Published online by Cambridge University Press: 20 February 2018
This article considers the approach to the res judicata principle taken by the International Court of Justice (ICJ or the Court) and, specifically, its application in its 2016 judgment on preliminary objections in the latest dispute between Nicaragua and Colombia. The judgment joins the small number of ICJ decisions in which the Court was evenly split, an altogether rare situation, which, at the time of the decision, had not occurred since the Nuclear Weapons Advisory Opinion. Intriguingly, such a fracture seems to have been prompted by differences over the operation of a procedural principle the understanding of which is comparatively uncontroversial. Upon closer analysis, however, the disagreement reveals that more significant questions were at stake, with members of the minority issuing a vocal joint dissent and several individual declarations. This study will move in three parts: first, it will provide an overview of the nature and purpose of the principle of res judicata, its application in international adjudication, and its use by the ICJ; second, it will analyze the Court's reading of the principle in the case at issue; third, it will expose the broader implications of one such approach for the role and authority of the World Court and the international judiciary.
1 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2017 (not yet published) (hereinafter Delimitation of the Continental Shelf). On the same day, the Court also delivered its judgment in another case brought by the same applicant against the same respondent, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2017 (not yet published).
2 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012,  ICJ Rep. 624 (hereinafter Territorial and Maritime Dispute).
3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,  ICJ Rep. 226. The Court was also evenly split in the controversial South West Africa (Ethiopia v. South Africa), Second Phase, Judgment of 18 July 1966,  ICJ Rep. 6, and so was the Permanent Court of International Justice (PCIJ) in the SS Lotus case (France v. Turkey), PCIJ Rep Series A No. 10. More recently, the Court found itself evenly split in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment of 5 October 2016 (not yet published).
4 The use of the Latin expression is widespread in English and German speaking countries, but literal translations are more commonly used elsewhere: for example, cosa juzgada, chose jugée, or cosa giudicata in Spanish, French, and Italian respectively.
5 Sinai, Y., ‘Reconsidering Res Judicata: A Comparative Perspective’, (2011) 21 Duke Journal of Comparative & International Law 353Google Scholar.
6 R.A. Posner, ‘An Economic Approach to Legal Procedure and Judicial Administration’, (1973) The Journal of Legal Studies 399, at 444.
7 The two concepts may be more or less neatly distinguished in domestic law: by way of example, Art. 324 of the Italian Code of Civil Procedure describes the essential elements of a final judgment (formal res judicata), whereas Art. 2909 of the Civil Code illustrates the effects of the former (substantive res judicata). On the matter see, inter alia, M. Cappelletti, Civil Procedure in Italy (2013), 251.
8 The first distinction is more common in the United States, whereas the second is typical of England and Canada. See Sinai, supra note 5, at 357.
9 See also the interim report of the International Law Association Committee on International Commercial Arbitration, ‘“Res judicata” and Arbitration’ (Berlin, 2004), 14.
10 On res judicata in public international law in general see Grisel, E., ‘Res judicata: l'autorité de la chose jugée en droit international’, in Dutoit, B. and Grisel, E. (eds.) Mélanges Georges Perrin (1984), 139Google Scholar; L.N.C. Brant, L'autorité de la chose jugée en droit international public (2003).
11 The Pious Fund Case (United States of America v. Mexico) Vol IX UNRIAA 1, at 12 (1902); In the Matter of the SS Newchwang (Great Britain v. United States), Vol VI UNRIAA 64, at 65 (1921); Trail Smelter case (United States, Canada) Vol III UNRIAA 1905, at 1950 (1941): ‘That the sanctity of res judicata attaches to a final decision of an international tribunal is an essential and settled rule of international law.’
