presented by
Belgium concerned breaches of the same treaty and with regard to the same factual
context, namely, the use of the waters of the Meuse, that the interconnection
between the principal claim and the counterclaim was plainly evident. In its
judgment the Court simply remarked: As this claim [the counterclaim of
Belgium] is directly connected with the principal claim, it was permissible to
present it in the Counter-Memorial.145 Furthermore, in the Eastern Greenland
case the Court did not even acknowledge the existence of a direct connection
between the claim of Denmark and the counterclaim of Norway; again this would
appear superfluous as both claim and counterclaim concerned the same legal and
factual object, namely, title to sovereignty over the same territory.146
The present Court adopted verbatim Article 63 of the PCIJ Rules in the
counterpart Article 63 of the 1946 Rules and had the opportunity to enquire into
the direct connection requirement for counterclaims in the Asylum case. Peru
presented a claim in which it requested the Court to adjudge and declare as a
counter-claim under Article 63 of the Rules of Court, and in the same decision,
that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul
Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2,
paragraph 2, item 1 of the Convention on Asylum signed in 1928, and that in
any case the maintenance of the asylum constitutes at the present time a violation
of that treaty.147 The Court stated that Colombia had objected to the admissibility
of the counterclaim on the basis of Article 63 of the [1946] Rules of the Court
by asserting that it was not directly connected with the subject-matter of the
application. In particular, as the Court understood, Colombia argued that the

142

Ibid.
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.
143

4.2 Direct Connection

123

counterclaim of Peru had raised new issues, beyond the principal claim, and tended
to alter the grounds of the dispute. The Court rejected Colombias objection in
these terms:
The Court is unable to accept this view. It emerges clearly from the arguments of the
Parties that the second submission of the Government of Colombia, which concerns the
demand for a safe-conduct, rests largely on the alleged regularity of the asylum, which is
precisely what is disputed by the counter-claim. The connexion is so direct that certain
conditions which are required to exist before a safe-conduct can be demanded depend
precisely on facts which are raised by the counter-claim. The direct connexion being thus
clearly established, the sole objection of the admissibility of the counter-claim in its
original form is therefore removed.148

What may be inferred from the above ruling is that the direct connection
between claim and counterclaim is a connection in both law and fact. In the
particular case the second submission of Colombias claim with regard to the
alleged obligation of Peru to grant safe-conduct to Haya de la Torre presupposed
the lawfulness of granting asylum on the premises of the Colombian Embassy in
Lima. It was precisely the issue of the lawfulness of the specific grant of asylum in
the context of the same circumstances that was disputed by Peru in its counterclaim with the aim to divest itself of the obligation it allegedly incurred.
In the US Nationals in Morocco case France instituted proceedings against the
USA claiming inter alia the right to levy taxes on US nationals with particular
reference to the consumption taxes introduced by the Royal Decree (Shereefian
Dahir) of 28 February 1948. The United States presented a counterclaim according
to which, first, by virtue of Article 95 of the Act of Algeciras the value of goods
imported from the United States had to be assessed for the purposes of customs
duties on the basis of the goods purchase value in the USA and not in the
Moroccan market and, secondly, the US nationals enjoyed immunity from taxation
and, in particular, from the consumption taxes provided in the Decree of 28
February 1948.149 The Court did not make any pronouncements on the admissibility of the US counterclaim (jurisdiction and direct connection) possibly because
France raised no objections. It went on to reject the part of the counterclaim
concerning immunity from taxation on its merits and to uphold its part on the
assessment of the value of goods in the USA but not as the sole basis of determining their purchase value for customs purposes.150 It was in the jurisprudence of
the Court following the introduction of Article 80 of the Rules in 1978 where the
concept of direct connection was more extensively discussed.

148

ICJ Rep. 1950, 266, at 280281.


Case Concerning Rights of Nationals of the United States of America in Morocco (France v.
USA), ICJ Rep. 1952, 176, at 181.
150
Id., 203213. 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.
149

124

4 Admissibility of Counterclaims

In the Bosnian Genocide case Bosnia and Herzegovina objected to the counterclaim of Yugoslavia (that Bosnia had itself committed genocide against the
Bosnian Serbs) arguing that it lacked direct connection with the subject-matter of
Bosnias original application. Bosnia adopted a very narrow approach to the
concept of direct connection based on absolute factual and normative reciprocity.
It asserted that the facts underlying the counterclaim of Yugoslavia were completely different from the facts on which the claim of Bosnia was based because
they involved acts, perpetrators and victims that were unique in each set of facts.
Therefore, the examination of each set would have no bearing upon the judicial
analysis of the other and could not affect its outcome in any way whatsoever.151
Moreover, Bosnia argued that the specific nature of the obligations under the
Genocide Convention, namely, their non-reciprocal and erga omnes character
would, as a matter of principle, preclude Yugoslavia from requesting the Court to
find a relationship between the two claims and, in any event, the judicial finding of
a violation of the Genocide Convention was totally unrelated to the fact that a
second violation was committed.152
Yugoslavia expressed a broad view of direct connection and contended that the
principal claim and the counterclaim were premised on the same legal basis,
namely the Genocide Convention and the rules of general international law on
State responsibility; moreover, the relevant facts underlying Bosnias claim and
Yugoslavias counterclaim, though not identical, constituted part of the same
conflict and took place in the same territorial and temporal context.153 Furthermore, Yugoslavia argued it was not problematic that identical facts would support
both its defence against the allegations made by Bosnia of its responsibility for
acts of genocide committed by the Bosnian Serbs and its counterclaim, and agreed
with Bosnia that a breach of the Genocide Convention cannot justify another
breach of this Convention stressing at the same time that the subject of the dispute
between the parties was the existence of a breach of the Convention.154
The Court proceeded to elaborate for the first time on the concept of direct
connection:
the Rules of the Court do not define what is meant by directly connected; it is for
the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and
as a general rule, the degree of connection between the claims must be assessed both in
fact and in law; 155

The Court found with respect to connection in fact that in the case at bar the
claim and counterclaim rested on facts of the same nature that form part of the
same factual complex, namely facts that have taken place on the same territory
151
152
153
154
155

ICJ Rep. 1997, 243, at 252 para 11.


Id., 252253 para 12.
Id., 254 para 18.
Id., 255 paras 2021.
Id., 258 para 33.

4.2 Direct Connection

125

during the same period of time.156 As to connection in law the Court ruled that the
absence of reciprocity under the Genocide Convention was not determinative in
relation to legal connection between the principal claim and counterclaim; rather,
the critical factor was whether the parties pursued the same legal aim, which in this
case was the establishment of responsibility for breaches of the Genocide Convention.157 In other words, the connection in law rested not on the substantive or
primary obligations of the parties under the Convention but on the consequences
premised on the secondary rules of State responsibility because of the alleged
breach of the primary obligations.
The content of direct connection was discussed at some length by the two
Judges ad hoc for Bosnia and Yugoslavia, respectively, Judge Sir Elihu
Lauterpacht and Judge Kreca. Judge Kreca took the view that connection did
not signify identity of the subject-matter of the principal claim and counterclaim
as connection exists as a matter of common sense between things that exist separately: One thing cannot have a connection with itself for in that case it would
not be a separate thing, but just a relationship between things.158 As to direct
connection he stated that it was only a qualification that defined the quality of the
connection.159 He then expressed the view that the Court had tacitly given preponderance to connection in law over connection in fact and explained that
the former creates the basis of complementarity between claim and counterclaim
arising out of the same facts which may not exist in every case; the complementary
relationship established by connection in law would exclude the possibility of
cross-action in the course of the same proceedings and dispense with the subjective perception of the facts of the case which might be maintained by each
party.160 As a result he was in agreement with the Court on evaluating connection
in fact on the basis not of specifically identified or isolated facts but of a general
factual complex or factual background.161
Sir Elihu Lauterpacht pointed at the difference of approach of the parties toward
the concept of direct connection. He highlighted, on the one hand, the
restrictive approach adopted by Bosnia that argued for identity of victims and
perpetrators of genocide that would result in judicial analysis in the context of
which the facts in the counter-claim must have a relationship to, or must be of
help in, the examination of the facts of the original claim, and on the other, the
broad approach of Yugoslavia for whom it was sufficient that the counterclaim raised the question of genocide of the Serbs as one relevant to contradicting
facts presented by the Applicant as being relevant for attributing alleged acts to the

156
157
158
159
160
161

Id., para 34.


Id., para 35.
Id., 268.
Ibid.
Id., 268270.
Id., 270.

126

4 Admissibility of Counterclaims

Respondent.162 Judge Lauterpacht then agreed with the approach adopted by the
Court stating that the broad approach should be opted for because of the nature of
the concept of genocide as an accumulation of criminal acts (and not constituting a
single criminal act): It is sufficient that the acts invoked as constituting the basis
of the counter-claim should be directly connected with the principal claim by
reason of their occurrence in the same conflict. The policy underlying the prohibition of genocide favors the broader view since the particular obligations of
respect for human rights embodied in the Genocide Convention are ones which
rest with equal weight upon all persons involved.163
In the Oil Platforms case the Court adopted the same position on direct
connection that it had articulated in the Bosnian Genocide case. The counterclaim
presented by the United States alleged that Iran had breached its obligations under
Article X of the 1955 Treaty between Iran and the USA by laying mines and
attacking vessels in the Persian Gulf in the period 19871988 that were dangerous and detrimental to maritime commerce.164 Iran raised objections to the US
counterclaim with regard to its direct connection with the subject-matter of its
application alleging, first, lack of specificity which would enable the Court to
consider the existence of direct connection, and, secondly, the lack of direct
connection as such.165 In particular, Iran alleged that the US counterclaim constituted a general assertion of violation by Iran of the freedom of commerce and
navigation between the two States which failed to establish even remotely a legal
and factual connection between such a violation and the attacks on the platforms.166 Moreover, Iran argued that six of the incidents invoked by the USA did
not concern vessels engaged in commerce or navigation between the two States,
the seventh incident involving the tanker Texaco Caribbean related to a vessel that
was not US-flagged and only two incidents involved US vessels (the Bridgeton and
the Sea Isle City) on the assumption (disputed by Iran in relation to the requirement of jurisdiction) that there was a sufficient legal link between Article X (1) on
freedom of commerce (the sole basis of the jurisdiction of the Court to hear Irans
claim) and Articles X (35) on freedom of navigation of the 1955 Treaty.167
The USA countered that the requirement of direct connection in Article 80 of
the Rules referred to the subject-matter of the claim not the claim itself;
therefore a counterclaim need not be identical (a mirror image) to the principal
claim or be premised on precisely the same facts but be sufficiently linked to the
facts on which the principal claim rests.168

162
163
164
165
166
167
168

Id., 281.
Id., 282.
ICJ Rep. 1998, 190, at 193 para 4.
Id., 197, paras 1516.
Id., para 17.
Id., para 18.
Id., 200201 para 23.

4.2 Direct Connection

127

The Court repeated its ruling of the Bosnian Genocide counterclaim Order
(quoted supra) and found that in the case before it, first, the claims of Iran and the
USA rested on facts of the same nature; secondly, they formed part of the same
factual complex since they allegedly occurred in the same territorial context (i.e.
the Persian Gulf) during the same period of time (i.e. the final stage of the Iran-Iraq
war); thirdly, the USA suggested its intention to rely on the same facts so as to
deny the allegations of Iran and obtain judgment against it; and, finally, both
parties pursued the same legal aim, namely, the responsibility for violations of the
1955 Treaty.169 On the basis of this reasoning the Court reached the conclusion
that the counterclaim of the United States was admissible.
Judge ad hoc Rigaux took the view that the jurisprudence of the PCIJ and the
ICJ at the moment of the deliberation of the Court indicated that the requirement of
direct connection should be applied restrictively.170 He explained that the
restrictive approach required that connection should be very close, namely, when
both claim and counterclaim are based on the same facts or when the counterclaim
arose from the same contract or facts upon which the principal claim was premised.171 Expressing a very extreme version of the restrictive approach, he stated
that in the dispute between Iran and the USA there was no unity of action
because there was a factual and qualitative difference between the attacks against
oil platforms and the attacks against vessels sailing in other parts of the Persian
Gulf.172
In the Cameroon v. Nigeria case the original Applicant (Cameroon) raised no
objections to Nigerias counterclaims that alleged the responsibility of the former
for a series of armed incidents along the disputed border between the two States.
The Court ruled that the counterclaims were admissible as directly connected with
the subject-matter of Cameroons claim. The Courts Order stated that the
counterclaims were premised on facts of the same nature as Cameroons claims,
namely, all the acts that occurred along the common border between the two States
and that both claim and counterclaim pursued the same legal purpose, which was
the establishment of responsibility and the determination of reparation.173
In the Congo v. Uganda case the Respondent, Uganda, presented three counterclaims against the principal Applicant, the Democratic Republic of the Congo
(the DRC). First, it alleged that the Congo was responsible for acts of aggression
against it for the period 19942001; secondly, that the Congo was responsible for
attacks on the Embassy of Uganda in the Congolese capital Kinshasa and the
maltreatment of the diplomatic personnel and other Ugandan nationals; and,
thirdly, that the Congo was responsible for violations of the Lusaka Agreement of

169
170
171
172
173

Id., 204205 paras 3738.


Id., 227230.
Id., 234.
Id., 235.
ICJ Rep. 1999, 983, at 985.

128

4 Admissibility of Counterclaims

10 July 1999 concerning the termination of the conflict in the Congo between the
central Government and various dissident armed groups.
The Congo objected to all three counterclaims arguing that they lacked direct
connection with the subject-matter of the principal claim. At the outset it introduced a general objection for lack of direct connection maintaining that in principle counterclaims should not only be connected in fact and in law with the
principal claim but with the defence on the merits as well.174 It then raised specific
objections to each of the three counterclaims. With regard to the first of Ugandas
counterclaims, the Congo asserted that it was directly connected to the principal
claim only with regard to the alleged acts of force occurring in the period between
May and August 1998. The Congo maintained that the acts of force that allegedly
took place prior to May 1998 were not directly connected because they occurred
prior to the creation of the DRC and not during the same period as the events in its
application.175 Moreover, with respect to the counterclaim concerning the attacks
on the Ugandan Embassy, Ugandan diplomatic staff and nationals, Congo argued
that they lacked connection with the principal claim either in law or in fact because
they were not facts of the same nature and the parties did not pursue the same legal
aim.176 Finally, the Congo objected to the direct connection of the counterclaim
concerning alleged violations of the Lusaka Agreement because they did not
constitute facts of the same nature. Moreover, as the Agreement had not been
concluded at the time of the DRCs application, the third counterclaim related to
legal rules manifestly different from those constituting the basis of the DRCs
application and would result in the broadening the subject-matter of the dispute.177
In its Order of 29 November 2001 the Court began by making a general pronouncement on the requirement of direct connection essentially repeating its
position in the Bosnian Genocide case in 1997:
the Rules of Court do not however define what is meant by directly connected; it is
for the Court to assess whether the counter-claim is sufficiently connected to the principal
claim, taking into account the particular aspects of each case; as a general rule, whether
there is the necessary direct connection between the claims must be assessed both in fact
and in law; 178

The Court then proceeded to consider each of Ugandas counterclaims separately. With respect to the first counterclaim the Court ruled that it was admissible
because both it and the principal claim related to facts of the same nature, namely
the use of force and the provision of material assistance to armed bands; both claim
and counterclaim constituted part of the same factual context because they related
to a conflict which had been in progress between the two States since 1994; and,
finally, both claim and counterclaim were connected in law as both States pursued
174
175
176
177
178

ICJ Rep. 2001, 660, at 667 para 10.


