Murphy: Counter-Claims at the International Court of Justice

Sean D. Murphy (George Washington Univ. - Law) has posted Counter-Claims at the International Court of Justice (in The Statute of the International Court of Justice: A Commentary, Karin Oellers et al. eds., forthcoming). Here's the abstract:

In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to" the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to be included as part of an existing case is not because it assists in disposition of the principal claim but, rather, to assist in the disposition of two autonomous claims. The I.C.J. Statute does not directly address the issue of the Respondent filing a counter-claim against the Applicant. Art. 80 of the Rules, however, provides that the Court may entertain such a counter-claim in certain circumstances, as a part of the incidental proceedings of an existing case.

Counter-claims featured somewhat in the early life of the Court (in 1950-52), but then disappeared for several decades; they have reemerged in several cases after 1997, such as Italy’s unsuccessful counter-claim filed in 2009 against Germany in Jurisdictional Immunities of the State. Renewed interest in the use of counter-claims may be due to a desire by Respondents to present to the Court a more balanced perspective of the conduct of the two States before it, because inclusion of the counter-claim may force both the Court and the other party to confront certain facts and legal arguments that otherwise would not feature in the case. From the Court’s perspective, allowing a counter-claim in the proper circumstances promotes the value of judicial economy; addressing the claim and counter-claim in a single proceeding may be more efficient than doing so in separate cases. At the same time, there are requirements that must be met before a counter-claim may be entertained, requirements designed to prevent a Respondent from using an unrelated counter-claim simply as a tactic for slowing down the disposition of principal claim and for detracting from a central focus on that claim.