Marcelo G. KOHEN Autumn 2010-2011

1. Marcelo G. KOHEN Autumn 2010-2011 Judicial Settlement of Interstate Disputes

2. Counter-claims Session 8

3. Counter-claims Concept: A Respondent’s act aiming at instituting a new claim against the Applicant party in the same framework of proceedings brought by the latter. Conditions Characteristics Aims Judicial practice

4. Counter-claims Raison d’être 1. Judicial economy 2. Provides the Court with an overall view of the dispute. 3. A single settlement in a single judgment

5. Counter-claims Procedure: 1) Order: decision to accept or reject the counter-claims 2) If accepted: decision on the merits of the counter-claims will be contained in the same judgment as decision on the merits of the Applicant’s claims

6. Conditions Fixed by Article 80 of the Rules of the Court: 1. Made in the counter-memorial 2. Jurisdiction 3. “directly connected” with the subject matter of the claim of the other party

7. Jurisdiction Case Concerning the Factory at Chorzów (Claim for Indemnity), Merits, Judgment No. 13, 1928, PCIJ Series A. No. 17, September 13th, 1928, p. 37. In the subsequent proceedings, the Polish Government has not made any statement in regard to the question of the Court’s jurisdiction. It is impossible, therefore, to say whether it accepts the view of the German Government according to which it may be inferred that such jurisdiction exists under the Convention between Germany and Poland initialled at Locarno on October 16th, 1925, or whether it contends that the Court has jurisdiction on some other basis. In any case, it is certain that it has not withdrawn its claim and that, consequently, it wishes the Court to give judgment on the submission in question. For its part the German Government though basing the Court’s jurisdiction on the Locarno Convention, seems above all anxious that the Court should give judgment on the submission in the course of the present proceedings.

8. Jurisdiction Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010 • Italy invoked 1961 European Convention Art. 1 to base jurisdiction for counter-claim; • Article 27 (a) of the European Convention: “The provisions of this Convention shall not apply to: • disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute”; • ICJ held in Certain Property that the critical date for the European Convention is the ‘date of the facts or situations in relation to which the dispute arose’

9. Jurisdiction Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010 26. Whereas the Court notes that the dispute that Italy intends to submit to the Court by way of its counter-claim relates to the existence and the scope of the obligation of Germany to make reparation to certain Italian victims of serious violations of humanitarian law committed by Nazi Germany between 1943 and 1945 (see paragraph 22 above), rather than to the violations themselves; whereas, the Court observes that while those violations are the source of the alleged rights of Italy or its citizens, they are not the source or “real cause” of the dispute; whereas those violations are not therefore the facts or situations to which the dispute in question relates;

10. Jurisdiction Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010 • 1947 Peace treaty: Italy ‘agreed, with certain exceptions, to waive “on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945” (para. 27) • 1961 compensation agreements and German legislation did not affect the legal situation of Italian nationals at issue; • ‘the Court finds that the dispute that Italy intends to bring before the Court by way of its counter-claim relates to facts and situations existing prior to the entry into force of the European Convention as between the Parties; and whereas the said dispute accordingly falls outside the temporal scope of this Convention’ (para 30)

11. Direct connection Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 17 December 1997 33. Whereas the Rules of Court do not define what is meant by "directly connected"; whereas 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 whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and in law;

12. Characteristics Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 17 December 1997 27. Whereas it is established that a counter-claim has a dual character in relation to the claim of the other party; whereas a counter-claim 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, whereas at the same time, it is linked to the principal claim, in so far as, formulated as a ''counter“ claim, it reacts to it; whereas the thrust of a counter-claim 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 proceedings - for example, that a finding be made against the Applicant; and, whereas in this respect, the counter-claim is distinguishable from a defence on the merits;

13. Characteristics Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 17 December 1997 34. Whereas, in the present case, it emerges from the Parties' submissions that their respective claims rest on facts of the same nature; whereas they form part of the same factual complex since all those facts are alleged to have occurred on the territory of Bosnia and Herzegovina and during the same period; and whereas Yugoslavia states, moreover, that it intends to rely on certain identical facts in order both to refute the allegations of Bosnia and Herzegovina and to obtain judgment against that State;

14. Aim Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Reports, Counter-claim, Order of 10 March 1998 38. ...[W]hereas, with their respective claims, the two Parties pursuethe same legal aim, namely the establishment of legal responsibility for violations of the 1955 Treaty;

15. Jurisprudence Case Concerning Armed Activities on the Territory of the Congo (Democratic republic of the Congo v. Uganda), Order of 29 November 2001 37. Whereas it is appropriate in this case for the Court to consider Uganda's counter-claims under separate heads, according to whether they refer to: (1) acts of aggression allegedly committed by the Congo against Uganda; (2) attacks on Ugandan diplomatic premises and personnel in Kinshasa and on Ugandan nationals for which the Congo is alleged to be responsible: and (3) alleged violations by the Congo of the Lusaka Agreement ;

16. Jurisprudence Case Concerning Armed Activities on the Territory of the Congo (Democratic republic of the Congo v. Uganda), Order of 29 November 2001 42. Whereas... Uganda's [third counter-]claim concerns quite specific facts...; whereas these questions... concern facts of a different nature from those relied on in the Congo’s claims; whereas the Parties' respective claims do not therefore form part of the same factual complex; and... whereas the Parties are thus not pursuing the same legal aims; 43. Whereas the Court considers that the third counter-claim submitted by Uganda is therefore not directly connected with the subject-matter of the Congo’s claims…