Counter-Claims before the International Court of Justice: Incidental yet Independent

In: Max Planck Yearbook of United Nations Law Online
Vladyslav Lanovoy Assistant Professor, Université Laval, Quebec City, Canada

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This article examines the role and practice of counter-claims at the International Court of Justice. Through its procedural rules (Rules of Court) and case law, the Court has clarified the material requirements that govern the admissibility of counter-claims. Nonetheless, several issues concerning their admissibility remain unsettled, namely: (a) the relationship between the Court’s material requirements for the admissibility of counter-claims; (b) the temporal dimension of the first of those requirements, which concerns the Court’s jurisdiction over the counter-claims in question; and (c) the content of the requirement that there be a direct connection between the counter-claims and the subject-matter of the claims in the principal proceedings. These issues bear upon fundamental tenets of the consensual nature of the Court’s jurisdiction and the need to ensure good administration of justice, which calls inter alia for the respect of the procedural equality of the parties and judicial economy. This article offers critical reflections on the Court’s recent case law in which these issues have been raised. It is argued that the key obstacle to the settlement of these issues lies in the hybrid character of counter-claims, which are neither fully independent (autonomous) nor purely incidental in respect of the claims advanced by the applicant in a case.

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