Id., 667668 paras 1112.
Id., 668 para 13.
Id., 669670 para 14.
Id., 678 para 36.

4.2 Direct Connection

129

the same legal aims, namely, the establishment of their respective responsibility.179
Moreover, with respect to the second counterclaim the Court ruled that it was
admissible because the attacks on the Embassy of Uganda, its diplomatic personnel
and its nationals took place after the alleged invasion of the DRC by Uganda in
1998 and each party held the other responsible for various acts of oppression that
accompanied the use of force. Consequently, the facts underlying claim and
counterclaim constituted facts of the same nature, they formed part of the same
factual complex (namely, the conflict in the DRC) and the parties pursued the same
legal aims.180 Finally, the Court rejected the third counterclaim of Uganda as
inadmissible for lack of direct connection with the principal claim and in this
respect had the opportunity to elaborate further on the concept of connection in both
fact and law. The Court pointed that the third counterclaim of Uganda referred not
to facts related to the conflict as such but to methods for resolving the conflict
whereas the principal claim of the DRC had as its subject-matter the alleged
responsibility of Uganda for acts that occurred in the course of the conflict between
the two States. As a result, the counterclaim of Uganda was premised on facts of a
different nature and both claim and counterclaim did not form part of the same
factual complex. Furthermore, the Court found that the parties did not pursue the
same legal aims because each of the parties sought to establish the responsibility of
the other for violation of different rules; namely, the DRC aimed at having the Court
to adjudge that Uganda was responsible for violations of the rules on the non-use of
force, non-intervention, the humanitarian law of armed conflict and the protection
of human rights, while Uganda aimed at establishing the responsibility of the DRC
for violations of the Lusaka Peace Agreement.181
In his Declaration Judge ad hoc Verhoeven expressed the view that the Court
should not apply the criteria concerning direct connection in a mechanical manner, losing sight of the rationale underlying the right to present counterclaims,
namely procedural economy and better administration of justice, Also, he warned
against the adoption by the Court of a liberal approach toward the evaluation of the
direct connection requirement by drawing a link between the requirement of connection with the consent of the parties to the jurisdiction of the Court.182
At the stage of the Merits of the Congo v. Uganda case the Court revisited the
objections of the DRC to the first and second counterclaims of Uganda as preliminary objections to admissibility with respect to the merits of these counterclaims. The objection raised by the DRC against the first counterclaim of Uganda
was partial as it concerned only the contention that Zaire (as the name of the country
then was) had provided material assistance to and failed to exercise vigilance in
preventing the armed activities of anti-Ugandan guerrilla organizations from its

179
180
181
182

Id.,
Id.,
Id.,
Id.,

678679 paras 3839.


679680 paras 4041.
680 paras 4243.
684 (Judge ad hoc Verhoeven, declaration).

130

4 Admissibility of Counterclaims

territory in the period between 1994 and 1997.183 The DRC argued that Uganda had
renounced its right to invoke the responsibility of the DRC because, first, it had
neither attributed responsibility to Zaire, nor had it expressed any intention of doing
so; furthermore, the friendly relations between the two countries and their close
cooperation in security matters between May 1997 and July 1998 led the DRC to
reasonably believe that no such claim would ever be brought by Uganda.184 The
Court at the outset made clear that the Order on the Ugandan counterclaims of
November 29, 2001 does not deal with questions of admissibility outside the scope
of Article 80 of the Rules185 and then rejected the objection ruling that there had
been nothing in the conduct of Uganda that suggested either an express or implicit
and unequivocal waiver of its right to bring a counterclaim asserting the responsibility of the DRC; moreover, the Court pointed out that the existence of friendly
relations between two States does not affect their legal rights.186
As to the second counterclaim of Uganda, the DRC contented that it was
inadmissible with respect to its alleged responsibility for violations of the Vienna
Convention on Diplomatic Relations (1961) (elaborated in the Rejoinder of
Uganda) because by invoking it Uganda breaks the connection with the principal
claim, namely the alleged violation of the obligations of non-use of force, nonintervention and the rules of the Hague and Geneva Conventions on the protection
of individuals and property in time of armed conflict and military occupation.187
The Court, again, rejected the objections of the DRC in so far as its alleged
responsibility under the 1961 Vienna Convention was concerned, which involved
the forcible take-over of the Ugandan Embassy in the capital of the DRC,
Kinshasa, the expropriation of movable property, the maltreatment of individuals
on the Embassy premises and the maltreatment of Ugandan diplomats at the
Kinshasa international airport.188 The Court reasoned that the counterclaim of
Uganda on the basis of the 1961 Vienna Convention was directly connected with
and did not widen the subject-matter of the dispute as this was delineated by the
principal claim for in its Order on counterclaims of November 29, 2001 it found
that direct connection existed because each Party holds the other responsible for
various acts of oppression allegedly accompanying an illegal use of force and
each Party seeks to establish the responsibility of the other by invoking, in

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 293294.
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 327332. 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.

4.2 Direct Connection

131

connection with the alleged illegal use of force, certain rules of conventional or
customary law relating to the protection of persons and property.189 In an
interesting passage of the Judgment on the Merits of 19 December 2005 the Court
adopted a very flexible and broad position on what it considered to constitute a
connection with the subject-matter of the principal claim, namely, the alleged
violations by Uganda of the jus ad bellum and the jus in bello. The Court ruled that
its decision in the counterclaim proceedings was
sufficiently broad to encompass claims based on the Vienna Convention on Diplomatic
Relations, taking note that the new claims are based on the same factual allegation, i.e. the
alleged illegal use of force. The Court was entirely aware, when making its Order, that the
alleged attacks were on Embassy premises. Later reference to specific additional elements,
in the context of an alleged illegal use of force, does not alter the nature or the subjectmatter of the dispute. It was the use of force on Embassy premises that brought this
counter-claim within the scope of Article 80 of the Rules, but that does not preclude
examination of the special status of the Embassy. counter-claims do not have to rely on
identical instruments to meet the connection test of Article 80 190

This passage echoes the Judgment of the PCIJ in the Chorzw Factory case on
the matter of connection; it is submitted, however, that it goes a step further in that it
has allowed the admissibility of a counterclaim that appears to be premised on facts
not immediately but incidentally connected with the alleged violations of Article 2
(4) of the Charter and of the law of armed conflict. The fact that the Ugandan
Embassy premises were forcibly occupied by DRC troops does not automatically or
necessarily render this episode an integral part of the facts constituting an alleged
breach of the prohibition of the use of force or a violation of the laws of armed
conflict as the literal meaning of the term direct connection may indicate.191 It was
rather part of the general context of relations that developed between the two States
as a result of the breaches alleged in the principal claim. Be it as it may, the fact that
the breaches of the 1961 Vienna Convention were to a certain degree peripheral to
the subject-matter of the DRC claim did not appear to weigh on the ruling of the
Court. It, moreover, exposes a discrepancy in rigor by which the Court treats the
requirements of jurisdiction and direct connection under Article 80 of the Rules.192

4.2.1 Evaluation of the Jurisprudence of the Court


The practice of the Court with regard to the requirement of direct connection of a
counterclaim with the subject-matter of the principal claim warrants a number of
observations.

189

ICJ Rep. 2001, 660, at 679, para 40.


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.
190

132

4 Admissibility of Counterclaims

First, the Court reserves a margin of discretion with respect to the existence of
direct connection between principal claim and counterclaim.193 This is essentially
an exercise in appreciation of the particular aspects of each specific case. In this
respect the deliberate lack of definition of direct connection in the Rules, as
suggested by Judge Anzilotti in the 1930s, has allowed the Court to develop a
framework of evaluation that it has consistently applied in incidental proceedings
under Article 80 of its Rules.
Secondly, the starting point of evaluation is that direct connection must exist
both in fact and law.194 Moreover, these two criteria are applied cumulatively.195
Thirdly, with respect to connection in fact the Court appears to adopt a broad
approach. It does not require identity of facts underlying both claim and counterclaim as Judge Negulesco had proposed. To do otherwise would narrow considerably the right to present counterclaims as the same fact would be required to
constitute the basis of both claim and counterclaim like, for instance, a collision of
vessels on the high seas (the example used by Judge Negulesco). The result, as it
becomes clear from the views expressed in relation to the counterclaim of
Yugoslavia in the Bosnian Genocide case, it would be impossible to a respondent
to address by way of counterclaim alleged violations by the principal applicant of
the same treaty the alleged breach of which constitutes the subject-matter of the
main proceedings against it.196 By contrast, the Court seeks to ascertain (a) that the
facts are of the same nature and (b) form part of the same factual complex.
Facts of the same nature appear to be events of the content which falls into the
same type of conduct irrespective of the identity of actor and its repercussions on
people or objects, or the same type of situation. Thus, in the Bosnian Genocide
case the Court did not accept the contention of Bosnia that the facts underlying the
counterclaim of Yugoslavia were totally different from the facts on which its
application was premised, in the sense that the former set concerned alleged acts of
genocide with specific perpetrators and specific victims whereas the counterclaim
related to acts of genocide involving different perpetrators and victims.197 By
contrast it treated both sets of facts as relative to the same type of alleged conduct,
namely, the issue of the violation of the Genocide Convention. Moreover, in the
Oil Platforms case both the destruction of the Iranian oil platforms and the alleged
attacks by Iran on commercial vessels in the Persian Gulf were facts that concerned conduct involving the use of force. Finally, the rejection by the Court of the
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., 360361, 364365.
194
Genet 1938, 166167 taking the view that connection is manifested by the fact of unity of the
object of litigation.
195
Contra Salerno 1999, 349; Yee 2006, 913.
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.

4.2 Direct Connection

133

third counterclaim of Uganda in the Congo v. Uganda case throws more light into
the meaning of facts of the same nature. In this case the Court treated the
alleged violations of the Lusaka Agreement as facts concerning a type of situation
(namely, the process of resolving the conflict in the Congo) different from the acts
of force imputed to Uganda in the DRC application which related to the actually
ongoing conflict in the Congo. As for the criterion of the same factual complex
it appears from the jurisprudence of the Court that the facts underlying claim and
counterclaim must have taken place within the same temporal and territorial setting.198 Thus, in the Bosnian Genocide case this setting consisted of the conflict on
the territory of Bosnia and Herzegovina during the period from 1992 to the date
of the application in 1993; in the Oil Platforms case it was the Iran-Iraq war of
19801988 and, in particular, the maritime phase of the conflict in the Persian Gulf
during the last 2 years of the war (19871988); in the Cameroon v. Nigeria case
the factual complex comprised the incidents that took place along the common
frontier of the two States over an extended period of time; and, in the Congo v.
Uganda case it was the conflict that occurred on the territory of the DRC in the
period from 1994 to the date of the application. It appears that again the criteria of
factual connection must apply cumulatively, for there may exist facts of the same
nature that do not form part of the same factual complex. In this case what would
be presented as counterclaim would in reality be a cross-action, a contingency that
has been expressly excluded by the Court.
Fourthly, with regard to connection in law the Court has adopted the position
that this is established if the parties pursue the same legal aim. According to the
Court this consists in seeking the establishment of the responsibility, on the one
hand, of the respondent through the institution of the main proceedings by the
original applicant and, on the other, of the latter through the presentation of the
counterclaim by the respondent. However, the responsibility of the other party
which constitutes the purpose of both claim and counterclaim must be the result of
the violation of obligations based on the same treaty or rule of customary law.199
Thus, in the Congo v. Uganda case the Court rejected the third counterclaim of
Uganda alleging the breach by the Congo of obligations arising from the Lusaka

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 Ugandas 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, 351352.

134

4 Admissibility of Counterclaims

Agreement as not pursuing the same legal aim as the original application in which
the Congo sought to establish the responsibility of Uganda for violations of the
rule of the prohibition of the use of force.

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 19961997, No
51, p 216
Anzilotti D (1930) La Demande Reconventionelle en Procdure 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 Procdure de la Cour Permenente de
Justice Internationale. Rvue de Droit International et de Lgislation Compare 19:145
Hudson MO (1943) The Permanent Court of International Justice 19201942. Macmillan,
New York
Lauterpacht Sir H (1958) The Development of International Law by The International Court,
London. Reprinted in 1982 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 Courts Jurisdiction through Counter-claims and
Third-Party Intervention. Geo Wash Intl 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 Jos 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 19202005 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 Procdure 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 19601989, 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

Chapter 5

Procedure

The procedural steps that a respondent is required to take in order to present a


counterclaim are provided in Article 80, paragraphs 2 and 3, of the Rules of the
International Court of Justice. Moreover, other aspects of procedure are regulated
by applying other provisions of the Rules of the Court by analogy. In this chapter
the present author shall deal with certain procedural aspects of counterclaims that
have arisen in the practice of the Court: (1) the presentation of counterclaims in the
Counter-Memorial of the respondent State; (2) the question of the equality of the
parties in the course of the counterclaims procedure; (3) the issue of holding or not
oral hearings in case of objections to the admissibility of counterclaims; (4) the
possible delay in the main proceedings because of the presentation of counterclaims; (5) the notification of counterclaims to third States; and (6) the withdrawal
of counterclaims.

