A Common Law of Procedural Adjudication: Working towards Precedential Effect in ICJ Preliminary Objections Judgments
The Peace Palace, the home of the International Court of Justice in The Hague, Netherlands.
By: Allyson Ping; Staff Member
When distilling and applying substantive law for a decision on the merits, the International Court of Justice (ICJ) can rely on various sources of international law, ranging from treaties concluded between litigants to general principles of international law. Central to this reliance is the freedom to change its mind: unlike the practice of common law courts, the ICJ is not bound to its own precedent. Given the breadth of substantive legal issues submitted to the court, the flexibility of the Court’s approach makes sense: different laws apply in different disputes. However, in order to maintain its integrity in procedural practice, the Court should treat prior decisions on admissibility and jurisdiction as ‘extra’ persuasive.
The International Court of Justice (ICJ) is the United Nations’ principal judicial organ. From its seat in the Hague, the Court settles inter-state disputes and renders advisory opinions on International Law. Disputes between states are resolved either at the preliminary objections stage, or adjudicated on the merits. When the Court bifurcates its decision-making, it elects to first render an opinion on preliminary objections before proceeding to the merits. Bifurcated disputes which are resolved at the preliminary objections stage do not proceed to the merits.
While a judgment on the merits requires the Court to distill and apply substantive international law according to Article 38 of its statute, the court is tasked with interpreting an Article of its statute in preliminary objections: Article 36. Article 36 serves as the basis for the Court’s exercise of jurisdiction, and is often the subject of dispute in preliminary objections when parties contend the Court either cannot or should not exercise jurisdiction.
Rules of ICJ Precedent: Substantive Law
One crucial difference between the ICJ’s jurisprudence and that of common law legal regimes is that the ICJ decisions do not carry binding precedential effect. Thus, each of the Court’s decisions binds only the two parties in dispute before it, and is merely persuasive in any other proceeding. There are credible justifications for this rule. For one, International Law is evolutionary by nature, leaving open a possibility that new norms crystallize between each Court decision. Jurisprudential rigidity would leave the Court to adjudicate disputes using a different set of laws than that which it is obligated to apply: conventional and customary international law.
Rules of ICJ Precedent: Procedural Law
With respect to its own procedure, however, the court’s ability to apply conventional or customary international law is limited. Here, the Court is insulated from State practice–specifically, the procedural laws of domestic legal regimes, since these laws vary extensively across jurisdictions. For example, many civil law jurisdictions do not mandate the exclusion of evidence derived from illegally-obtained evidence, whereas common law jurisdictions commonly use the ‘fruit of the poisonous tree’ rule to exclude illegally obtained evidence and its derivatives. . With this concern in mind, the drafters of the ICJ Statute created a safety valve: the Court may create “rules for carrying out its functions”, including “rules of procedure.” From the authority granted within this provision, the ICJ created the Rules of the Court, which govern the election of judges, makeup of the court, the court’s decision-making authority, and functions of the court’s registrar, among other rules necessary to the court’s function, all of which are subject to amendment. Scholars posit that litigants, by accepting the Court’s jurisdiction, agree to be bound by these rules throughout the adjudicatory process.
Although the Court’s Statute provides that it may create procedural rules for its function, the Court has construed this power narrowly, as demonstrated by the indeterminate nature of its published Rules. The Court limits its language to statements like “the Court may . . . revoke” and “if the Court considers it necessary . . . it shall issue an order to this effect”, indicating a willingness to assess procedural issues on a case-by-case basis, as opposed to a desire to confine itself to certain outcomes.
Preliminary Objections: A Quasi-Procedural Challenge
The Court’s exercise of jurisdiction does not appear to be categorized as a ‘procedural’ rule by the drafters of the ICJ Statute. For one, Article 36, which governs the Court’s jurisdiction, is listed under the Chapter governing “Competence of the Court”, while the Court’s authority to make procedural rules is granted under the Chapter governing “Organization of the Court.” Additionally, the Court does not treat its adjudication of jurisdictional disputes as a judgment on the merits. Instead, it has created a third category for these threshold-like disputes, known as “preliminary objections.”
Questions resolved in the preliminary objections stage are ‘procedural’ insofar as decisions about jurisdiction and justiciability do not breach the substance of claims made by each party. Nevertheless, they are still highly fact-dependent. It would be remarkably difficult for the Court to codify decisions on jurisdiction and admissibility into its procedural rulebook, which is more pertinent to the day-to-day practice of the Court and litigants before it. Consequently, it might be useful to think of preliminary objections as quasi-procedural challenges.
Just as it is constrained from applying Conventional and Customary International Law (as Article 38 instructs) to pure procedural rulings, the Court is similarly situated when making quasi-procedural decisions. The outcome of preliminary objection adjudications depends on the Court’s interpretation of its jurisdictional power within the confines of its Statute, at Article 36. Even where it decides jurisdiction exists, the Court has expressed willingness to preclude claims based on certain principles, such as res judicata, third-party due process concerns, (lack of) diplomatic protection standing, among a host of other reasons.
Although some of these bases for preclusion might qualify as “general principles” under Article 38(1)(C) of the Court’s statute, they are, for a large part, not codified in conventions, not crystallized into custom, and thus, derivatives of a judge-created “common law of international adjudication”. Given the uniqueness of the ICJ’s jurisdictional mandate (consent-based jurisdiction), as well as the inconsistency of State parties’ procedural laws, it is unlikely that the court’s quasi-judicial creations (for example, the Monetary Gold principle) will achieve the requisite widespread, consistent state practice and opinio juris to crystallize into custom. Without the legal authority provided in Article 38(1)(A)–(C), these legal concepts, which are often outcome-determinative in preliminary objections decisions, are relegated to the confines of 38(1)(D), alongside ICJ judgments on the merits. Since these judgments are not precedential, an effective “common law of international adjudication” appears difficult to maintain without according extra-persuasive weight to quasi-procedural judgments on preliminary objections.
This idea is supported by a number of scholars. Shabtai Rosenne, a famed ICJ scholar, noted that lacunae, or gaps, were perhaps deliberately created by Statute’s drafters. Such lacunae, as authors have noted, should be filled by the Court’s jurisprudence; particularly where state practice cannot fill it.
So as not to contravene Article 59 of its Statute, and to preserve the evolutionary nature of international law, the Court should not necessarily ‘freeze’ standards of law established in prior jurisdictional decisions. Established standards should be left open to revision. Since the Court releases its decisions publicly, future litigants are given notice when the Court revises interpretations of its jurisdictional reach. However, if the Court, under a capacious understanding of its Article 59 authority, chooses not to consider a jurisdictional standard it had previously applied, its action would likely confuse both future litigants and those party to the proceedings.
As an example, the Court currently faces calls to dispense with continued application of its Monetary Gold principle. While it has expanded and retracted the principle’s reach through various applications, these applications are distinct from dispensing with the principle altogether in situations where it might apply–effectively ‘overturning’ preliminary objections precedent. Importantly, pending litigants have relied on the continued application (or at least, contemplation of application) of this principle in oral and written proceedings, as the basis of preliminary objections.
The drafters of the ICJ’s Statute reserved interpretation of its jurisdictional reach to the Court itself. Given that the Court cannot rely on practices of States’ domestic legal regimes to interpret its own procedure, its should strive to maintain legal consistency in its jurisdictional determinations by giving extra-persuasive weight to prior decisions, and previously applied legal standards, beyond that which is given to a ‘subsidiary means’ of interpretation, under which category its prior decisions (on the merits) usually fall.
Allyson Ping is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of California, Los Angeles.