Guest Post: Some Observations on the Request for Interpretation of the ICJ’s Judgment

Dr. Vahid Bazzar

According to Article 60 of the statute of the International Court of Justice, in the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. The request for interpretation of the judgment will cause a proceeding in respect of a previously heard case before the Court, which will have all the powers of an ordinary proceeding, including the nomination of a ad hoc judge and the request for an interim order. However, there are some unique features in the proceeding concerning the request for interpretation of the Court’s judgment, which the main purpose of this post is to examine these features.

In considering the request for interpretation of the judgment, the Court does not go beyond the framework of the judgment, and the interpretation can only determine the meaning or scope of the previous judgment. About a century ago, the Permanent Court of International Justice, in the case concerning the Factory at Chorzow, stated that “the interpretation adds nothing to the decision and can only have binding force within the limits of what was decided in the judgment construed.” The interpretation, therefore, cannot change the judgment, because it ignores the principle of non ultra petita. Even if the Court concludes that it erred in the judgment or ignored some facts, it can only revise the judgment under Article 61 of the Statute. However, when interpreting a judgment, the Court sometimes refers to some of the related obligations of the parties in the framework of the judgment. For example, in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear, the Court referred some of the related obligations of the parties, including cooperation between parties and with the international community in the protection of the temple as a World Heritage Site, the obligation not to take any deliberate measures which might damage directly or indirectly such heritage, and the duty to settle any dispute by peaceful means.

The interpretive proceeding is limited to the operative part of the judgment (dispositif) and the reasons for judgment so far as these are inseparable from the operative clause. This approach has been specified and emphasized by the Court in several cases including the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria.

Judge Owada, Judge Bennouna, and Judge Gaja, in the joint declaration annexed to the Court’s judgment in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear, reject this approach, arguing that it would be unreasonable to consider that what could not be part of the dispositif according to the Court was nevertheless binding because it provided essential reasons for the operative part. However, it should sometimes refer to the text of the judgment for a full understanding of the parts of the dispositif. In the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, for example, the Court was requested to interpret that the operative clause of the judgment which rejected Nigeria’s sixth preliminary objection, while that part had merely answered to the objection without recounting the objection, and, thus, the text had to be referred to in order to fully understanding that clause. Therefore, interpretive consideration is limited to clarifying the meaning or scope of what the Court has decided with binding force and not to obtain an answer to questions not so decided. As stated by the Court in the Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.

The request for interpretation of the judgment does not contradict res judicata, because the purpose of interpretation is not to challenge the findings of the Court in the original judgment, but rather to clarify the meaning or scope of these findings. This interpretive proceeding derives its existence from the principle of finality of the original judgment. In other words, the request for interpretation of the judgment is possible only for those decisions of the court that are final. Therefore, it is possible to request for interpretation of the judgment on the preliminary objections. When interpreting the judgment on the preliminary objections in the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, the Court specifies that Article 60 of the Statute makes no distinction as to the type of judgment.

The means of the interpretation of the judgment is not necessarily the same as the means of the interpretation of the treaty, as set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (1969). The Court affirms this conclusion in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear:”A judgment of the Court cannot be equated to a treaty, an instrument which derives its binding force and content from the consent of the contracting States and the interpretation of which may be affected by the subsequent conduct of those States, as provided by the principle stated in Article 31, paragraph 3(b), of the 1969 Vienna Convention on the Law of Treaties and a judgment of the Court derives its binding force from the statute of the Court.” Another point is that contrary to the revision of the Court’s judgment after the discovery of some facts of such a nature as to be a decisive factor, which is only possible before the lapse of ten years from the date of the judgment, the request for interpretation of the judgment is not subject to any time limitation. The Court, for example, accepted the request for interpretation of its judgment in the Temple of Preah Vihear about half a century after the judgment. Of course, the interpretation cannot be requested for a very short time after the judgment, because the creation of a dispute concerning the meaning or scope of the judgment requires a minimum period of time. In the Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, in which Colombia requests for interpretation of the judgment on the day of its issuance, the Court states that “the very date of the Colombian Government’s request for interpretation shows that dispute between the parties as to the meaning or scope of the judgment could not possibly have arisen in any way whatever.”

The proceedings instituted as a result of the request for interpretation of the judgment in the Court are slightly distinction from the ordinary proceedings in the Court. The first distinction is that the question of the jurisdiction of the Court is not taken into account in the request for interpretation of a judgment, and any party can request for interpretation of the judgment by an application. The jurisdiction of the Court under Article 60 of the Statute does not require any other basis of jurisdiction between the parties. However, there is a need for the Court to examine whether there is a dispute as to the meaning or scope of the judgment between the parties, and a special agreement between parties concerning the request for interpretation per se does not necessarily settle the question of the existence of such dispute. Even if the basis of jurisdiction that existed in the original case can no longer be relied on, the Court can accept the request for interpretation of the judgment. For example, the Optional Protocol to the Vienna Convention on Consular Relations (1963) could no longer be invoked at the time of the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals because of the withdrawal of the United States. Therefore, the request for interpretation of the judgment, especially when the parties can not refer to the Court because of the jurisdictional obstacles, can be a very useful mechanism to refer to the Court again. Despite the ease of access to the Court by requesting for interpretation of the judgment, this power has been used only five times in the 76-year life of the Court. The most important reasons are the limitations of the Court to determine the meaning or scope of judgment in the interpretative proceeding and the enforcement of most of the Court’s judgment by the States.

Another distinction is that in the interpretation of the judgment, the existence of a dispute concerning the meaning or scope of the judgment does not require the same criteria as are required to establish a dispute in ordinary proceedings. Also, there does not need to be a formal dispute concerning the meaning or scope of the judgment, and it will suffice if the parties have different views on the meaning or scope of the judgment. Practically, the request for interpretation of the judgment should be naturally processed more quickly than an ordinary proceeding, Because the implementation of the court’s judgment will depend on the interpretation provided. The Court has considered this necessity in practice. the Court’s proceeding takes seven days in the Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, five months in the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, 16 months in the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals, 17 months in the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf, and 31 months in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear.

The final point I have to make is that, according to Article 100(1) of the Rules of the Court, If the judgment was given by the Court’s Chamber, the request for its interpretation shall be dealt with by that Chamber. There is no doubt that the interpretation of the judgment issued by the Court’s Chamber should proceed in the chamber, and the judges issuing the judgment are in a better position than others to determine the meaning or scope of the judgment. However, the term “that Chamber” in Article 100(1) does not necessarily mean the same composition of the Chamber, and even the same judges issuing the judgment may not be in the Court because of the long time gap between issuing and requesting the interpretation of the judgment.

Given that ambiguity in the judgment or dispute between the parties as to the meaning or scope of the judgment can create obstacles to the implementation of the judgment, the Court’s response to the request for interpretation of the judgment is in line with the effectiveness of its judicial function. In fact, the interpretation of the judgment is one of the judicial functions of the Court, and no reservation can be applied over the jurisdiction of the Court concerning the interpretation of the judgment. Therefore, States may not exclude the compulsory jurisdiction of the Court concerning the interpretation of the judgment in a declaration issued under Article 36(2) of the Statute.

Dr. Vahid Bazzar is a Ph.D. graduate in public international law from Allameh Tabataba’i University School of Law and Political Sciences, Iran. His research interests span international dispute settlement including the International Criminal Court and the International Court of Justice. Dr. Bazzar may be contacted at vahidbazzar@gmail.com.

IBIL thanks Mr. Santosh Anand (PhD Candidate, South Asian University) for reviewing this post.

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