5.1 Presentation of Counterclaims in the Counter-Memorial


The relevant provisions of the Rules of the Permanent Court and the present Court
stipulate that counterclaims may be presented by a respondent State in its CounterMemorial. Thus, Article 40 of the 1922 Rules of Procedure of the PCIJ provided
that a Counter-Case (i.e., a Counter-Memorial) shall contain, inter alia, submissions which may include counterclaims provided that the latter came within the
jurisdiction of the Court. Article 63 of the Rules of the Permanent Court as they
were amended in 1936 provided that a counter-claim may be presented in the
submissions of the Counter-Memorial provided that it came within
the jurisdiction of the Court and was directly connected with the subject-matter of
the original application. This provision was maintained unchanged in the Rules of
Procedure of the International CourtArticle 63 (1946 Rules) and Article 68
(1972 Rules)until 1978. Article 80 (2) of the Rules of the Court currently in
force which were adopted in 1978 and amended in 2000 provides:
C. Antonopoulos, Counterclaims before the International Court of Justice,
DOI: 10.1007/978-90-6704-790-6_5,
 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

135

136

5 Procedure

A counter-claim shall be made in the Counter-Memorial and shall appear as part of the
submissions contained therein.

The question that arises is whether a counterclaim must be presented in the


Counter-Memorial as a matter of obligation or, conversely, whether a respondent
has the right to present a counterclaim at a stage prior to or even subsequent to the
filing of the Counter-Memorial. A textual interpretation of the Rules of the Permanent Court and the International Court, until 1978, appears to leave the matter
open. However, the preparatory work that led to the revision of the Rules of the
Permanent Court in 1936 reveals that, whereas the presentation of a counterclaim
prior to the filing of the Counter-Memorial might be procedurally admissible this
would probably not be the case at a subsequent stage in the proceedings. Toward
the final stages of the revision process Judge Anzilotti addressed the issue of
whether the wording of Article 63 of the Rules introduced an obligation to present
a counterclaim in the Counter-Memorial depriving a respondent to do so earlier.1
In his view to exclude the possibility of presenting counterclaims earlier than the
filing of the Counter-Memorial would be contrary to the interests of the parties
and of the Court itself. The matter was pursued further by Judge Schcking who
raised the point that the wording of the proposed Article 63 did not make clear
whether a counter-claim, which fulfilled the conditions laid down therein, could be
presented at a stage of the proceedings subsequent to the presentation of the
Counter-Memorial.2 The President of the Court replied to Judge Schcking that
such a claim might be filed in the form of an additional application, which the
Court might or might not join to the main application.3 Moreover, Judge van
Eysinga suggested, in agreement with Anzilotti, that the presentation of counterclaims should not be restricted to the Counter-Memorial but be allowed until the
end of the written proceedings, this presumably being the filing of the CounterMemorial. The only conceivable way that a counterclaim could be presented prior
to the Counter-Memorial is by separate application concerning the same subjectmatter as the original application with the request that this is joined to the main
proceedings and provided that there is the requisite jurisdictional basis to seize the
Court.4 Thus, an application by State A instituting proceedings against State B
asserting title to territorial sovereignty over a particular piece of land may be
countered by a separate application of State B against A asserting sovereignty over
the same piece of territory. Also, an application by State C against State D
claiming reparation arising from the alleged breach of a bilateral treaty on commerce and navigation may be met by a separate application of State D against C
advancing the same claim. Be it as it may, the wording of Article 80 (2) of the
present Rules of the Court appears to stipulate in mandatory terms that counterclaims shall be made in the Counter-Memorial and shall appear as part of the
1
2
3
4

PCIJ Ser. D Third Addendum to No 2 (1936), 440.


Id., 441.
Ibid.
See Anzilotti 1930, 875.

5.1 Presentation of Counterclaims in the Counter-Memorial

137

submissions therein. The text of this provision appears to imply, in other words,
that the presentation of counterclaims shall be made only in the Counter-Memorial
and not before or after its filing.5 This is supported by the express reference of the
Court to Article 80 as amended in 2000 in the Jurisdictional Immunities Order:
nor is it disputed that the claim has been made in the Counter-Memorial and
[appears] as part of the submissions contained therein in accordance with Article
80, paragraph 2, of the Rules of Court.6
There has been to date no case either before the Permanent Court or the
International Court in which a counterclaim was presented at a stage earlier than
the filing of the Counter-Memorial. By contrast all counterclaims that have been
considered by the Court have been presented in the Counter-Memorial. At the
same time the practice of the Court as well as the litigants points at the conclusion
that counterclaims presented or modified at a stage subsequent to the filing of the
Counter-Memorial will probably not be entertained by the Court. The present
writer uses the word probably because the Court far from being explicit it has
rather been silent on the matter.
In the Asylum case Peru presented a counterclaim in its Counter-Memorial in
which it requested the Court [T]o adjudge and declare as a counter-claim under
Article 63 of the Rules of the Court, and in the same decision, that the grant of
asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre
was made in violation of the Article 1, paragraph 1, and Article 2, paragraph 2,
iitem I (inciso primero) of the Convention on Asylum signed in 1928. However,
in the oral proceedings Peru modified its counterclaim by adding at the end of the
sentence the phrase and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty.7 The Court took note of this
later-in-time addition but considered the counterclaim in its original version and
rejected it upon its merits8; it did not evaluate the counterclaim in its expanded
form which was presented for the first time in the oral proceedings.
There has only been one case where a counterclaim appears to have been
presented in its entirety at a stage of the proceedings subsequent to the filing of the
Counter-Memorial. In the final round of oral pleadings in the Djibouti versus
France case France appears to have raised a counterclaim alleging a violation by
Djibouti of the 1986 Convention on Mutual Assistance in Judicial Matters.
Counsel for France argued that the investigation in the case of the death of Judge
Bernard Borrel (that constituted the subject of the proceedings before the Court)
and the investigation for subornation of perjury initiated against two high officials
of Djibouti were two separate cases. He then argued that the summonses served on
the latter to appear as witnesses had been transmitted to the Ministry of Justice of

Rosenne 2000a, 458.


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 13.
7
Asylum Case (Colombia-Peru), ICJ Rep. 1950, 266, at 280.
8
Id., 280 et seq.
6

138

5 Procedure

Djibouti in accordance with the 1986 Treaty and that Djibouti failed to respond.
Counsel for France then asserted that [B]y refusing to respond to them, the
Republic of Djibouti failed in its obligations under the Convention and, in particular, those resulting from paragraphs 1 and 2 of Article 3 By prohibiting the
two individuals concerned from responding to the summons by the judge in
Versailles, with no legal justification whatever, the Republic of Djibouti clearly
acted in breach of the 1986 Convention on Mutual Assistance, by which it claims
to set such store 9 In its Judgment of 4 June 2008 the Court passed over in
silence the above allegation made by France.
Moreover, it may not be deduced with certainty that the Court will allow the
presentation of counterclaims at a later stage from the filing of the CounterMemorial even if the counterclaimant respondent expressly reserves the right to
introduce further claims. The issue in this regard is whether a decision on the
admissibility of the initial counterclaim is sufficient to cover all subsequent
counterclaims. In the Oil Platforms case Iran expressly disputed in principle the
right reserved by the USA to introduce further instances of attacks by Iran against
US vessels in the Persian Gulf during the final year of the IranIraq war by
asserting that no counter-claim may be filed after the submission of the CounterMemorial; however, it also argued in case that the Court might allow the presentation of further US claims following the submission of the Counter-Memorial
that in any event, in the case of each such instance which the United States may
subsequently seek to introduce, it would be necessary to apply the test of
admissibility under Article 80 of the Rules.10
In three out of five cases11 of presentation of counterclaims which the Court
considered in the context of the incidental proceedings introduced by Article 80 of
the 1978 Rules the Court expressly has taken note of the fact that the principal
claimant has not disputed that the counterclaim or counterclaims were presented in
the Counter-Memorial and as part of the submissions therein.12 In the fourth case,
the Congo v. Uganda, the Court dealt with an objection raised by the Congo
according to which the counterclaims presented by Uganda in its CounterMemorial did not fulfill the requirement set by Article 80 (2) that the counterclaims had to appear as part of the submissions in the Counter-Memorial.
9

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Pleadings,


CR 2008/7 (translation), Public Sitting of 28 January 2008, 4344, paras 26, 28.
10
ICJ Rep. 1998, 190, at 197 para 15.
11
Namely, the Bosnian Genocide Case, the Oil Platforms Case and the Cameroon v. Nigeria
Case.
12
Case Concerning 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, ICJ Rep. 1997, 243, 258 para 32; Case Concerning Oil Platforms (Iran v. USA) (CounterClaim), Order of 10 March 1998, ICJ Rep. 1998, 190, 203 para 32; Case Concerning the Land and
maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Order of 30 June
1999, ICJ Rep. 1999, 983, 985; Jurisdictional Immunities of the State (Germany v. Italy) (CounterClaim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf,
6, para 13.

5.1 Presentation of Counterclaims in the Counter-Memorial

139

According to the Congo the counterclaims of Uganda were vague (perfunctory


and incomplete) because it could not be determined from the Counter-Memorial
what precisely it was requested from the Court to adjudge and declare. The Congo
took particular issue with respect to the assertion of Uganda that it would reserve
the issue of reparation in relation to the Counter-claims for a subsequent stage of
the proceedings; it argued that the right to reparation as opposed to the modalities
of reparation should have been expressly included as a claim in the CounterMemorial because otherwise Uganda would not be entitled to present any
counterclaims at a later stage.13 In this case the Congo asserted that the Court
should either presume a claim not appearing in the submissions or to dismiss
those submissions as defective.14 The Court in its Order rejected the objection of
the Congo in these terms:
Whereas Ugandas counterclaims 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 the 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; 15

What may be inferred from the above passage is that the Court is prepared to
excuse a measure of indeterminacy in the formulation of counterclaims but it is not
inclined to accept an extensive or manifest deviation from the requirements of
Article 80 (2) of the Rules. The Court did not explain what would constitute a
permissible deviation from those requirements. The only logical conclusion that
may be drawn is that the counterclaims must be included in the Counter-Memorial
but their analytical exposition may not necessarily appear in the final section
thereof which includes the submissions of the respondent State. Moreover, the
Court upheld Ugandas request to defer the matter of reparation with respect to the
counterclaims at a later stage of the proceedings. The Court appears to have taken
the view that a claim of reparation had been made, even though perfunctorily, and
the only matter remaining to be settled was to determine the modalities of that
reparation. However, this is not the conclusion that would have been drawn
beyond any doubt from the formulation of this specific aspect of Ugandas
counterclaim and indeed it has not been the conclusion reached by the Congo.
A similar situation arose in the Navigational Rights (Costa-Rica v. Nicaragua)
case where in its Reply Costa-Rica took issue with two reservations of right that
were included in the Counter-Memorial of Nicaragua. In particular, Nicaragua
reserved the right, first, to claim that the Colorado River (of which the San Juan
River that constituted the subject of the proceedings was a tributary) was an

13

Case Concerning Armed Activities on the Territory of the Congo (D. R. Congo v. Uganda),
Order of 29 November 2001, ICJ Rep. 2001, 660, 665 paras 57. It appears that the principal
reason for this objection was that the counterclaims of Uganda were not analytically included in
the submissions but in Section C, Chapter XVIII of the main text of its Counter-Memorial.
14
Id. para 7.
15
Id., 677 para 33.

140

5 Procedure

international waterway subject to general international law and not to a particular


treaty regime, if the Court determined the claims of Costa-Rica on rules of
international law beyond those included in bilateral agreements. Secondly, Nicaragua reserved the right to bring claims against Costa-Rica for ecological damage
to the waters of the San Juan River and the diversion of its traditional water flow.16
Costa-Rica asserted in no uncertain terms that These reservations are of course
not counter-claims. Nicaraguas right to bring a counter-claim expired with the
filing of NCM [Nicaraguas Counter-Memorial].17 Moreover, Costa-Rica also
pointed out that even if these reservations had constituted counterclaims the
requirement of direct connection was lacking.18 In the oral proceedings Counsel
for Costa-Rica returned to the matter and stressed that those reservations are not
counter-claims nor do they relate to or arise from any relief sought by Costa-Rica.
If Nicaragua wishes to present these claims or to sustain any argument based
upon them, they ought to have been presented properly in these proceedings or in a
new Application.19 The Court in its Judgment of 13 July 2009 made no reference
to the reservations of Nicaragua. Moreover, Nicaragua in the submissions in its
Counter-Memorial, its Rejoinder as well as in its final submissions at the end of the
hearings requested the Court to make a declaration in its Judgment on five issues.
Points three and five of Nicaraguas request referred, respectively, to the obligation
of Costa-Rica to comply with all reasonable charges for modern improvements in
the navigation of the river with respect to its situation in 1858 and to the right of
Nicaragua to dredge the San Juan River.20 The Court in its Judgment of 13 July
2009 ruled that on the one hand it was doubtful whether the entirety of Nicaraguas
request for a declaration could be considered as formal submissions because it
requested that the declaration be included in any part of the Judgment, not
exclusively in the operative part.21 At the same time the Court pointed with respect
to points (iii) and (v) of Nicaraguas request for a declaration that on the
assumption that they constituted counter-claims, Costa-Rica had disputed their
admissibility on the basis of lack of direct connection with the subject-matter of its
application.22 The Court did not deal with the issue of whether the third and fifth

16

Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v.
Nicaragua), Reply of Costa-Rica, vol. 1, 15 January 2008, 7, para 1.16, notes 35, 36.
17
Id. para 1.17.
18
Id. 7 (n. 37): Quite apart from the requirement of timeliness, Article 80 requires a counterclaim to be directly connected with the subject-matter of the claim of the other party: see
Article 80 (1). Nicaraguas reservations even if they had been timely presented as counterclaims would not have satisfied this requirement.
19
Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v.
Nicaragua), CR 2009/3, Public Sitting held on 3 March 2009, 69 para 26.
20
Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v.
Nicaragua), Judgment of 13 July 2009, para 153.
21
Ibid.
22
Id. para 155. Also see Reply of Costa-Rica, vol. 1, 15 January 2008, 203206, paras
5.265.31.

