401
in this regard.
82
It may therefore be useful to refer to the recent case law of the ICJ
on the res judicata effect of its judgments.
There are diverging views and practices about the extent of the res judicata effect
of ICJ’s judgments, especially when it comes to the reasons of a judgment.
83
The
2013 judgment handed down in the Temple of Preah Vihear case (interpretation) is
particularly indicative in this respect, since it clearly illustrates the dichotomy
between two “competing” concepts of res judicata, a narrow and a broader one.
84
In
this case the Court stated that “[i]n accordance with the jurisprudence of the Court,
‘a dispute within the meaning of Article 60 of the Statute must relate to the operative
clause of the judgment in question and cannot concern the reasons for the judgment
except in so far as these are inseparable from the operative clause’ […] or […]
constitute ‘a condition essential to the Court’s decision’”.
85
Apparently, in the
Court’s opinion the binding effect would extend to reasons which are both “inseparable” and “essential” to the operative part of the judgment.
86
The notion of “essential” reasons inevitably resembles that of “necessary” reasons which encompasses
incidental determinations over external issues. This point was actually confirmed in
the joint declaration of Judges Owada, Bennouna and Gaja appended to the judgment at hand which, contrary to the Court’s approach, seems to have endorsed a
“narrow” concept of res judicata. According to the Judges, a binding force can be
attached only to reasons which are “inseparable”, namely “when the operative part
of a judgment is not self-standing and contains an express or implicit reference to
these reasons”.
87
Indeed, in the Judges’ opinion “[a]ssimilating ‘essential’ or fundamental reasons to ‘inseparable’ reasons […] in order to define what the Court has
decided with binding force could imply that States parties to a case find themselves
bound by pronouncements on matters that were not submitted to the Court and that
may even lie beyond the Court’s jurisdiction”.
88
As these passages show, then, the question of the legal effects of incidental determinations relates to the still open debate concerning the possible binding effect of
the reasons of a judgment. But besides these two opposite views, which conceive
incidental determinations as binding, in one case, and as not binding at all, in the
other, there is an intermediate and more nuanced view which finds some support
82 See Virzo (2008), pp. 225–235.
83 Gaja (1975).
84 Kulick (2015).
85 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), 11 November 2013, para.
34.
86 The Court in fact recalled that “a difference of opinion as to whether a particular point has or has
not been decided with binding force also constitutes a case which comes within the terms of Article
60 of the Statute”. Cf. ibidem, para. 34. For a comment see Peat (2013).
87 Joint Declaration of Judges Owada, Bennouna and Gaja, para. 1.
88 Ibidem, para. 2 (emphasis added). Interestingly the Judges added as follows: “[c]ertainly, the
parties to judicial proceedings accept that the Court addresses all the questions that it considers
necessary in order to reach its conclusions. However, they do not accept to be bound by decisions
on issues that they have not submitted to the Court’s jurisdiction”. See ibidem (emphasis added).
Between Consent and Effectiveness: Incidental Determinations and the Expansion…
in this regard.
82
It may therefore be useful to refer to the recent case law of the ICJ
on the res judicata effect of its judgments.
There are diverging views and practices about the extent of the res judicata effect
of ICJ’s judgments, especially when it comes to the reasons of a judgment.
83
The
2013 judgment handed down in the Temple of Preah Vihear case (interpretation) is
particularly indicative in this respect, since it clearly illustrates the dichotomy
between two “competing” concepts of res judicata, a narrow and a broader one.
84
In
this case the Court stated that “[i]n accordance with the jurisprudence of the Court,
‘a dispute within the meaning of Article 60 of the Statute must relate to the operative
clause of the judgment in question and cannot concern the reasons for the judgment
except in so far as these are inseparable from the operative clause’ […] or […]
constitute ‘a condition essential to the Court’s decision’”.
85
Apparently, in the
Court’s opinion the binding effect would extend to reasons which are both “inseparable” and “essential” to the operative part of the judgment.
86
The notion of “essential” reasons inevitably resembles that of “necessary” reasons which encompasses
incidental determinations over external issues. This point was actually confirmed in
the joint declaration of Judges Owada, Bennouna and Gaja appended to the judgment at hand which, contrary to the Court’s approach, seems to have endorsed a
“narrow” concept of res judicata. According to the Judges, a binding force can be
attached only to reasons which are “inseparable”, namely “when the operative part
of a judgment is not self-standing and contains an express or implicit reference to
these reasons”.
87
Indeed, in the Judges’ opinion “[a]ssimilating ‘essential’ or fundamental reasons to ‘inseparable’ reasons […] in order to define what the Court has
decided with binding force could imply that States parties to a case find themselves
bound by pronouncements on matters that were not submitted to the Court and that
may even lie beyond the Court’s jurisdiction”.
88
As these passages show, then, the question of the legal effects of incidental determinations relates to the still open debate concerning the possible binding effect of
the reasons of a judgment. But besides these two opposite views, which conceive
incidental determinations as binding, in one case, and as not binding at all, in the
other, there is an intermediate and more nuanced view which finds some support
82 See Virzo (2008), pp. 225–235.
83 Gaja (1975).
84 Kulick (2015).
85 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), 11 November 2013, para.
34.
86 The Court in fact recalled that “a difference of opinion as to whether a particular point has or has
not been decided with binding force also constitutes a case which comes within the terms of Article
60 of the Statute”. Cf. ibidem, para. 34. For a comment see Peat (2013).
87 Joint Declaration of Judges Owada, Bennouna and Gaja, para. 1.
88 Ibidem, para. 2 (emphasis added). Interestingly the Judges added as follows: “[c]ertainly, the
parties to judicial proceedings accept that the Court addresses all the questions that it considers
necessary in order to reach its conclusions. However, they do not accept to be bound by decisions
on issues that they have not submitted to the Court’s jurisdiction”. See ibidem (emphasis added).
Between Consent and Effectiveness: Incidental Determinations and the Expansion…