12 Interpretation of Judgments Nos 7 & 8 Concerning the Case of the Factory at Chorzów (Germany v. Poland), PCIJ (Series A) No. 11, at 27 (Judge Anzilotti, Dissenting Opinion). One such qualification was, however, not entirely novel; in fact, it was cited to elucidate the meaning of Art. 38(1)(c) during the works of the Advisory Committee of Jurists: see PCIJ Procès-Verbaux of the Proceedings of the Committee of Jurists, June 16th-July 24th 1920 (1920), at 335 (statement of Lord Phillimore). There has been consistent agreement among scholars as to the qualification of res judicata as a general principle of law in the sense of Art. 38(1)(c) of the Court's Statute: see H. Lauterpacht, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (1927), 206; B Cheng, General Principles of Law: As Applied by International Courts and Tribunals (1953), 337. For more recent assessments see Scobbie, I., ‘Res Judicata, Precedent and the International Court: A Preliminary Sketch’, (1999) 20 Australian Year Book of International Law 299, at 299CrossRefGoogle Scholar; C. Brown, A Common Law of International Adjudication (2007), 155–6; Reinisch, A., ‘The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes’ (2004), 3 The Law & Practice of International Courts and Tribunals 37, at 44CrossRefGoogle Scholar.
13 Other principles, such as comity, have sometimes been invoked for these purposes: see Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, Decision on Jurisdiction, 27 November 1985, ICSID Case No. ARB/84/3. On comity, see Schultz, T. and Ridi, N., ‘Comity and International Courts and Tribunals’ (2017) 50 (3) Cornell International Law Journal (not yet published)Google Scholar.
15 Walters, G.L., ‘Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?’, (2012) 29 Journal of International Arbitration 651Google Scholar; M. Waibel, ‘Investment Arbitration: Jurisdiction and Admissibility’, University of Cambridge Faculty of Law Research Paper No. 9/2014.
16 Wittenberg, J.C., ‘La recevabilité des réclamations devant les juridictions internationales’, (1932/III) 41 RCADI 5, at 8Google Scholar.
17 G. Fitzmaurice, The Law and Procedure of the International Court of Justice (1986), 438–9; Z. Douglas, The International Law of Investment Claims (2005), 146.
18 See Paulsson, J., ‘Jurisdiction and Admissibility’, in Aksen, G. et al. (eds.), Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in honour of Robert Briner (2005), 601Google Scholar.
20 Such provisions are, however, often broader in scope. For a detailed overview see Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), Ch. 5.
22 Waibel, M., ‘Coordinating Adjudication Processes’, in Douglas, Z., Pauwelyn, J. and Viñuales, J.E (eds.), The Foundations of International Investment Law: Bringing Theory into Practice (2014), 499 at 522CrossRefGoogle Scholar; On lis pendens in general see C. McLachlan, Lis Pendens in International Litigation (2009).
23 H. Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (2013), 176–7. On res judicata in international commercial arbitration see S. Schaffstein, The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals (2016). A further significant problem is that of the pendency of annulment proceedings in relation to a previous decision: see Perenco Ecuador Limited v. Ecuador, ICSID Case No. ARB/08/6, Decision on Perenco's Application for Dismissal of Ecuador's Counterclaims, 18 August 2017, para. 49.
25 On the concept of ‘fragmentation’ see M. Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission’, UN Doc. A/CN.4/L.682 (13 April 2006), para. 8. See also Guillaume, G., ‘Advantages and Risks of Proliferation: A Blueprint for Action’, (2004) 2 Journal of International Criminal Justice 300, at 303CrossRefGoogle Scholar; Crawford, J. and Nevill, P., ‘Relations between International Courts and Tribunals: The “Regime Problem”’, in Young, M.A. (ed.), Regime Interaction in International law: Facing Fragmentation (2012), 211Google Scholar; J. Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law (2014), 212; P. Webb, International Judicial Integration and Fragmentation (2013).
26 Shany, supra note 20, Ch. 5; Brown supra note 12, at 29; Crawford and Nevill, supra note 25, at 239; Wehland, supra note 23, at 125–6; C. Giorgetti, ‘Horizontal and Vertical Relationships of International Courts and Tribunals - How Do We Address Their Competing Jurisdiction?’, (2015) 30 ICSID Review 98.
27 The CME / Lauder saga is a paradigmatic example: see Ronald S. Lauder v. The Czech Republic, UNCITRAL, Final Award, 3 September 2001; CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Partial Award, 13 September 2001; CME Czech Republic B.V. v. The Czech Republic, UNCITRAL, Final Award, 14 March 2003. See also Magnaye and Reinisch, supra note 24, at 278.