5.1 Presentation of Counterclaims in the Counter-Memorial

141

part of Nicaraguas request for a declaration were indeed counterclaims in the


sense of Article 80 of the Rules; neither did it discuss their admissibility according
to the terms of this provision, namely, the requirements of falling within the
jurisdiction of the Court and being directly connected with the subject-matter of
Costa-Ricas claim.23 It rejected them on the basis of the Arbitral Award made by
US President Cleveland in 1888 that had settled these issues between Nicaragua
and Costa-Rica and on the failure of the former to explain why the Cleveland
Award was not a sufficient basis for determining the rights and obligations of the
parties with regard to these questions.24
It is submitted that this constitutes an unsatisfactory and barely persuasive
treatment by the Court of the third and fifth points of Nicaraguas request for a
declaration. As the Court has demonstrated in the Congo v. Uganda case there is a
distinction between the admissibility of a counterclaim on the basis of Article 80 of
the Rules and the admissibility of the same claim with respect to its merits. In the
former situation the Court examines only the requirements stipulated in Article 80.
In the latter contingency it deals with objections to the admissibility of a counterclaim at the stage of the merits in a manner analogous to the preliminary
objections phase of the proceedings. The position adopted by the Court in the
Navigational Rights case appears to have done precisely this without, however,
pronouncing on the admissibility of the alleged counterclaim to become part of the
main proceedings on the basis of the requirements in Article 80 of the Rules. For the
ruling that the matters forming the substance of the third and fifth points of Nicaraguas declaration had been settled by the Cleveland Award in the nineteenth
century constitutes nothing else than ruling that these claims were inadmissible
because they were moot. This raises a number of questions: Is an assumption that
these claims of Nicaragua were of the character of counterclaims sufficient to
precede the consideration of their admissibility as to their merits? Is one to deduce
that by dealing with the admissibility as to their merits the Court has taken for
granted that these claims were indeed counterclaims and admissible on the basis of
Article 80? Is a hypothesis on the matter sufficient ground to dispose of the
objections of Costa-Rica with respect to their nature and admissibility as counterclaims? Or, to put it otherwise, is a hypothesis sufficient ground of the convergence of the requirements of Article 80? It appears that the Court has approached
the matter of counterclaims with a high degree of formalism. For, unless a
respondent specifically labels a claim as counterclaim or expressly states that this is
part of its formal submissions the Court is not inclined to treat it as a counterclaim
in the sense of Article 80, even though, like the request of Nicaragua, it is formulated as an independent claim and there is an express request to have a
declaratory judgment by the Court.
A consequence of restricting the presentation of counterclaims only in the
respondents Counter-Memorial is that it excludes the possibility of raising

23
24

Id. para 155.


Ibid.

142

5 Procedure

counterclaims by the original applicant to the counterclaims of the original


respondent. Apart from causing undue delay in and widening the scope of the
proceedings excessively it raises the question of expanding the subject-matter of
the principal claim at a stage as late as after the filing of the respondents CounterMemorial. This contingency appears to be possible prior to the written proceedings. In Cameroon v. Nigeria the Applicant, Cameroon, filed an additional
application on 6 June 1994 extending the subject-matter of its initial application of
29 March 1994 to cover the area of Lake Chad. Cameroon requested the Court to
treat its second application as a separate one and join it with its initial application
in single proceedings; at the same time it alternatively proposed that its second
application should be treated as an amendment to its initial one. The Court upheld
this proposal only after Nigeria had consented to it.25 It is doubtful, whether this
would be possible after the initiation of the written proceedings. Certainly, an
expansion of the subject-matter of the initial application would be treated as a new
application giving rise to separate proceedings. Furthermore, the contingency of
presenting a counterclaim to a counterclaim has been expressly disputed by the
USA in the Oil Platforms case. The US expressly denied any basis to the argument
advanced by Iran that it too could have made a counter-claim, pointing out
that Iran initiated [these proceedings], asserting claims that it alone selected.26 In any event, if an original applicant is precluded to amend the subjectmatter of its application then the principle of equality of the parties would require
that a counterclaimant respondent would be precluded from introducing or
reserving the introduction of additional counterclaims beyond those in its CounterMemorial.27 The principle of equality of the parties is of particular importance to
the subject of counterclaims and the present writer shall now turn to it in the
following section.

5.2 Equality of the Parties


The principle of the equality of the parties in judicial proceedings is a fundamental
principle on both the municipal and international planes. According to Kolb:
It defines the structure of the proceedings, which must be adversarial (equality of arms);
the same rights must be granted to all parties, and there must be constant dive to equalize
eventual unevenness among the parties to the extent that it may influence the possibility of
25

Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria
(Cameroon v. Nigeria), Order of 16 June 1994, ICJ Rep. 1994, 105.
26
ICJ Rep. 1998, 190, at 202 para 28.
27
Cf. id., 215, para 8 (Judge Oda dissenting opinion). Judge Oda expressed the view that the
principle of the equality of the parties might not be observed even in the case where the respondents
counterclaim is broadened beyond the original contention in the claim of the applicant State.
While an applicant State is not itself allowed to bring additional claims, why then may a respondent
State be permitted to bring a new claim if this counter-claim is not directly connected with the
subject-matter of the Applicants claim?

5.2 Equality of the Parties

143

a fair outcome of the trial. This equality is inherent in judicial proceedings, but it also
flows from general international law, from the sovereign equality of states and from the
principle of the free consent to jurisdiction of which it is a particular reflection. The
principle of equality is also substantive, not only structural. It is rooted in the fundamental
aim of material justice. In effect, conceptual reflection as well as practical experience show
that no fair outcome can be expected from a trial where the two parties did not have the
same possibilities to plead and present their case. The principle of equality in judicio is so
evident and indispensable for modern legal thinking that it could well be termed a principle of natural law of judicial proceedings 28

The observance of the principle of equality in counterclaim proceedings has


been a matter of some concern since the work on the major revision of the Rules of
the Permanent Court in the inter-war period. Judge Negulesco pointed to the fact
that the existing Rule on counterclaims at the time (Article 40 of the 1922 Rules)
would result in the inequality of the parties in the written proceedings because
while in a normal case the applicant and the respondent would file two documents
(Memorial and Reply, the former, Counter-Memorial and Rejoinder, the latter) in
the case of presentation of a counterclaim in the Counter-Memorial the original
applicant would file only a single document (the Reply) while the original
respondent (the counterclaimant) could address the matter a second time in its
Rejoinder.29 However, there was no further discussion of the issue with the
requirement of direct connection occupying a prominent place in the debate.
Equally Article 63 of the PCIJ 1936 Rules did not address the question of equality
of the parties in written proceedings and this has remained the case with the ICJ
Rules until the year 2001, namely, under Articles 63 of the 1946 Rules, 68 of the
1972 Rules and 80 of the 1978 Rules. It was only after the amendment of Article
80 of the Rules in 2001 that express provision was made with respect to the
equality of the parties. Article 80, paragraph 2 now reads:
2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the
submissions contained therein. The right of the other party to present its views in writing
on the counter-claim, in an additional pleading, shall be preserved, irrespective of any
decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.30

This amendment appears to have been the result of the concern expressed by the
principal claimants in the cases where Article 80 proceedings have taken place in
relation to the presentation of counterclaims by the respondent States. In all these
cases the Court conceded to the original applicants the right to present further
written pleadings with respect to the counterclaims apart from their Replies.
In the Bosnian Genocide case the Applicant, Bosnia and Herzegovina,
expressed its concern that whena counter-claim raises a question which is

28

Kolb 2006, 799.


PCIJ Ser. D Third Addendum to No 2 (1936), 107.
30
Emphasis added. The relevant paragraph 2 of Article 80 prior to the amendment read: 2. 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.
29

144

5 Procedure

independent of the initial claim, any joinder of these claims must be avoided on the
grounds that this could have detrimental effects, on the one hand, on the equality of
the partiessince the Applicant could only respond once in writing, in its Reply,
to the counter-claim31 The Court took note of this concern and ruled that
it is necessary, moreover, in order to ensure strict equality between the Parties, to
reserve the right of Bosnia and Herzegovina to present its views in writing a second time
on the Yugoslav counter-claims 32

Judge Weeramantry in his dissenting opinion after stating his concern on the
observance of the principle of equality in the written proceedings noted approvingly of the ruling of the Court and said that this is an aspect that needs to be
borne in mind whenever future counter-claims are involved 33
Moreover, in the Oil Platforms case Iran voiced a similar concern by arguing
that in general, the State responding to the counter-claim is at a significant
disadvantage since it is apparently confined to a single written pleading, whereas
the counter-claimant will have both the first and the last written word on the
matter34 Furthermore, Iran asserted on the basis of the principle of equality
the right to introduce counterclaims to the counterclaims presented by the United
States which in Irans view widened the scope of the dispute. However, as it has
been seen in the preceding section, such right does not exist and therefore by
operation of the principle of equality a widening of the subject-matter of the
dispute by the counterclaimant respondent should be precluded. The Court again
ruled that it is necessary, moreover, in order to ensure strict equality between
the Parties, to reserve the right of Iran to present its views in writing a second time
on the United States counter-claim 35
In the Cameroon v. Nigeria case, Cameroon did not raise any objections to the
counterclaims of Nigeria. It did not even express any concerns about its disadvantaged position in the written proceedings as a result of not observing the
principle of equality. Notwithstanding this the Court repeated almost verbatim the
ruling in its two previous Orders: it is necessary, moreover, in order to ensure
equality between the Parties to reserve the right of Cameroon to present, within a
reasonable period of time, its views in writing a second time on the Nigerian
counter-claims 36
Finally, in the Congo v. Uganda case, even though the Congo did not raise the
matter of abiding by the principle of equality of the parties in the written proceedings, the Court again ruled that it is also necessary, in order to ensure strict

31
32
33
34
35
36

ICJ Rep. 1997, 243, at 253 para 15.


Id., 260 para 42.
Id., 296.
ICJ Rep. 1998, 190, at 199 para 20.
Id., 206. Also see p. 216 (Judge Oda dissenting opinion); p. 223 (Judge Higgins sep. opinion).
ICJ Rep. 1999, 983, 986.

5.2 Equality of the Parties

145

equality between the Parties, to reserve the right of the Congo to present its views
in writing a second time on the Ugandan counter-claims 37 It may be assumed
that by the time of the Order of the Court in this case the above-quoted ruling of
the Court had become a matter of legitimate expectation on the part of an original
applicant State. In any event, the amendment of Article 80 (2) of the Rules in 2001
has formalized the observance of the principle of equality of the parties in counterclaim proceedings.

5.3 Oral Hearings


Prior to Article 80 of the 1978 Rules of the International Court of Justice, the
relevant provisions of the Rules of the Permanent Court (Article 63) and the Rules
of the present Court (Article 63 of the 1946 Rules and Article 68 of the 1972
Rules) made no provision with respect to the holding of hearings in which the
parties would be given the opportunity to express their views on the presentation of
counterclaims. Article 63 of the PCIJ Rules did not contain any stipulation on how
the Court would evaluate the admissibility of a counterclaim presupposing that this
would take place in the stage of the merits, as indeed happened in all cases before
the Permanent Court in which counterclaims had been presented. By contrast,
Articles 63 of the 1946 Rules and 68 of the 1972 Rules provided that In the
event of doubt as to the connection between the question presented by way of
counter-claim and the subject-matter of the application the Court shall, after due
examination, direct whether or not the question thus presented shall be joined to
the original proceedings. The phrase after due examination is wide enough to
give the Court ample discretion on how the evaluation of counterclaims would be
effected, whether by way of oral hearings or not. The possibility of hearings was
introduced in Article 80 (3) of the 1978 Rules in these terms:
3. In the event of doubt as to the connection between the question presented by way of
counter-claim and the subject-matter of the claim of the other party the Court shall, after
hearing the parties, decide whether or not the question thus presented shall be joined to the
original proceedings.

Moreover, the text of Article 80 (3) as it was amended in 2001 reads:


3. Where an objection is raised concerning the application of paragraph 1, or whenever the
Court deems necessary, the Court shall take its decision thereon after hearing the parties.

A first observation is that, unlike the 1978 version, Article 80 (3) covers not
only the requirement of direct connection but of the jurisdiction of the Court
as well. Indeed, one may discern in this amendment the experience gained from

37

ICJ Rep. 2001, 660, at 681682, para 50.

146

5 Procedure

the practice of the Court. In the Oil Platforms case Iran raised strong objections to
the argument advanced by the United States that what the Court was called under
Article 80 (3) to decide was only whether the requirement of direct connection was
met for the purposes of joining a counterclaim to the main proceedings. As the
Order of the Court states Iran argued that
it is not entirely clear from the language of Article 80, paragraph 3, of the Rules
whether the hearing for which that paragraph provides extends to cover an objection
based on lack of jurisdiction; the decision the Court is called to make under Article 80,
paragraph 3, concerns exclusively the question of whether or not the counter-claim should
be joined to the original proceedings and does not prejudice in any way the right of the
party objecting to the counter-claim to make any defence relating either to the admissibility or to the merits of the counter-claim in a subsequent phase of the proceedings; the
fact that a counter-claim is plainly outside the Courts jurisdiction is relevant for the
purposes of Article 80, paragraph 3, in so far as, on the one hand a counter-claim which
fails to satisfy the express requirement imposed by Article 80, paragraph 1, should not be
joined to the original proceedings, whether the failure relates to lack of connection or lack
of jurisdiction, and on the other hand, there may well be a link between an evident lack of
jurisdiction and the lack of direct connection 38

It becomes clear that Iran attempted to bypass what was perceived as a normative deficiency in Article 80 (3) by advancing the cogent argument that it would
be illogical of the 1978 version of the Rules to require a hearing on the joinder of a
counterclaim to the main proceedings with respect to only one of the requirements
of Article 80 (1). Judge Higgins in her separate opinion pointed succinctly at this
discrepancy and took the view that the omission of doubt as to the jurisdiction of
the Court from the text of Article 80 (3) was not intentional but inadvertent:
No provision is made to hear the parties in the event of doubt as to whether the counterclaim comes within the jurisdiction of the Court. It might be thought that this was perhaps
deliberate, and that the intention was that the Court would resolve any doubts as to its
jurisdiction only when it got to the merits. In any event, the idea that direct connection within the meaning of Article 80, paragraph 1, should be disposed of as a
preliminary matter, while the jurisdiction requirement in Article 80, paragraph 1, should
be dealt with on the merits finds no support at all in the travaux prparatoires of the
various versions of the Rules, including the present Rules. The failure of Article 80,
paragraph 3, to match Article 80, paragraph 1, seems to have been inadvertent and there
was no intention to distinguish between objections relating to connection and those to
jurisdiction 39

This antinomy between Article 80 (3) and Article 80 (1) was remedied by the
2000 amendment of Article 80. The revision of this provision, however, does not
seem to solve the issue of not holding oral hearings that arises from the practice of
the Court. In all the Orders on counterclaims that have been made under Article 80
(its 1978 version) the Court took the view that:

38
39

ICJ Rep. 1998, 190, at 199 para 19 [Emphasis in the original].


Id., 222.

