1 The only two ICJ precedents are Asylum (Peru v. Colom.), 1950 ICJ Rep. 266 (Nov. 20) and Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176 (Aug. 27). Judge Oda discussed these precedents in paras. 6–7 of part III of his separate opinion appended to the Oil Platforms Order. However, in contrast to the recent Orders, counterclaims were not dealt with as a preliminary matter in the 1950s cases, which were also governed by Rules of Court that were worded slightly differently. See also United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7, 15, para. 24 (Order of Dec. 15). For a brief description of the three precedents (the Chorzów Factory (Merits), Diversion of Water from the Meuse and Panevezys-Saldutiskis Railway cases) in the Permanent Court of International Justice (1920–1945), see 3 Shabtai Rosenne, The Law and Practice of the International Court, 1920–1996, at 1274 (3d ed. 1997); and Geneviève Guyomar, Commentaire du Règlement de la Cour Internationale de Justice Adopté le 14 avril 1978—Interprétation et pratique 519–22 (1983). See also Manley, O. Hudson, The Permanent Court of International Justice, 1920–1942, at 292, 430, 539 (1943)Google Scholar; Miaja de la Muela, A., La Reconventión ante el Tribunal international de Justicia, in Estudios de derecho procesal en honor de Niceto Alcalá-Zamora y Castillo , 24 Boletín Mexicano de Derecho Comparado 757 (1975)Google Scholar.

2 ICJ Rules of Court, Apr. 14, 1978, Art. 80, para. 3, reprinted in 73 AJIL 748, 761 (1979) (“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.”). The original Rules of Court, adopted by the ICJ in 1946, dealt with counterclaims in Article 63, which remained unchanged in Article 68 of the 1972 amendment of the Rules.

3 Rules of Court, supra note 2, Art. 80, para. 1 (“A counter-claim may be presented 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 Court”).

4 Yugoslavia agreed with Bosnia that a breach of the Genocide Convention cannot serve as an excuse for another breach of the same treaty, a point confirmed by the Court in paragraph 35.

5 Order of Dec. 17, 1997, paras. 26–30 [hereinafter Genocide slip op.].

6 It is not entirely clear from the operative paragraph 43(A) of the Order which of the Yugoslav submissions referred to in paragraph 29 are considered acceptable counterclaims. The Court merely referred to “the counter-claims submitted by Yugoslavia.”

7 Genocide slip op., para. 31. The Court cited this statement in its entirety in the Oil Platforms Order. Order of Mar. 10, 1998, para. 31 (released Mar. 19, 1998) [hereinafter Oil Platforms slip op.]. Judge Oda’s separate opinion indicates that Iran had already been informed of the Order on Mar. 10, 1998.

8 Genocide slip op., para. 34. This means that a counterclaim does not have to be limited exclusively to facts presented by the applicant in the main proceedings and that the respondent is entitled to submit new facts by a counterclaim in its countermemorial, so long as the counterclaim can be said to be directly connected to the applicant’s claim and come within the Court’s jurisdiction.

9 Id., para. 35.

10 Only Vice-President Weeramantry dissented. Judge ad hoc Kreća (appointed by Yugoslavia) appended a declaration and Judge Koroma and Judge ad hoc Lauterpacht (appointed by Bosnia) appended separate opinions to the Order.

11 Genocide slip op., para. 43 (operative subpara. (A)).

12 Id. (operative subpara. (B)).

13 8 UST 899, 284 UNTS 93.

14 Oil Platforms slip op., para. 41. Paragraph 38 of the Genocide Order contains nearly identical language. It remains to be seen how the Court will interpret this statement in any subsequent stages of the case, especially in light of the explicit reservations made by Iran and the United States in their written observations.

15 See Oil Platforms (Iran v. U.S.), Preliminary Objections, Judgment, para. 55(2) (Dec. 12, 1996).

16 Oil Platforms slip op., paras. 34–36 (issue of jurisdiction). In her separate opinion, Judge Higgins took issue with this part of the Order. According to her, the Court should have addressed the U.S. arguments based on Article X, paragraphs 2–5 of the Treaty and the Order should have contained a reasoned decision on the Court’s apparent rejection of those arguments. Judge Higgins also did not understand why the Court allowed Iran’s jurisdictional argument concerning the question whether Article X(1) of the Treaty is restricted to commerce “between” the parties to go to the merits, whereas it had declined to enter into a discussion of the same question in its decision on jurisdiction of December 12, 1996. Similarly, she disagreed with the Court’s silence on Iran’s argument that certain vessels featured in the U.S. counterclaim and identified as warships are excluded from the reach of Article X(1).

17 Id., paras. 37–39 (issue of connection, reflecting paras. 33–34 of the Genocide Order).

18 Only Judge ad hoc Rigaux (appointed by Iran) dissented. Judges Oda and Higgins appended separate opinions to the Order.

19 Oil Platforms slip op., para. 46 (operative subpara. (A)).

20 Id. (operative subpara. (B)).

21 In the Genocide case, the Court dismissed Yugoslavia’s preliminary objections in its Judgment of July 11, 1996. See my case note in 91 AJIL 121 (1997) (coauthored with Paul Szasz). In the Oil Platforms case, the Court dismissed the preliminary objection of the United States in its Judgment of December 12, 1996. See my case note in 91 AJIL 518 (1997).