28 One example is Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/ 12/1, Award, 25 August 2014, paras. 7.17 ff. See also Magnaye and Reinisch, supra note 24, at 285.
29 Precedents may be found, for example, in the Orinoco case, where Umpire Plumley said that ‘[e]very matter and point distinctly in issue in said cause and which was directly passed upon and determined in said decree, and which was its ground and basis, is concluded by said judgment, and the claimants themselves and the claimant government in their behalf are forever estopped from asserting any right or claim based in any part upon any fact actually and directly involved in said decree . . . The general principle, announced in numerous cases is that a right, question, or fact distinctly put in issue and directly determined, by a court of competent jurisdiction as a ground of recovery, cannot be disputed’: Claim of Company General of the Orinoco, Report of French-Venezuelan Mixed Claims Commission of 1902, at 355.
30 Waibel, supra note 22, at 523.
31 Société commerciale de Belgique (Socobelge) (Belgium v. Greece), PCIJ Series A/B No. 78, at 178.
32 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991,  ICJ Rep. 53; Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment of 18 November 1960,  ICJ Rep. 192.
33 Reisman, W.M., ‘The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication’, (1996) 258 RCADI 9, at 34Google Scholar. See also, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001,  ICJ Rep. 40, at 76, para. 111.
34 S. Rosenne, The Law and Practice of the International Court, 1920–2005 (2005), 1599.
35 The judgment becomes final and binding upon the parties on the day of its reading: see Art. 94 of the Rules of Court.
36 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Nigeria v. Cameroon), Preliminary Objections, Judgment of 25 March 1999,  ICJ Rep. 31, at 36, para. 12.
37 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment of 27 November 1950,  ICJ Rep. 395, at 402; Request for Interpretation - Land and Maritime Boundary between Cameroon and Nigeria, supra note 36, at 36–7, para. 12. See also Interpretations of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment no. 11 1927, PCIJ, Series A No. 13, at 11.
38 M. Shahabuddeen, Precedent in the World Court (2007), 99–100; Rosenne, supra note 34, at 1585.
39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007,  ICJ Rep. 43, at 91, para. 117 (hereinafter Bosnian Genocide-Merits). It must be observed that the Court accepted that a finding that it had jurisdiction did not prevent the subsequent examination of ‘any jurisdictional issues later arising that have not been resolved, with the force of res judicata, by such judgment’, but only insofar as a decision on them would not contradict the findings made in the earlier judgment (paras. 127–8).
40 The question of whether ‘they attract the obligation of compliance’, which must be answered in the affirmative, is conceptually distinct: see Rosenne, supra note 34, at 804.
41 Brown, C., ‘Article 59’, in Zimmermann, A. et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), 1416Google Scholar.
42 Rosenne, supra note 34, at 28–9.
43 Brown, supra note 41.
44 Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Preliminary Objections, Judgment of 24 July 1964,  ICJ Rep. 6, at 20.
45 Rosenne, supra note 34, at 1612.
46 Bosnian Genocide-Merits, supra note 39, at 94, para. 123.
47 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-claims, Judgment of 6 November 2003,  ICJ Rep. 161, at 218, para. 125.
49 Polish Postal Service in Danzig, Poland v. High Commissioner of the League of Nations and Free City of Danzig, Advisory Opinion, PCIJ Series B, No. 11, at 29–30.
50 Brown, supra note 41. It bears noting that the distinction between dispositif and motifs receives implicit endorsement in the wording of Art. 95 of the Rules of Court, according to which ‘[t]he judgment . . . shall contain . . . the reasons in point of law; the operative provisions of the judgment’. On the lack of relevance of this provision for the distinction between ratio and obiter see Rosenne, supra note 34, at 1556.
51 Bosnian Genocide-Merits, supra note 39, at 95, para. 126.
53 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004,  ICJ Rep. 279, at 316–17, paras. 96–7.