5.3 Oral Hearings

147

having received detailed written observations from each of the Parties, the Court is
sufficiently well informed of the positions they hold with regard to the admissibility of the
claims presented as counter-claims ; and , accordingly, it does not appear necessary to
hear the Parties further on the subject; 40

The Court has maintained this approach in Jurisdictional Immunities the first
counterclaim case under the amended Rule 80 (3).41
The Court appears to interpret the term hearing broadly so as to have not
only its natural meaning of oral hearings but also the meaning of coming to the
knowledge of the Court by other means, in this case the written observations of
the parties. Although the text of both the 1978 and the 2001 versions of Article 80
(3) convey that the Court is bound to reach its decision after hearing the parties in a
set of oral pleadings the Court has refrained from doing so. Even though a measure
of judicial discretion must be allowed to the Court the sole reliance on the written
counterclaim proceedings is hardly satisfactory. This has been pointed out by a
number of Judges of the Court in declarations, separate and dissenting opinions.
In the Bosnian Genocide case Judge ad hoc Kreca thought that the decision of
the Court not to hold hearings was a rational one because it rests upon the
founded belief that, through the written observations of the Parties, it obtained a
complete picture of all relevant matters, which enabled to exercise its jurisdiction,
on the basis of Article 80 of the Rules of the Court. However, he took the view
that in spite of the reasonableness of the approach of the Court its decision not to
hold hearings was at variance with the provision of Article 80 (3) [the 1978
version] under which the Court was duty-bound to hold oral hearings:
It is highly doubtful whether the exchange of written statements by the Parties may be a
substitute for hearing, since hearing as a term of the procedure before the Court
denotes, in the sense of Article 43, paragraph 5, and Article 51 of the Statute, oral
proceedings before the Court. The exchange of written statements by the parties would
suffice for hearings under Article 68 of the 1972 Rules of Court which instead of the
phrase after hearing the parties, contained the phrase after due examination, a phrase
leaving room for liberal interpretation. There are reasonable grounds foe assuming that
in future the Court may find itself in a situation where it has to choose between submission
to rigid rules or flexibility, which opens the path to better administration of justice.
Consequently, a revision of paragraph 3 of Article 80 seems desirable to me, in order
that the rational determination of the Court might not be at variance with the, in this case
unnecessarily, rigid rule of procedure42

In the same litigation, Judge ad hoc Sir Elihu Lauterpacht though recognizing a
measure of discretion to the Court, was critical of the decision not to hold oral
40

See Bosnian Genocide Case, ICJ Rep. 1997, 243, at 256 para 25; Also see Oil Platforms Case,
ICJ Rep. 1998, 190, at 203 para 31; Congo v. Uganda Case, ICJ Rep. 2001, 660, at 676 para 26.
In Cameroon v. Nigeria Case there was no need to hold hearings because the original Applicant,
Cameroon, raised no objections to Nigerias counterclaims with regard to either the jurisdiction
of the Court or their direct connection with the subject-matter of the original applications.
41
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, 4, para 7.
42
ICJ Rep. 1997, 243, at 267. Also see 276 (Judge Koroma sep. opinion).

148

5 Procedure

hearings, not so much on the basis of a textual interpretation of Article 80 (3) but
on the more substantive issue of proper administration of justice because of the
very important subject-matter of the particular dispute. He stated that:
Even if the Court retains a discretion to decide in a given case that that such proceedings need not be held, the present case is one in which the relative merits and the
complexity of the issues involved would certainly have warranted giving the parties
the additional opportunity of commenting orally on each others arguments and the Court
the opportunity of the more extended consideration of the matter that would have been
involved in the holding of a hearing and in the deliberations that would then have followedthe more so as such a step would also have met the expressed expectations of the
Parties
It is, therefore, to be hoped that when the Rules of Court next come to be revised, the
opportunity will be taken to eliminate the cause of the present division of opinion by
ensuring that the word hearing is used consistently to convey the idea of oral proceedings and that when the Court intends to retain a discretion to determine that the
exchanges between representatives of the parties are to be limited to written proceedings it
will adhere to such wording as used elsewhere in the Rules (e.g. Arts. 46, para. 1, 53,
paras. 1 and 2, 55 and 58, para. 2), namely, after ascertaining the views of the parties or,
as in Article 76, paragraph 3, after affording the parties an opportunity of presenting their
observations on the subject or, as in Article 79, paragraph 3, the other party may present
a written statement of its observations. 43

In the Oil Platforms case Judge Oda took issue with the decision of the Court
not to hold oral hearings and stated: I wonder if it is quite proper to confirm
the admissibility of the United States counter-claim and make it part of the whole
proceedings without (ii) having oral hearings on the basis of the complete
exhaustion of the exchange of views indicated in the written proceedings
I wonder if the quick rendering of an Order by the Court is quite reasonable 44
In a more balanced approach to the issue of holding oral hearings on counterclaims
Judge Higgins in her separate opinion in the same case expressed the view that in
light of the ample room for discretion that the Court appears to possess with
regard to counterclaims proceedings:
Oral submissions are neither required by the terms of Article 80, paragraph 3, nor
excluded. Further, the Court has also found sufficient freedom to decide, notwithstanding
the apparently limiting terminology of Article 80, paragraph 3, that the Parties may be
heard (whether in writing or orally) on the question of jurisdiction as well as on the
question of connection.45

In the Jurisdictional Immunities case Judge Canado Trindade and Judge


ad hoc Gaja took particular issue with the stance of the Court not to hold hearings.
Judge Canado Trindade in his dissenting opinion took the view that the Court
should not have taken the present decision without first having heard the

43
44
45

Id., 279280, paras 67.


ICJ Rep. 1998, 190, at 215 para 9.
Id. p. 223.

5.3 Oral Hearings

149

contending parties. He supported his view by giving five reasons: (1) the sound
administration of justice; (2) the autonomous character of counterclaims
qua claims; (3) the strict observance of adversarial proceedings in evaluating claims
and counterclaims; (4) the preservation of the equality of the parties and (5) the
importance of the issues submitted before the Court in the dispute between
Germany and Italy.46 In his declaration Judge ad hoc Gaja expressed the view that
Article 80 (3) as amended in 2000 introduced an obligation binding on the Court to
hold hearings: the new text requires the Court to take a decision after hearing the
parties In the context of the Rules of the Court hearing the parties appears to
imply that an oral hearing should be held. This seems particularly justified when an
objection relates to jurisdiction, given the impact of a decision on jurisdiction 47
The revision of Article 80 (3) of the Rules in 2001, far from meeting the
wish expressed by Judges Kreca and Sir E. Lauterpacht has not dispensed with
the issue of whether the Court is under a duty to hold hearings. At the outset,
such a duty is not upheld by even the Judges who have been critical of the
practice of the Court; a measure of discretion is unanimously acknowledged.
And the Court has consistently so far taken the view that hearing the parties
is subject to the exercise of this discretion to be satisfied exclusively on the
basis of the exchange of written statements.48 While the holding of oral
hearings may not in the future be excluded the wording of the revised Article
80 (3) has not precluded the Court from continuing to follow its hitherto
practice of not holding oral hearings.49 This is unfortunate for oral proceedings
to offer an opportunity of a more analytical exposition of the parties position
on counterclaims and they would be of great benefit to a researcher. Moreover,
the only explanation that may be given to this particular course of action opted
by the Court is the concern to avoid a prolongation of the duration of the main
proceedings50 which also applies to the consideration of preliminary objections
to the jurisdiction and admissibility of counterclaims at the stage of the merits.
On the other hand, if the admissibility of a counterclaim as part of the main
proceedings has as a result the expansion of a dispute on its merits, then the
prospect of undue delay may not be avoided altogether by the mere decline to
hold oral hearings on the stage of counterclaims.

46

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 Canado
Trindade (diss. op.), para 30.
47
Id. Judge ad hoc Gaja (declaration).
48
Cf. Thirlway 1999, 227 who maintains (with respect to the 1978 version of Article 80) that the
formulation of the Rules expressly provides that the Parties must be heard and that it is not for
the Court to determine whether it is sufficiently well-informed but it is for each Party to
determine whether it is satisfied that it has been given sufficient opportunity of enlightening the
Court.
49
See Rosenne 2001, 86; Salerno 1999, 371374; Murphy 2000, 19.
50
S. Rosenne 2000b, 469.

150

5 Procedure

5.4 Undue Delay


Proceedings before the International Court of Justice may last for a considerable
period of time from the filing of an application until the final judgment on the
Merits. Proceedings instituted by way of special agreement tend to be more
expeditious, but this ultimately depends on the subject-matter of the dispute to
be settled by the Court. A multifaceted dispute like the land, island and maritime
dispute between El Salvador and Honduras may involve a very wide array of
issues that may entail longer deadlines for the submission of the Memorial and
Counter-Memorial and a considerable number of public sittings in the course of
oral proceedings.
One factor that may cause the prolongation of proceedings before the Court is
incidental proceedings, such as the raising of preliminary objections to the jurisdiction and the admissibility of the application, the intervention of a third State and
the presentation of counterclaims. However, the making of counterclaims as
incidental proceedings does not appear to consume a great deal of time. What has
the potential to prolong the proceedings because of the presentation of counterclaims is the prolongation of the merits stage as a result of the admissibility of a
particular counterclaim. In other words the concern of undue delay in the proceedings refers mainly to the merits stage and is a combination of two factors: the
subject-matter of a specific counterclaim and the decision of the Court to join it to
the main proceedings.
Such concern was voiced by a number of Judges in the Bosnian Genocide case.
The reason lay chiefly in the subject-matter of the counterclaim of Yugoslavia,
namely, that the principal Applicant, Bosnia and Herzegovina, had responsibility
for the commission of genocide against the Bosnian Serb population. It was
maintained that an already extensive subject-matter that was introduced by the
application of Bosnia alleging the responsibility of Yugoslavia for the breach of
the Genocide Convention (1948) would be magnified out of proportion by
allowing the counterclaim of Yugoslavia that had the same subject with serious
consequences on the proper administration of justice. Thus, Judge Koroma
expressed the view that one cannot view with equanimity or fail to be concerned by the effect the Courts decision to join the counter-claims to the original
Application at this stage would appear to have on the sound and proper administration of justice, and in particular on the interests of the Applicant to have its
claim decided within a reasonable time-frame the Court in exercising its discretion under this provision [Article 80 (3) of the Rules], should have done so in
such a way as to avoid further delay in such a serious matter and to avoid running
the risk that its Order on the Respondents claims might appear to compromise
the proper administration of justice51 Moreover, Judge ad hoc Sir Elihu
Lauterpacht stated in his separate opinion that it would be a matter of discretion
for the Court to order the separation of the two claims, notwithstanding the
51

ICJ Rep. 1997, 243, at 276 (Judge Koroma, separate opinion).

5.4 Undue Delay

151

admissibility of Yugoslavias counterclaim: The principal factor that could have


been invoked to justify the separation of the treatment of the claims and counterclaims is the immense additional complexity to which the treatment of the counterclaims simultaneously with the claim is bound to give rise. The assessment of
the allegations and responses, if approached other than on a fairly general level
could take months of hearings and deliberation.52 Finally, Judge Weeramantry in
his dissenting opinion argued in favor of the Court declining to join Yugoslavias
counterclaim to the main proceedings because it would further delay the conclusion of the proceedings and would defeat the ends of justice by inter alia mitigating the substance of the Applicants (Bosnia) case:
In the first place, the case of the Applicant has been pending before the Court since 1993,
and now, at the end of 1997, when the case is nearly ripe for hearing, the Applicant is
entitled to an expeditious disposal of this matter. What is sought to be introduced by way
of counter-claim four years later, which is in reality another claim of the same magnitude
as the claim of the Applicant, will necessarily have the effect of further delaying the
hearing of the Applicants claim. Furthermore, not only will there be a delay in bringing
the allegations of the Respondent to a state of readiness for hearing, but the actual process
of hearing will itself be prolonged. The claim of Bosnia and Herzegovina is complex
enough already, with vast numbers of allegations of fact to be probed and proved.
To combine this massive set of allegations with a fresh set of allegations of like magnitude
will considerably lengthen the time necessary for the hearing of the case. Delay in actual
hearing, added to delay in preparation for hearing, could well defeat the ends of justice
After hearing the extensive evidence that will no doubt be offered by the Applicant, the
Court would have to reserve its conclusions thereon until it heard the extensive evidence
which would similarly be offered by the Respondent. From a practical point of view, this
would hamper the process of decision-making upon the first set of facts for so long a
period that the impressions created by them upon the minds of the judges may well lose
their freshness and immediacy. This can be very damaging to the process of fact-finding in
a long drawn out enquiry.53

In addition Judge Weeramantry raised another issue, namely, the use of the
counterclaim proceedings as a procedural strategy on the part of the original
respondent in order to deliberately obstruct the smooth development of the
proceedings:
There is also a question of principle involved here, because if this Application should be
allowed, it could open the door to parties who seek to delay proceedings against themselves to file, when the case is nearly ready for hearing, what is, in effect, another case
against the applicant, with a view of delaying proceedings against itself. Where such
application comes years after the original claim, this could have damaging effects upon the
due administration of international justice.54

Whatever, the cogency of the above arguments, the Court appears to uphold the
admissibility of counterclaims, for it appears that the proper and sound administration of justice would be equally observed if a counterclaim is presented and
52
53
54

Id. 284 para 19 but cf. 285 para 20.


Id., 294295.
Id., 295.

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5 Procedure

considered by the Court. At the same time it has consistently ruled that when
the Court decides, in the interests of the proper administration of justice, to rule on
the respective claims of the Parties in a single set of proceedings, it must not, for
all that, lose sight of the interest of the Applicant to have its claims decided within
a reasonable time-period 55

5.5 The Position of Third States


The procedure with regard to the presentation of counterclaims as it is stipulated in
Article 80 of the Rules of the International Court is not in harmony with the
provision in Article 40 (3) of the Statute of the Court that the Members of the
United Nations shall be notified of the special agreement or the application by
which a case is brought before the Court. The purpose of this provision is to allow
third States to be informed of the seizing of the Court with a particular dispute and
consider whether to intervene in the proceedings if they have an interest of a legal
nature that might be affected. A counterclaim as an independent claim of the
respondent against the original applicant has the same function as an application
instituting proceedings before the Court. Therefore, it may create the conditions
for the exercise of intervention by a third State; but in this case this third State is in
no position of having knowledge of the substance of the counterclaim in order to
decide on its future course of action because the counterclaim is presented in
the Counter-Memorial which is not required by the Statute to be notified to
third States.
This normative omission existed under the Rules of Procedure of the Permanent
Court and was expressly identified by Judge Negulesco as a ground for not
allowing a counterclaim to be introduced in the Counter-Memorial but, instead, to
be presented by separate application.56 Judge Anzilotti, on the other hand, thought
that this alleged drawback was unimportant because the Rules of the Permanent
Court permitted third States to be informed with respect to the documents submitted by the litigant States and hence the Counter-Memorial containing a counterclaim.57 The matter was not pursued further during the process that led to the
revision of the Rules of the PCIJ in 1936 and was virtually kept open until the
consideration of the counterclaim of Yugoslavia in the Bosnian Genocide case and
of the counterclaim of the USA in the Oil Platforms case. In Bosnian Genocide
Bosnia and Herzegovina argued that when a counter-claim raises a question
which is independent of the initial claim, any joinder of these claims must be
avoided on the grounds that this could have detrimental effects on the rights and

55

Id. 259260 para 40; see also Oil Platforms case, ICJ Rep. 1998, 190, at 205 para 42; Congo v.
Uganda case, ICJ Rep. 2001, 660, at 681 para 48. Cf. Thirlway 1999, 224.
56
PCIJ Ser. D Third Addendum to No 2 (1936), 105.
57
Id., 106.