22 As Vice-President Weeramantry and Judge Koroma complained in their respective opinions appended to the Genocide Order, the Order was issued more than four years after proceedings were instituted by Bosnia and the case is still not ready for hearings on the merits. As far as the Court’s current docket is concerned, the instrument of counterclaims is still available to the United Kingdom and the United States in the cases brought against them by Libya concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, in which the Court upheld its jurisdiction on February 27, 1998, and to Nigeria and Canada if the Court upholds its jurisdiction in Land and Maritime Boundary between Cameroon and Nigeria and Fisheries Jurisdiction (Spain v. Canada), respectively.

23 The Court’s statement in paragraph 32 of the Genocide Order, that “in the present case it is not disputed that the Yugoslav counter-claims were ‘made in the Counter-Memorial of the Party presenting it, and . . . appear as part of the submissions of that Party’, in accordance with Article 80, paragraph 2, of the Rules of Court,” stands in direct contrast with the Court’s earlier summary of Bosnia’s position in paragraphs 11–14.

24 See the identical concluding words of paragraphs 42 and 45 of the Genocide and Oil Platforms Orders, respectively. The Court sought to remedy the effect that joinder of the counterclaim to the main proceedings might have on the equality of the parties, stemming from the fact that the respondent could address its counterclaims in both the countermemorial and the rejoinder, whereas the applicant could respond only once in writing through its reply.

25 See the identical wording of paragraphs 39 and 42 of the Genocide and Oil Platforms Orders, respectively. Both Bosnia and Iran sought to avoid a joinder of the counterclaims and the original claims by pointing to the detrimental effects that it could have for the rights and interests of third states, which would not be informed of any counterclaims, but only of any new case pursuant to Article 40(3) of the Statute. See Genocide slip op., para. 15, and Oil Platforms slip op., para. 20.

26 Genocide slip op., para. 31, and Oil Platforms slip op., para. 33 (emphasis added).

27 According to Judge Higgins, the correct interpretation of the requirement that the counterclaim “come[ ] within the jurisdiction of the Court” is to inquire whether the Court would have had jurisdiction to deal with the claims of the United States, as they related to Article X, paragraphs 2–5 of the Treaty, had they been the subject of an ordinary application to the Court.

28 Manley Hudson believed that the proviso that the counterclaim must “come within the jurisdiction of the Court” was quite unnecessary “as to direct counter-claims, for once established the jurisdiction of the Court would seem to extend to any counter-claim directly connected with the subject of the application.” HUDSON, supra note 1, at 292–93 (emphasis added). It is unclear from this statement whether Hudson also accepted “indirect” counterclaims, for which the proviso might make sense.

29 Genocide slip op., para. 17, and Oil Platforms slip op., para. 21.

30 Genocide slip op., para. 25.

31 Oil Platforms slip op., para. 31.

32 This discretion derives from Article 30 of the ICJ Statute. In establishing the Rules of Court, the Court retained this basic discretion. The Statute itself is completely silent on the issue of counterclaims. However, it is true that Articles 43(5) and 45–47 of the Statute employ the word “hearing” to denote oral proceedings.

33 Judge ad hoc Lauterpacht devoted the first part of his separate opinion to the Genocide Order to this procedural issue, in which he argued that the Court should have granted the parties an opportunity to comment orally, i.e., at a public hearing, on each other’s position. In his separate opinion to the Oil Platforms Order, Judge Oda argued that all issues relating to the respondent’s counterclaim should be discussed in parallel with the original claim of the applicant in the written and oral proceedings on the merits, support for which he found in precedent. According to the senior judge, the procedure by which the Court determines the admissibility of a counterclaim in the form of an order at a preliminary stage is irregular. Instead, the Court should give its decision on the admissibility of a counterclaim in its judgment on the merits.

34 Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice 171 (1983). The same statement is repeated in Rosenne, supra note 1, at 1273. Presumably, it is the Court’s doubt that counts, stemming from the initial opposing views expressed by the parties to the President of the Court. Hence, the provision is triggered by the applicant’s indicating its opposition to the counterclaims filed by the respondent. Judge ad hoc Lauterpacht acknowledged in paragraph 4 of his separate opinion to the Genocide Order that the Court’s practice in relation to Articles 36(2), 56(2) and 67 of the Rules of Court, which all contain the words “after hearing the parties,” has been merely to give the parties the opportunity to present their views in writing.

35 In the Oil Platforms case, the record indicates that Iran unsuccessfully requested a hearing no less than four times: namely, in a letter of October 2, 1997; during the meeting with the Vice-President on October 17, 1997; in a letter of October 27, 1997; and finally, in its written observations filed on November 18, 1997, entitled “Request for hearing in relation to the United States counter-claim pursuant to Article 80(3) of the Rules of Court.” The United States argued that a hearing is required only where there is doubt as to the direct connection between the counterclaim and the original claim, which doubt it maintained was lacking in this instance.

36 See Rosenne, supra note 1, at 1274.

37 The Court’s treatment of the U.S. counterclaim in Rights of Nationals of the United States of America in Morocco (France v. United States) lends support to this conclusion. In dealing with the various submissions in that case, the Court did not address the connection of the U.S. counterclaim to the French claim. 1952 ICJ Rep. 176 (Aug. 27). See also Judge ad hoc Kreca’s declaration appended to the Genocide Order.

38 Further to a request from Bosnia as applicant in the Genocide case, President Schwebel issued an Order on January 22, 1998, extending the time limit for the filing of the reply of Bosnia to April 23, 1998, and the time limit for the filing of the rejoinder of Yugoslavia to January 22, 1999. See ICJ Communiqué No. 98/01 (Jan. 22).