54 Bosnian Genocide-Merits, supra note 39, at 76, para. 80 et seq.
60 Ibid., at 267, para. 3 (Judges Shi, Ranjeva, and Koroma Dissenting Opinion). Wittich, S., ‘Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case’, (2007) 18 EJIL 591, at 606CrossRefGoogle Scholar; See also, generally, Amerasinghe, C.F., ‘The Bosnia Genocide Case’, (2008) 21 LJIL 411CrossRefGoogle Scholar; Ottolenghi, M. and Prows, P., ‘Res Judicata in the ICJ's Genocide Case: Implications for Other Courts and Tribunals’, (2009) 21 Pace International Law Review 37Google Scholar.
61 Wittich, supra note 60, at 618.
62 Territorial and Maritime Dispute, supra note 2, at 719, para. 251.
63 Delimitation of the Continental Shelf, supra note 1, para. 47.
68 Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment of 21 March 1959,  ICJ Rep. 6, at 26.
69 Delimitation of the Continental Shelf, supra note 1, paras. 52–3.
71 Delimitation of the Continental Shelf, supra note 1, para. 72.
74 Ibid., paras. 9–18 (Judges Yusuf, Cançado Trinidade, Xue, Gaja, Bhandari, Robinson, and Brower Joint Dissenting Opinion), citing Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003,  ICJ Rep. 161, at 172–3, para. 20; Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013,  ICJ Rep. 44, at 66, para. 35; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment of 10 December 1985,  ICJ Rep. 192.
82 Ibid., para. 48. Judge Robinson observed in his separate dissent that the ‘invention’ of this requirement by the majority resulted in the application of treaty obligations between a state party and a non-state party of the UNCLOS (paras. 15–18). See, however, Separate Opinion of Judge Owada, paras. 33–9.
83 Delimitation of the Continental Shelf, supra note 1, para. 59 (Judges Yusuf, Cançado Trinidade, Xue, Gaja, Bhandari, Robinson, and Brower Joint Dissenting Opinion).
85 Delimitation of the Continental Shelf, supra note 1, paras. 20 ff. (Judge Donoghue Dissenting Opinion).
87 See generally M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).
89 Delimitation of the Continental Shelf, supra note 1, at 8, para. 36 (Judge Donoghue Dissenting Opinion).
90 Territorial and Maritime Dispute, supra note 2, at 756, para. 17 (Judge Donoghue Dissenting Opinion).
91 Bosnian Genocide-Merits, supra note 39, para. 126.
92 Wittich, supra note 60, at 605.
93 In favour: Judges Abraham, Owada, Yusuf, Greenwood, Bennouna, Tomka, Sebutinde, Skotnikov (ad hoc for Nicaragua in the latter case). Against: Judges Yusuf, Cançado Trinidade, Xue, Donoghue.
94 Territorial and Maritime Dispute, supra note 2, at 665, para. 112.
95 See Joint Dissenting Opinion, para. 46.
96 See Brown v. Allen, 344 U.S. 443 (1953), at 540 (Jackson, J. concurring): ‘We are not final because we are infallible, but we are infallible only because we are final’.
97 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2017 (not yet published).
98 Separate Opinion of Judge Greenwood, para. 6.
99 Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962,  ICJ Rep. 6, at 34.
100 Rosenne, supra note 34, at 209; de Visscher, C., ‘La chose jugée devant la cour internationale de La Haye’ (1965) 1 Revue Belge de Droit International 5, at 9Google Scholar. See also Brown, supra note 41. The expression ‘erga omnes’ has also been employed in this context to refer to the precedential force of the pronouncements of international adjudicators: L. Condorelli, ‘L'autorité des décisions des juridictions internationales permanents’, in La jurisdiction internationale permanente, Colloque SFDI de Lyon 1987 (1987), 277. Note that the view that a judgment on a territorial question should have erga omnes effect has been disputed by Scobbie relying on the authority of Continental Shelf (Libyan Arab Jamahiriya/Malta) (Italian Intervention),  ICJ Rep. 3, at 26–7. On that occasion, however, the Court approached the problem from the perspective of an adjudicator having to deal with prior decisions on the same issue and that of a state that could have potentially intervened, but did not. Suffice it to observe that the expression is used here in its broader scope, envisaged by De Visscher and acknowledged by Scobbie, that the opposability of the judgment to other states descends from its capability to establish an objective state of affairs. That no decision of international tribunals may ‘cast international law in stone’ is readily acknowledged: see Talmon, S., ‘The South China Sea Arbitration and the Finality of “Final” Awards’, (2017) 8 Journal of International Dispute Settlement 388, at 391Google Scholar.