5.5 The Position of Third States

153

interests of third Statessince those third States would not be informed of the
counter-claim 58 Similarly, in the Oil Platforms case Iran asserted that if
the case were to be widened in the way proposed by the United States, this might
also prejudice third States interests, since Article 40, paragraph 3, of the Statute of
the Court only provides that a new case is notified to third States and that no such
provision is made with respect to counter-claims 59
In its Order in the Bosnian Genocide case the Court included a passage, to be
repeated in all subsequent counterclaim Orders, by which, as evidence of consistent judicial practice, it has resolved the discrepancy between Article 40 (3) of
the Statute and Article 80 of the Rules:
in order to protect the rights which third States entitled to appear before the Court derive
from the Statute, the Court instructs the Registrar to transmit a copy of this Order to
them 60

Thus, by communicating its Order that constitutes the decision of the Court on
the admissibility of counterclaims to third States the latter are informed, first, of
the substance of the counterclaim and, secondly, of the fact that it has become part
of the main proceedings. Therefore, they are in a position to consider whether they
have a right which might be affected by the counterclaim and exercise intervention.61 It is submitted that the concerns that were voiced with respect to rights and
interests of third States had premised the issue on a faulty basis. Because by opting
to communicate the Order to third States, as opposed the Counter-Memorial, the
Court has adopted a course which is in absolute harmony with proper administration of justice. First, third States are informed of a counterclaim that is the
object of a decision of the Court and not merely of an application included in the
Counter-Memorial; to allow third States to intervene in the main proceedings on
the basis of the Counter-Memorial (i.e., before the Court has reached a decision on
whether the counterclaim will be part of the main proceedings) is to exercise
intervention merely on the basis of an assumption. Secondly, they have reasonable
time to reflect and decide on whether to intervene or notthey have this right until
the end of the written proceedings on the counterclaim, which includes the Reply,
the Rejoinder, and the second written document the original applicant is entitled to
submit. Thirdly, third party intervention aims at having recognized a right of a
legal nature that might be affected in the final judgment of the Court on the merits;
therefore, since it is in the merits when the substance of the counterclaim shall be
adjudicated it is procedurally proper to exercise the right to intervene on the basis

58

ICJ Rep. 1997, 243, at 253 para 15.


ICJ Rep. 1998, 190, at 199 para 20.
60
ICJ Rep. 1997, 243, at 259 para 39; see also Oil Platforms case, ICJ Rep. 1998, 190, at 205
para 42; Cameroon v. Nigeria case, ICJ Rep. 1999, 983, at 986; Congo v. Uganda case, ICJ Rep.
2001, 660, at 681 para 47.
61
See Thirlway 1999, 227.
59

154

5 Procedure

of an Order of the Court deciding with finality that the counterclaim shall be joined
to the merits, rather than the Counter-Memorial of the respondent.62

5.6 Withdrawal or Discontinuance of Counterclaims


A counterclaim may be withdrawn either on the initiative of the party that has
presented it, namely, the respondent in the main proceedings, or if the principal
applicant notifies the Court its request to discontinue proceedings, that is, if it
withdraws its application.
In the first situation, the counterclaimant respondent, as applicant in the case of
counterclaim has the right to request the Court to discontinue the proceedings with
respect to the counterclaim. The steps to be taken are to be regulated by Article 89
(3) of the Rules that require that the other party (in this case the original applicant)
must, within a period of time fixed by the Court, state whether it objects to the
discontinuance of the counterclaim proceedings. If no objection is made within
this time-period then its acquiescence to the withdrawal of the counterclaim is
presumed. In this case the main proceedings on the basis of the original claim
continue without the counterclaim. In the Bosnian Genocide case Yugoslavia, the
counterclaimant party, notified the Court by a letter dated 20 April 2001 of its
intention to withdraw the counterclaims presented in its Counter-Memorial. By a
letter dated 12 July 2001 Bosnia and Herzegovina, the principal claimant,
informed the Court that it had no objection to the withdrawal by Yugoslavia. In an
Order dated 10 September 2001 the Court placed on record the withdrawal of
Yugoslavias counterclaims.63 The case continued only with respect to Bosnias
original Application and the Court delivered its final Judgment on the merits on 26
February 2007.
In the second case, however, the discontinuance of the main proceedings as a
result of the withdrawal of the original application by the principal claimant results
in the demise of the counterclaim. This is because a counterclaim is intrinsically
bound with the principal claim, for it is presented as a response to it, it is subject to
the same scope of consent to the jurisdiction of the Court and is directly connected
with the subject-matter of the principal claim. As a counterclaim is so closely bound
with the principal claim both as a matter of procedure and merits it would be a
distortion of the entire rationale underlying it to allow it to survive the withdrawal
of the principal claim. A counterclaim may constitute an independent type of claim
but procedurally may form part of the main proceedings under precise and strict
requirements; in fact these requirements suggest that the only reason for allowing it
to subsist within the bounds of the main proceedings is their very existence in
the first place and not because it constituted an independent claim procedurally

62
63

See supra Chap. 4.


ICJ Rep. 2001, 572, at 572573.

5.6 Withdrawal or Discontinuance of Counterclaims

155

(as a separate application) that was simply joined to the main proceedings. Moreover, a counterclaimant respondent must, under Article 89 (3) of the Rules, not
object so as the discontinuance of the main proceedings takes effect. Therefore, if
the counterclaimant party wishes that the Court proceeds with the adjudication of
its counterclaim it has no other avenue than to object to the withdrawal of the
principal claim. During the debate on the revision of the PCIJ Rules in 1934 Judge
Adaci raised the question of what the position of a counterclaim would be if the
main action were withdrawn. Judge Fromageot replied that the withdrawal of the
same action was valid only if the other party gave its consent; consequently, the fate
of a counterclaim would depend on the stance adopted by the counterclaimant
respondent: it would survive only if the main claim survived.64 It is submitted that
this position is cogent and still applicable at present.
A slightly different situation arises in the case where the Court rejects in its
entirety the principal claim at the preliminary objections or the merits stage. The
question would then be whether the counterclaim would survive and judgment
could be passed upon it. The only precedent on the matter is the PanevezysSaldutiskis case before the Permanent Court and this suggests that the dismissal of
the principal claim as inadmissible would inevitably result in the dismissal of the
counterclaim. The Court has not expressly explained this contingency and it may
only be submitted that even though a counterclaim is an independent claim in
substance it is not independent as a matter of procedure. In the latter case there is
interdependence which is expressed via the jurisdiction and direct connection
requirements. In other words, it is the principal claim that may give birth to the
counterclaim (for it lies with the discretion of the respondent to present it) to be
incorporated in the same proceedings and with the former defunct the latter may
not be expected to survive.65 At any event, the original counterclaimant respondent
retains its right to present a separate application in order to pursue the substance of
its counterclaim.

References
Anzilotti D (1930) La Demande Reconventionelle en Procdure Internationale. J du Droit
International vol. 57, p 857
Kolb R (2006) General Principles of Procedural Law. In: Zimmermann A et al (eds) The Statute
of the International Court of Justice. A Commentary., Oxford
Murphy SD (2000) Amplifying the World Courts Jurisdiction through Counter-claims and
Third-Party Intervention. 33 Geo. Wash. Intl L. Rev. 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 Jos Maria Ruda. Kluwer
Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules
of Court. 14 LJIL 77

64
65

PCIJ Ser. D Third Addendum to No 2 (1936), 110111.


Cf. Anzilotti 1930, 876877; Thirlway 1999, 210.

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5 Procedure

Salerno F (1999) La Demande Reconventionelle dans la Procdure de la Cour Internationale de


Justice. RGDIP 103, p 329
Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide
Convention and the Oil Platforms Decisions

Chapter 6

Conclusions

The right of a respondent to present counterclaims in the course of the same


proceedings initiated by the applicant is admitted in the major systems of domestic
law. The embrace of this right in international litigation constitutes an example of
private law analogy in international law. It is remarkable that the introduction of
the concept of counterclaims in the rules of procedure of international courts and
tribunals has not met with serious objections as a matter of principle. This may be
explained by the inherent indicia of the concept that admit its application on the
international plane: first, the high degree of fairness surrounding it in allowing a
respondent to present its own claims against the applicant; secondly, the possibility
to do this in the course of the same proceedings, thus ensuring judicial economy;
thirdly, its character as a tool of procedural strategy in balancing the effect of the
principal application or by mutually neutralizing the substance of both claim and
counterclaim with the result of depriving the principal claim of any effect. The
adaptation of the concept of counterclaims on the international plane has generally
been smooth; but a degree of adaptation has been necessary.
This appears to be due to the particularities of international dispute settlement:
its essentially consensual nature, especially when both or one of the litigant parties
is a State; the absence of any link between or hierarchical structure among
international courts and tribunals; the special category of disputes falling under the
competence of the majority of international tribunals. Still there are certain
common features concerning the right to present counterclaims. First, the right to
present counterclaims is expressly provided in the rules of procedure of international tribunals. Although it is conceivable that counterclaims may be made in the
absence of express stipulation as a direct application of general principles of law in
the sense of Article 38 (1) (c) of the ICJ Statute, precedent is scant and the general
practice is contrary. Secondly, a counterclaim must fall under the jurisdiction of
the tribunal as the principal claim. Thirdly, a counterclaim must be connected with
the subject-matter of the principal claim. Finally, a counterclaim must be presented
in principle in the respondents counter-memorial or statement of defence,

C. Antonopoulos, Counterclaims before the International Court of Justice,


DOI: 10.1007/978-90-6704-790-6_6,
T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

157

158

6 Conclusions

although some exceptional deviation is allowed in the context of institutionalized


arbitration. In the context of arbitration (in particular institutionalized arbitration)
the requirements of jurisdiction and connection are not expected to give rise to
controversy for the terms of the jurisdiction of an arbitral tribunal are provided
with clarity in the constituent documents and the disputes to be settled are of a
particular and accurately defined category that makes connection readily identified. The situation is not the same in the case of the presentation of counterclaims
in the International Court of Justice.
The Rules of the International Court allow the presentation of counterclaims in
Article 80 as amended in 2000. Indeed, the Permanent Court of International Justice,
the predecessor of the present Court, was a pioneer in expressly providing in Article
40 of its Rules in 1922 the right to present counterclaims. The current Rule on
counterclaims (Article 80) constitutes the final step of an evolutionary process
concerning counterclaims that started in the context of the Permanent Court in the
inter-war period. Initially, the only requirement for the admissibility of a counterclaim was that it would come within the jurisdiction of the Court but under the
influence of the Permanent Courts Judgment in the Chorzw Factory case the
requirement of direct connection was added in a major revision of the Rules in 1936
(Article 63). The pair of jurisdiction and direct connection has remained ever since
unchanged as the framework within which the admissibility of counterclaims is
evaluated. The next important step was the introduction of Article 80 in its first
version in 1978 by virtue of which the admissibility of counterclaims was to be the
subject of incidental proceedings rather than, as was hitherto the case, a matter to be
discussed at the stage of the Merits. It was in the course of dealing with counterclaims within the framework of incidental proceedings that the Court has reached a
number of findings with respect to counterclaims in litigation before it. The case-law
of the Court in relation to counterclaims is admittedly small compared with other
instances of incidental proceedings such as provisional measures or preliminary
objections to jurisdiction and admissibility. However, it presents a remarkable
degree of consistency in spite of a considerable margin of discretion reserved by the
Court and this allows the inference of certain conclusions on the right to make
counterclaims at the International Court of Justice.
First, the definition of counterclaims advanced by the Court suggests that they
are a reaction to the principal claim and at the same time constitute independent claims in that they pursue objectives beyond the dismissal of the
Applicants original claim. Therefore, counterclaims are to be distinguished from a
defence on the merits. Indeed, the Court appears to depart from the position
which is largely based on the Revision process of the PCIJ Rules and on earlier
literature. In fact, it is implicit in the practice of the Court so far that counterclaims
appear to function as a defence only functionally, namely, to the extent that they
react to the principal claim but in substance they constitute an offensive means that
aims at mitigating or neutralizing the substance of the principal claim.
Secondly, the right to present counterclaims is premised on the rationale of
procedural economy and sound administration of justice. In this respect, the raison
d tre of counterclaims before the International Court is the same as in municipal

6 Conclusions

159

law. At the same time, however, the Court tends to subject procedural economy
and sound administration of justice to the requirements of admissibility of
counterclaims under Article 80 (1). This implies that the Court would be motivated
by the two tenets of the rationale of counterclaims if it is satisfied that a counterclaim comes within the jurisdiction of the Court and has a direct connection
with the subject-matter of the principal application. In other words, it is not the
rationale of counterclaims that is the governing factor in allowing a counterclaim
but the meeting of the requirements of Article 80 (1) of the Rules that makes
cogent the invocation of this rationale.
Thirdly, a counterclaim does not have the function of a plea of tu quoque. Thus,
it may be allowed even if its subject-matter is the same with the subject-matter of
the principal claim which alleges the violation of a peremptory rule of international law or a rule that gives rise to obligations to the international community as
a whole. This is because the admissibility of counterclaims and the function of
rules of jus cogens or rules giving rise to obligations erga omnes are two distinct
contingencies. An Order of the Court allowing the admissibility of a counterclaim
in this context does not constitute an instance of contracting out of such a rule by
implication.
Fourthly, under Article 80 (1) of the Rules a counterclaim may be entertained if
two requirements are met: (a) the counterclaim comes within the jurisdiction of the
Court and (b) is directly connected with the subject-matter of the principal claim.
Both requirements apply cumulatively and, therefore, the absence of the one is not
remedied by the presence of the other.
(a) The jurisdiction of the Court with respect to the counterclaim must be premised on the same jurisdictional basis as the principal claim. This is implicit in the
essentially consensual nature of the jurisdiction of the Court and its reluctance to
allow Applicant States to introduce additional grounds of jurisdiction beyond those
stated in the original application instituting proceedings. The question, however, is
whether within the parameters of the same jurisdictional basis a counterclaimant
respondent may present a counterclaim the subject-matter of which exceeds the
subject-matter of the original claim but is directly connected with the subject-matter
of the principal claim. This may not be excluded a priori, although the Court has
suggested in the Oil Platforms case that if it circumscribes in a Preliminary
Objections Judgment the precise parameters of its jurisdiction in relation to a particular aspect of the subject-matter of the principal application then the counterclaim
must fall exactly within the same parameters with respect to its subject-matter. It
appears that this reflects a concern on the part of the Court lest the finality of its
Judgments is put to question. At the same time, in case the jurisdiction of the Court is
not the subject of a Preliminary Objections judgment there is nothing to prevent in
principle the presentation of a counterclaim that may have a subject-matter different
from that of the principal application provided that it is premised on the same
jurisdictional basis. This in turn is a matter to be resolved on the basis of the exact
jurisdictional basis that is invoked in a specific dispute.
(a) (i) The establishment of the jurisdiction of the Court on a special agreement
does not in principle exclude the possibility of presenting counterclaims. However,