102 For an overview of the relationship between negotiation and judicial settlement see K. Wellens, Negotiations in the Case Law of the International Court of Justice: A Functional Analysis (2016). See also J.G. Merrills, International Dispute Settlement (2011), 158. Moreover, the Court has always been mindful of the fact that ‘The judicial settlement of international disputes “is simply an alternative to the direct and friendly settlement of such disputes between the parties”’: see North Sea Continental Shelf (Federal Republic of Germany/Denmark), Judgment of 20 February 1969,  ICJ Rep. 48, para. 87, citing with approval Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), Order, PCIJ Series A No. 22.
103 Delimitation of the Continental Shelf, supra note 1, para. 45 (Judge Donoghue Dissenting Opinion) (emphasis added). Judge Greenwood appears to disagree with this proposition in his dissent (para. 6).
105 Delimitation of the Continental Shelf, supra note 1, para. 66 (Judges Yusuf, Cançado Trinidade, Xue, Gaja, Bhandari, Robinson, and Brower Joint Dissenting Opinion).
106 M.R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1991), 145. See also Delimitation of the Continental Shelf, supra note 1, para. 30 (Judge Owada Separate Opinion).
107 Request for Interpretation - Land and Maritime Boundary between Cameroon and Nigeria, supra note 36, at 31, 36 (para. 12).
109 Harnon, E., ‘Res Judicata and Identity of Actions Law and Rationale’, (1966) 1 Israel Law Review 539, at 539Google Scholar; Cited in Gal-Or, supra note 108, at 51.
110 Art. 61 provides that an application for revision of a judgment may only be based upon the discovery of a decisive fact, unknown to the Court and to the party claiming revision at the time of the judgment, and on condition that its ignorance was not due to the party's negligence.
111 Weil, P., ‘The Court Cannot Conclude Definitively . . . Non Liquet Revisited Chapter 1: Questions of Theory’, (1998) 36 Columbia Journal of Transnational Law 109, at 114Google Scholar.
112 Delimitation of the Continental Shelf, supra note 1, para. 67 (Judges Yusuf, Cançado Trinidade, Xue, Gaja, Bhandari, Robinson, and Brower Joint Dissenting Opinion).
113 Delimitation of the Continental Shelf, supra note 1, para. 83.
115 Territorial and Maritime Dispute, supra note 2, at 671, para. 134.
116 Wittich observes, for example, that issue estoppel could be a possible reading of Bosnian Genocide-Merits, supra note 39. However, even extending the doctrine to determinations taken by the Court motu proprio, its breadth would still be, in all likeliness, excessive: see supra note 60, at 607. Nor did cases like Apotex (supra note 28) produce such a broad preclusive effect.
117 Delimitation of the Continental Shelf, supra note 1, paras. 59–62 (Judges Yusuf, Cançado Trinidade, Xue, Gaja, Bhandari, Robinson, and Brower Joint Dissenting Opinion). The expression was employed in Barcelona Traction, Preliminary Objections, Judgment of 24 July 1964,  ICJ Rep. 6, at 20, 26.
118 J. Salmond, Jurisprudence (1947), 484. It is telling that in Bosnian Genocide-Merits, supra note 39, the Court recited the brocard res judicata pro veritate habetur in its entirety. See also Gal-Or, supra note 108, at 51.
119 Reisman, W.M., ‘The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication’, (1996) 258 RCADI 9, at 221Google Scholar. The point has been raised that this role is assigned to the ICJ by default in the ICSID Convention (Article 64): see Brower, C.N., Ottolenghi, M. and Prows, P., ‘The Saga of CMS: Res Judicata, Precedent and the Legitimacy of ICSID Arbitration’, in Binder, C. et al. (eds.), International Investment Law for the 21st Century (2009), 848Google Scholar.