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6 Conclusions

this is contingent upon the precise terms of the special agreement concerning the
particular aspects of the dispute submitted to the Court.
(a) (ii) If the jurisdiction of the Court is based on the compromissory clause of a
treaty there is nothing to exclude the presentation of a counterclaim arising from
an alleged violation of a provision of the treaty other than the one constituting the
subject of the principal claim. A possible exception would be the case where the
Court has already ruled in a Preliminary Objections Judgment that it has jurisdiction only with respect to the violation of a particular provision. Moreover, the
counterclaim must not be debarred by a reservation excluding the jurisdiction of
the Court that is either contained originally in the compromissory clause or has
been appended by the principal Applicant to it.
(a) (iii) The Optional Clause offers a jurisdictional framework that may allow a
wide range of opportunities to present counterclaims provided that they are not
debarred by reservations excluding specific type of disputes.
(a) (iv) The principle of forum prorogatum provides a counterclaimant
Respondent the opportunity to succeed in advancing a claim the subject-matter of
which is not covered by the jurisdiction of the Court with respect to the original
application, when the jurisdiction of the Court is premised on any of the bases of
Article 36 of the Statute. This may be the case if the original Applicant raises no
objection. By contrast, if the principal Applicants claim comes under the jurisdiction of the Court on the basis of forum prorogatum, especially under Article 38
(5) of the Rules, then the terms of this provision must be applied with respect to
the counterclaim.
(a) (v) The Monetary Gold principle is applicable in the event of a presentation
of a counterclaim, if the Court cannot rule upon its merits unless it first rules as a
prerequisite on the rights and obligations of a third State not a party to the
proceedings.
(a) (vi) Preliminary objections to the jurisdiction and admissibility with respect
to the merits of the counterclaim may be distinguished from jurisdiction as a
requirement of admissibility of a counterclaim under Article 80 of the Rules. As
such they are likely to be evaluated by the Court at the stage of the Merits as
objections of non-preliminary character, if the Court has determined the parameters of its jurisdiction in a Judgment on Preliminary Objections. However, if this
not the case and it is manifest that a counterclaim does not come under the
jurisdiction of the Court that an objection thereto shall be disposed off at the
incidental proceedings of Article 80 as preliminary objection (viz. Jurisdictional
Immunities case). Thus, during these incidental proceedings it is not enough for the
Court to be satisfied that it has prima facie jurisdiction over the counterclaim but
that it essentially has jurisdiction to entertain the counterclaim.
(b) The direct connection with the subject-matter of the principal claim is
subject to the discretion of the Court which is an exercise in appreciation of the
particular aspects of each case. The starting point of this evaluation is that direct
connection must exist both in fact and in law.
(b) (i) The Court appears to adopt a very broad approach with respect to
connection in fact. It does not require identity of facts underlying both the claim

6 Conclusions

161

and counterclaim. The Court seeks to ascertain, first, that the facts are of the same
nature and, secondly, that they form part of the same factual complex. Facts of the
same nature appear to be events the content of which falls into the same type of
conduct (regardless of the identity of actor and its repercussions on people or
objects) or the same type of situation. Secondly, the criterion of the same factual
complex indicates that the facts underlying claim and counterclaim must have
taken place within the same temporal and territorial setting.
(b) (ii) With respect to connection in law the Court has adopted the position
that the parties must pursue the same legal aim. According to the Court
this consists in the aim to establish the responsibility of the respondent by way of
the institution of the main proceedings and, on the other, of the responsibility of the
principal applicant through the presentation of the counterclaim by the respondent.
However, the responsibility of either party which constitutes the purpose of both
claim and counterclaim must be the result of the violation of obligations based on the
same treaty or rule of customary law.
Fifthly, an overall assessment of the case-law of the Court reveals that the
jurisdiction of the Court, as requirement of the admissibility of counterclaims,
appears to have acquired overarching importance over the requirement of direct
connection. In the first place, if, and only if, the principal Applicant raises an
objection to the jurisdiction of the Court with respect to the counterclaim, the
Court shall evaluate it with a high degree of rigour and no flexibility at all.
It insists that once its jurisdiction has been determined in a Preliminary Objections
Judgment it is these precise parameters that must form the jurisdictional basis of
the counterclaim. On the other hand, if there has not been any prior ruling on its
jurisdiction it is prepared to evaluate an objection to it with regard to a counterclaim at the stage of incidental proceedings, especially when it is manifestly clear
that it does not have jurisdiction to entertain the counterclaim. By contrast, the
approach of the Court toward the requirement of direct connection is far more
flexible and liberal. Therefore, unless the principal Applicant contests the jurisdiction of the Court over a counterclaim and its admissibility is evaluated only on
the basis of direct connection, it is more likely that a counterclaim will be allowed.
Finally, the procedure stipulated in Article 80 of the Rules reflects to considerable degree the experience gained by the case-law of the Court in recent years.
First, it is mandatory that a counterclaim shall be presented by the Respondent in
the Counter-Memorial. Although it has been suggested by eminent authority that
counterclaims may be presented earlier than the filing of the Counter-Memorial
this is not supported in the practice of litigants before either the PCIJ or the ICJ.
Moreover, the presentation of counterclaims at a stage later than the filing of the
Counter-Memorial is passed over in silence by the Court. Another consequence of
restricting the presentation of counterclaims only in the Respondents CounterMemorial is that it excludes the possibility of raising counterclaims by the principal Applicant to the counterclaims of the Respondent. Secondly, the amendment
of Article 80 in 2000 upholds the principle of equality of the parties by allowing
the principal Applicant to file additional written pleadings with respect to counterclaims apart from its Reply. In this respect the Rules of the Court have met the

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6 Conclusions

concern expressed by all principal Applicants in counterclaim proceedings under


the 1978 version of Article 80. Thirdly, the holding of oral hearings is subject to
the discretion of the Court, now enshrined in the text of Article 80 of the Rules.
The Court has never held oral hearings in counterclaims proceedings to date; this
practice of the Court has become the object of criticism and is to be regretted.
Fourthly, the right of third States to intervene under Articles 62 and 63 of the
Statute of the Court if a right of legal nature may be affected by a counterclaim is
preserved by the consistent practice of the Court (which has not been enshrined in
the text of the Rules) to communicate the Orders on counterclaims to them. This
gives third parties sufficient time to consider on the propriety to exercise the right
of intervention or not. Finally, the withdrawal of a counterclaim is subject to the
same requirement as the withdrawal of an Application (consent of the respondent
State) and does not affect the proceedings that were initiated by the principal
Applicant. Therefore the case may conclude with the final Judgment on the Merits.
By contrast, the withdrawal or rejection of the principal claim leads to the demise
of the counterclaim because of the intrinsic procedural relationship between them.
Even though a counterclaim constitutes an independent claim as a matter of
substance this is not the case as a matter of procedure. It is only via the procedural
requirements of Article 80 (1) that a counterclaim may constitute part of the same
proceedings instituted by submitting the principal claim to the Court. Therefore,
the demise of the main proceedings cannot be supplanted by the counterclaim
proceedings. It is only by making a separate application inaugurating a fresh
litigation that the counterclaimant Respondent may present its claims.

Table of Cases

Permanent Court of International Justice


Case Concerning the Factory at Chorzw (Claim for Indemnity) (Merits), PCIJ
Ser. A No 17 (1928)
2, 3842, 44, 46, 66, 89, 118, 120121, 131,158
Legal Status of Eastern Greenland, PCIJ Ser. A/B No. 53 (1933)
4142, 122
Diversion of Water from the Meuse (Netherlands v. Belgium), PCIJ Ser. A/B No.
70 (1937)
47, 65, 122
Panevezys-Saldutiskis Railway (Estonia v. Lithuania), PCIJ Ser. A/B No. 76
(1939)
47, 111
Rights of Minorities in Polish Upper Silesia (Minority Schools), PCIJ Ser. A No 15
(1928)
9596
Mavromatis Jerusalem Concessions case, PCIJ Ser. A No 5 (1925)
96

International Court of Justice


International Status of South-West Africa, Advisory Opinion of July 11, 1950, ICJ
Rep. 1950, p. 128
7
The Asylum Case (Colombia/Peru), ICJ Rep. 1950, p. 266
48, 66, 82, 106,
122123, 137
Case Concerning Rights of Nationals of the United States of America in Morocco
(France v. United States of America), ICJ Rep. 1952, p. 176
48, 66
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, p. 325
78, 97
Case Concerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
(Counterclaims), Order of 17 December 1997, ICJ Rep. 1997, p. 243
50,

163

164

Table of Cases

5253, 5556, 6062, 64, 6667, 69, 74, 79, 107, 109, 124, 126, 128, 132133,
138, 143, 147, 150, 152154
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,
http://www.icj-cij.org
101
Case Concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda) (Counter-Claims), Order of 21 November
2001, ICJ Rep. 2001, p. 660
3, 49, 54, 5859, 6162, 6466, 9293, 107,
113115, 127, 133, 138139, 141, 144, 147, 152153
Case Concerning Armed Activities on the Territory of the Congo (Congo v.
Uganda) (Merits), Judgment of 19 December 2005, ICJ Rep. 2005,
p. 168
63, 9091, 113114, 118, 129131
Case Concerning Oil Platforms (Iran v. USA) (Counter-Claim), Order of 10 March
1998, ICJ Rep. 1998, p. 190
3, 4, 19, 49, 5556, 58, 6364, 66, 75, 79,
8588, 91, 101, 107, 112, 114116, 118, 120, 126, 132133, 138, 142, 144,
146148, 152153, 159
Case Concerning Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep.
1996, p. 803
85, 87, 117
Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November
2003, ICJ Rep. 2003, p. 161
90, 113, 116
Case Concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria) (Jurisdiction and Admissibility), ICJ Rep. 1998,
p. 275
9091
Case Concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria) (Counter-Claims), Order of 30 June 1999, ICJ
Rep. 1999, p. 983
3, 49, 54, 61, 66, 107, 127, 133, 138, 142, 144, 147, 153
US Diplomatic and Consular Staff in Tehran (Provisional Measures), ICJ Rep.
1979, p. 7
61
The East Timor Case (Portugal v. Australia), ICJ Rep. 1995, p. 90
70, 74, 76
Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order
of 6 July 2010, ICJ General List No 143, http://www.icj-cij.org/docket/
files/143/16027.pdf
3, 10, 37, 49, 54, 56, 5859, 6263, 65, 7374, 7980,
85, 91, 94, 109, 111, 114117, 119, 137138, 147149
The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948,
p. 15
74, 96
Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. USA) (Preliminary Objections), ICJ Rep. 1984, p. 392
76,
78, 91, 105, 111
Case Concerning Legality of the Use of Force (Yugoslavia v. Belgium) (Provisional
Measures), ICJ Rep. 1999, p. 124
78
Case Concerning Legality of the Use of Force (Yugoslavia v. The Netherlands)
(Provisional Measures), ICJ Rep. 1999, p. 542
78
Case Concerning Legality of the Use of Force Case (Yugoslavia v. Spain)
(Provisional Measures), ICJ Rep. 1999, p. 761
84

Table of Cases

165

Case Concerning Legality of the Use of Force Case (Yugoslavia v. USA)


(Provisional Measures), ICJ Rep. 1999, p. 961
84
The Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction and
Admissibility), ICJ Rep. 1978, p. 3
82-83
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Jurisdiction and Admissibility), ICJ Rep. 1994, p. 112
83
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Jurisdiction and Admissibility), ICJ Rep. 1995, p. 6
83
Case Concerning Border and Trans-border Armed Actions (Nicaragua v.
Honduras) (Jurisdiction and Admissibility), ICJ Rep. 1988, p. 69
8485
Case Concerning Right of Passage over Indian Territory (Portugal v. India)
(Preliminary Objections), ICJ Rep. 1957, p. 125
91
Haya de la Torre Case (Colombia v. Peru), ICJ Rep. 1951, p. 71
9697
Anglo-Iranian Oil Co. case (Jurisdiction), ICJ Rep. 1952, p. 93
97
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, http://
www.icj-cij.org
9798
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136,
http://www.icj-cij.org
98100, 102, 138
Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and
USA), ICJ Rep. 1954, p. 19
104105
Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia)
(Preliminary Objections), ICJ Rep. 1992, p. 240
105
Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (Nicaragua
Intervening), ICJ Rep. 1990, p. 92
105
Libya-Tunisia Continental Shelf Case (Malta Intervening), ICJ Rep. 1981,
p. 3
106
Libya-Malta Continental Shelf Case (Italy Intervening), ICJ Rep. 1984,
p. 3
106
The Barcelona Traction Case (Preliminary Objections), ICJ Rep. 1964,
p. 6
110
Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), ICJ Rep.
2004, p. 12
110111
Interhandel Case (Switzerland v. USA) (Provisional Peasures), ICJ Rep. 1957,
p. 107
116
Case Concerning the Dispute Regarding Navigational and Related Rights (CostaRica v. Nicaragua), Judgment of 13 July 2009, http://www.icj-cij.org
139141

Permanent Court of Arbitration


The Carthage (France v. Italy), PCA, Award of 6 May 1913, http://www.pca-cpa.
org/upload/files/Carthage%20EN.pdf
1314

166

Table of Cases

The Manouba (France v. Italy), PCA, Award of May 6, 1913, http://www.pcacpa.org/upload/files/Manouba%20EN.pdf


1314
Dr. Horst Reineccius (Claim No. 1), First Eagle SoGen Funds Inc. (Claim No. 2),
Mr. Pierre Mathieu and La Socit de Concours Hippique de la Chtre (Claim
No. 3) v. Bank for International Settlements, PCA, Award of 19 September
2003, http://www.pca-cpa.org
1617
Barbados and the Republic of Trinidad and Tobago, PCA, Award of 11 April
2006, http://www.pca-cpa.org
1718
Guyana and Suriname, Award of 17 September 2007, http://www.pca-cpa.org
1819
Saluka Investments B.V. v. The Czech Republic, Decision on Jurisdiction over
the Czech Republics Counterclaim, 7 May 2004, http://www.pca-cpa.org
1922

Iran-US Claims Tribunal


Case A/2, Request for Interpretation: Jurisdiction of the Tribunal with respect to
claims by the Islamic Republic of Iran against Nationals of the United States of
America, Decision No DEC1-A2-FT, 1 Iran-US CTR 101 (1982)
23
The Islamic Republic of Iran v. The United States of America, Case No.
B1(Counterclaim), Interlocutory Award, September 9, 2004, Award No. ITL
83-B1-FT, 2004 WL 2210709
2425
Reliance Group Inc. v. National Iranian Oil Company et al., Award No. 15-90-2, 8
December 1982, 1 Iran-US CTR 384
26
Thomas K. Khoshravi v. The Government of the Islamic Republic of Iran, Award
No. 571-146-3, 20 June 1996, 1996 WL 1171806
26
Owens-Corning Fiberglass Corp. v. The Government of Iran et al., Interlocutory
Award No. ITL 18-113-2, 13 May 1983, 2 Iran-US CTR 322
27
R. N. Pomeroy et al. v. The Government of the Islamic Republic of Iran, Award
No. 50-40-3, 8 June 1983, 2 Iran-US CTR 372
27
Morrison-Knudsen Pacific Ltd. v. The Ministry of Roads and Transportation et al.,
Award No. 143-127-3, 13 July 1984, 7 Iran-US CTR 54
27
American Bell International, Inc. v. The Government of the Islamic Republic of
Iran, Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR
74
2728
Westinghouse Electric Corp. v. The Islamic Republic of Iran et al., Interlocutory
Award No. ITL 67-389-2, 12 February 1987, 14 Iran-US CTR 104
27
Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force, Award No.
579-389-2, 26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.)
2729
Kimberley-Clark Corp. v. Bank Markazi et al. Award No. 46-57-2, 25 May 1983, 2
Iran-US CTR 334
28

Table of Cases

167

Anaconda-Iran, Inc. v. The Government of the Islamic Republic of Iran et al.,


Interlocutory Award No. ITL 65-167-3, 10 December 1986, 15 Iran-US CTR
199
28

ICSID Arbitral Tribunals


Sempra Energy International v. The Argentine Republic ICSID Case No. ARB/02/
16 (Award), 2007 WL 5540331 (APPAWD)
30
Bevenutti and Bonfant SRL v. Peoples Republic of Congo, ICSID Case No. ARB/
77/2 (Award), 1980 WL 371579 (APPAWD)
30
Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17
(Award), 2008 WL 2912764 (APPAWD)
3031
Klckner Industrie-Anlagen GmbH v. United Republic of Cameroon and Socit
Camerounaise des Engrais (SOCAME), ICSID Case No. ARB/81/2 (Award),
1983 WL 510000 (APPAWD)
31
Rumeli Telekom A.S. and Telsim Mobil Telekomikasyon Hizmetleri A.S. v.
Republic of Kazakhstan, ICSID Case No. ARB/05/16, 2008 WL 4819868
(APPAWD)
31
Maritime International Nominees Establishment (MINE) v. Republic of Guinea,
ICSID Case No. ARB/84/4 (Award), 1988 WL 1103627
31
Amco v. Republic of Indonesia, ICSID Case No. ARB/81/1 (Resubmitted Case:
Decision on Jurisdiction), 27 ILM 1281 (1988)
32

ICC Arbitral Tribunals


Award in Case No. 3779 of 13 August 1981, ICCA Ybk, Vol. IX (1984)
Award in Case No. 8486 (1996), ICCA Ybk, Vol. XXIVa (1999)
33
Award in Case No. 4567 (1985), ICCA Ybk, Vol. XI (1986)
33

33

Table of Treaties

Agreement on Encouragement and Reciprocal Protection of Investments between


the Kingdom of the Netherlands and the Czech and Slovak Federal Republic
(1991) 2242 UNTS 39914
19
Arbitration Treaty between Germany and Poland (1925), Annex D, Treaty of
Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy,
Locarno (1925) 54 LNTS 1292
3940
DjiboutiFrance Convention concerning Judicial Assistance in Criminal Matters
(1986) 1695 UNTS 29220
98, 138
Genocide Convention (1948) viz. Convention on the Prevention and Punishment of
the Crime of Genocide (1948) 78 UNTS 277
53, 6768, 78, 84, 97, 124
126, 132, 150
ICSID Convention (1965) viz. Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (1965) 575 UNTS
8359
21, 29, 32
Iran-USA Treaty of Amity, Economic Relations and Consular Rights (1955) 284
UNTS 93
8586, 90, 112, 116, 126127
Kingdom of YugoslaviaBelgium Convention of Conciliation, Judicial
Settlement and Arbitration (1930) 106 LNTS 2455
78
Kingdom of YugoslaviaThe Netherlands Convention of Conciliation, Judicial
Settlement and Arbitration (1931) 129 LNTS 2952
78
NicaraguaUSA Treaty of Friendship, Commerce and Navigation (1956) 367
UNTS 5224
77
Pact of Bogota viz. Charter of the Organization of American States (1948) 119
UNTS 1609
The Hague Convention on the Complete and Final Settlement of the Question of
Reparations (1930) 104 LNTS 2394
1617
Treaty of Versailles (1919) viz. Treaty of Peace between the Allied and Associated
Powers and Germany, Versailles, June 28, 1919, 13 AJIL Suppl. 151
(1919)
3839, 40, 66, 120

169

170

Table of Treaties

UN Convention on the Law of the Sea (UNCLOS) (1982) 1833 UNTS 3


17
18
Vienna Convention on the Law of Treaties (1969) 115 UNTS 331
24, 6869,
71, 83

Table of Documents

Annex 61a, Draft for the Rules of the Permanent Court of International Justice,
prepared by the Drafting Committee (Distr. 71), PCIJ Ser. D No. 2 (1922) 38
Annex 72a, Draft Rules of the Court, March 23rd, 1922, Third Reading (Distr.
109), PCIJ Ser. D No. 2 (1922)
38
Annex Ic, Rules of the Court, Draft Prepared by the Secretariat (Distr. II), PCIJ
Ser. D No. 2 (1922)
38
Declaration of the Government of the Democratic and Popular Republic of Algeria
Relating to the Commitments made by Iran and the United States of America,
19 January 1981, 20 ILM 224 (1981)
22
Declaration of the Government of the Democratic and Popular Republic of Algeria
Concerning the Settlement of Claims by the Government of the United States of
America and the Government of the Islamic Republic of Iran, 19 January 1981,
text in 20 ILM 230 (1981)
22
ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001),
Yearbook of the International Law Commission 2001, Volume Two,
Part II, 31.
71
Iran-US Claims Tribunal Rules of Procedure, 3 May 1983, http://www.iusct.
org/tribunal-rules.pdf
23
PCA Optional Rules for Arbitrating Disputes between States (1992), http://www.
pca-cpa.org/upload/files/2STAENG.pdf
15
PCA Optional Rules for Arbitrating Disputes between Two Parties of which only One
is a State (1993), http://www.pca-cpa.org/upload/files/1STAENG.pdf
15
PCA Optional Rules for Arbitration between International Organizations and Private
Parties (1996), http://www.pca-cpa.org/upload/files/IGO1ENG.pdf
15
PCA Optional Rules for Arbitration Involving International Organizations and
States (1996), http://www.pca-cpa.org/upload/files/IGO2ENG.pdf
15
PCA Optional Rules for Arbitration of Disputes Relating to Natural
Resources and/or the Environment (2001), http://www.pca-cpa.org/upload/files/
ENVIRONMENTAL(3).pdf
16

171

172

Table of Documents

Report by Georges Scelle (Special Rapporteur) on Arbitral Procedure, Doc.


A/CN.4/18 (1950), Yearbook of the International Law Commission 1950,
Vol. II, 114
13
Rules of Procedure for Arbitration Proceedings of ICSID, ICSID Convention,
Regulations and Rules, Washington DC 2003
29
The International Chamber of Commerce (ICC) Rules of Arbitration (1998)
http://www.iccwbo.org
33
The International Law Commissions Model Rules on Arbitral Procedure (1958),
Yearbook of the International Law Commission 1958, Vol. II, p. 87
34
The World Trade Organization Understanding on Rules and Procedures Governing
the Settlement of Disputes, http://www.wto.org/english/docs_e/legal_e/28-dsu_
e.htm
29
UNCITRAL Arbitration Rules (1976), http://www.uncitral.org/uncitral/en/
uncitral_texts/arbitration/1976Arbitration_rules.html
1922

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Index

A
Adaci, 45, 155
Admissibility, 15, 1012, 19, 26, 30, 3334,
40, 4748, 5051, 53, 59, 64, 6668,
7071, 73, 79, 81, 8890, 93, 105,
109, 111116, 118120, 122123,
129, 131, 133, 135, 138, 140141,
145, 147151, 153, 158161
Analogies, 1, 4
Analogy
private law, municipal law, 7, 10,
5456, 59, 157
Anzilotti, 23, 8, 1213, 38, 4346, 51, 53, 57,
61, 73, 75, 81, 83, 106107, 120,
132, 136, 152
Arbitration, 89, 1219, 21, 28, 33
Article 40
ICJ Statute, 152153
PCIJ Rules 1922, 3740, 4245, 135
Article 62
ICJ Statute, 105106
Article 63
ICJ Rules 1946, 48, 122, 145
ICJ Statute, 105, 108
PCIJ Rules 1936, 42, 4648, 120122, 145
Article 68
ICJ Rules 1972, 48, 145
Article 36 (1)
ICJ Statute, 80, 85, 95
Article 36 (2)
ICJ Statute, 78, 80, 91
Article 36 (6)
ICJ Statute, 74, 7778, 8384, 118
Article 38 (5)
ICJ Rules 1978, 9899, 101103
Article 40 (3)
ICJ Statute, 108

Article
ICJ
Article
ICJ
Article
ICJ
Article
ICJ

79
Rules 1978/2000, 110117
79 (7)
Rules 1978, 111112
79 (9)
Rules 1978/2000, 111
80, 24, 6
Rules 1978, 4950, 5356, 5862,
6465, 68, 70
ICJ Rules 1978/2000, 7376, 78, 8081,
8692, 102, 107, 112117, 119,
123, 126, 130132, 136141, 143,
145150, 152153, 158161

C
Canado Trindade, 37, 56, 5860, 63, 65,
148149
Claims Settlement Declaration (Iran-USA),
2225, 28
Chorzw, 3839, 4142, 44, 46, 66
Compromissory clause, 80, 8486, 8990
Connection (also see direct connection),
4041, 4451, 53, 57, 59, 6364,
67, 70
Connection in law, 125, 133, 161
Connection in fact, 94, 124125,
132, 160
Continental
law, 11
Counter-Memorial
presentation, 5, 135136
Counter-counterclaims
Iran-US Claims Tribunal, 12, 2829
Counterclaim to a counterclaim
counter-counterclaim, 142
Cross-action, 4, 45, 57, 6364

175

176

Index

D
Defence, 4, 41, 4345, 50, 53, 55, 5762,
6869, 157158
Definition, 48, 5054
Direct connection, 50, 6263, 70, 7376, 79,
87, 8990, 9294, 100, 102,
113114, 118120, 122128,
130133, 159161
Discontinuance see withdrawal

Jurisdiction, 3739, 4142, 45, 4851, 56, 59,


64, 70, 73161
jus cogens, 4, 68, 71

E
Eastern Greenland, 4142
English law, 11
Equality of parties, 5, 142144, 149
erga omnes, 6768, 70
Evolution
PCIJ, ICJ, 2, 4, 3750, 158

L
Litigation strategy, 3
Lauterpacht
Sir Elihu, 55, 68, 109, 125, 147,
149150
Sir Hersch, 52, 54, 74, 810, 94,
109, 116

F
Factual complex, 70, 9394, 124125, 127,
129, 132133, 161
forum prorogatum, 80, 9495, 97, 99103, 118
Fromageot, 44, 46, 51, 56, 64, 121, 155

M
McNair
Sir Arnold, 7, 9
Monetary gold
principle, 76, 104105, 108109, 160
Municipal law, 7, 9, 15, 2122

G
Gaja, 119, 148149
General declaration
Iran-USA, Algiers, 2223
General principles of law, 78

H
Higgins, 75, 85, 8789, 112, 115, 118, 144,
146, 148

I
ICC, 33
ICSID, 21, 2932
ILC model rules
arbitration, 34
Independent claim, 4950, 62
Intervention, 105, 108
Iran-US claims tribunal, 2123, 26
ITLOS, 24, 34

J
Juridical connection, 2, 40, 45
Juridical economy, 157
Juridical link, 120

K
Koroma, 58, 147, 150
Kreca, 50, 55, 5859, 64, 74, 125,
147, 149

N
Negulesco, 43, 45, 64, 106, 121, 132
Non-intervention, 129130
Non-use of force, 129130

O
Objections see preliminary objections
Oda, 58, 142, 144, 148
Official counterclaims
Iran-US claims tribunal, 24
Optional clause, 78, 80, 84, 9092, 94

P
Panevezys-Saldutiskis railway
case, 47
PCA
Permanent Court of Arbitration, 1318
PCIJ, 3744, 4748, 51, 53, 5657, 6062,
64, 66, 160
Preliminary objections, 7677, 90, 110112,
114115, 117118, 129
Presentation, 136, 138139, 141, 143, 145,
150, 152
Private law analogies see analogies

Index
Procedure, 1, 5
Procedural strategy, 157

R
Rationale, 4546, 5659
reconventio reconventionis non admittitur, 12
res judicata, 9, 12
Reservations, 84, 92, 116
Rigaux, 55, 88, 127
River Meuse
judgment, 47, 65
Rule 80
amendment 2000 see Article 80

S
Set-off, 4, 54, 57, 6566
Iran-US claims tribunal, 26
Schcking, 4446, 64, 121, 136
Special agreement, 7984, 9596, 98, 108
compromis, 1213, 21, 34

177
T
Third states, 5, 103, 106108, 152153
tu quoque, 4, 57, 6769, 159

U
UNCITRAL, 16, 1921, 23
US law, 11
Undue delay, 150

V
Van Eysinga, 43, 4546, 121, 136
Verhoeven, 5859, 65, 9293,
129, 131

W
Wang, 4546, 64
Weeramantry, 54, 61, 6869, 109, 144, 151
Withdrawal, 26, 46, 135, 154155, 162
WTO, 29