Leiden Journal of International Law (2015), 28, pp.

7389

C Foundation of the Leiden Journal of International Law 2015 doi:10.1017/S0922156514000545

HAGUE INTERNATIONAL TRIBUNALS

INTERNATIONAL COURT OF JUSTICE
Article 60 ICJ Statute, Interpretation
Proceedings, and the Competing Concepts
of Res Judicata
A N D R E AS KU L I C K

Abstract
The judgment of the International Court of Justice (ICJ) of 11 November 2013, interpreting its
1962 judgment in the case concerning the Temple of Preah Vihear, inspires a reconsideration
of the role of interpretation proceedings pursuant to Article 60 of the Statute of the Court.
In particular, it invites us to take a closer look at the role and scope of the principle of res
judicata in public international law in general and as considered in the case law of the Court in
particular. This contribution reveals the competing concepts of the principle in interpretation
and consecutive original contentious proceedings, and promotes instead a uniform concept
that avoids the conict inherent in current approaches.
Section 1 introduces Article 60 of the ICJ Statute (section 1.1.) and thereinafter views inter-
pretation proceedings before the Court in light of the Courts case law, in particular its 2013
interpretation judgment in the Temple case (section 1.2.). Section 2 constitutes the heart of
the analysis and discusses what will be identied as the competing concepts of res judicata.
Section 2.1. presents the functions, concepts, and case law of res judicata in public international
law in general, whereas section 2.2. focuses specically on the case law of the ICJ and the
Permanent Court of International Justice (PCIJ) in this regard. Finally, section 2.3. concludes
this study by setting out the approach that the author regards as appropriate to reconcile the
competing concepts of res judicata.

Key words
Article 60 and Article 36 of the ICJ Statute; competing concepts; interpretation proceedings; res
judicata; Temple case

1. I NTERPRETATION PROCEEDINGS BEFORE THE ICJ IN LIGHT OF

THE 2013 T EMPLE CASE JUDGMENT AND THE PAST
JURISPRUDENCE OF THE COURT
1.1. A brief introduction to Article 60 of the ICJ Statute
Article 60 of the ICJ Statute reads as follows: The judgment is nal and without
appeal. In the event of dispute as to the meaning or scope of the judgment, the

Dr. iur. Andreas Kulick, LL M (NYU) is currently Assistant Professor at the Eberhard-Karls University Tubingen

[andreas.kulick@uni-tuebingen.de].
74 A N D R E AS KU L I C K

Court shall construe it upon the request of any party. Article 60 thus consists of two
separate but interrelated parts. The rst sentence enshrines the formal aspect of the
res judicata principle1 the Court cannot consider the same matter again in a new
proceeding and the Statute does not provide for any appeal mechanisms.
It is widely accepted that there are three traditional elements for identication
[of res judicata], persona, petitum, causa petendi.2 For a prior decision to qualify as
res judicata in public international law there must be identity of the parties to the
dispute and identity of the question, the latter falling into object or relief (petitum)
and grounds (causa petendi).3 However, if the grounds are identical, international
tribunals have sometimes been generous about the identity of relief requirement
and have denied claimants to seek different relief on the same grounds.4 By contrast,
in the Haya de la Torre case the ICJ denied res judicata effect of the earlier Asylum case
because it considered the question before the Court in Haya de la Torre a new one,
i.e., dealing with the surrender of Mr. Haya de la Torre rather than the question of
whether granting him diplomatic asylum was illegal.5
As one6 instrument to remedy the absence of an appeals mechanism, the second
sentence of Article 60 of the ICJ Statute contains instead the possibility for the
parties to seize the Court to interpret its judgments. Such interpretation proceed-
ings are indeed a seemingly odd companion of original contentious proceedings in
international arbitration and litigation that owes its existence to the principle of
nality of international judgments and awards. In domestic litigation, where there
is usually an appeal mechanism, interpretation proceedings are mostly unknown.
However, on the international level, we nd provisions similar to Article 60 of the
ICJ Statute in sources as diverse as Article 33(3) of the Statute of the International
Tribunal for the Law of the Sea (ITLOS),7 the compromis in the Channel Arbitration
between the United Kingdom and France,8 or Article 50 of the Convention on the

1 Whereas Art. 59 of the ICJ Statute, albeit in a somewhat cryptic manner, contains the substantive aspect of
that principle: The decision of the Court has no binding force except between the parties and in respect of
that particular case.
2 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow),
Judgment No. 11 of 16 December 1927, Dissenting
Opinion by M. Anzelotti, PCIJ Rep., Series A No. 13, at 23.
3 Ibid.; see also W. S. Dodge, Res Iudicata, in R. Wolfrum, Encyclopedia of International Law (2012), Vol. VIII, at
944, para. 4.
4 See, for instance, Delgado case (Spanish-United States Claims Commission) (1881), in J. B. Moore (ed.),
International Arbitrations to which the United States Has Been a Party (1898), 2196 at 2199: Even if the claimant
did not at the time of the former case ask indemnity of the commission for the value of the lands, the claimant
had the same power to do so as other claimants in other cases where it has been done, and he can not have
relief by a new claim before a new umpire. Machado case (Spanish-United States Claims Commission) (1881),
in J. B. Moore (ed.), International Arbitrations to which the United States Has Been a Party (1898), 2193 at 2194.
5 See Haya de la Torre (Colombia v. Peru), Merits, Judgment of 13 June 1951, [1951] ICJ Rep. 71, at 80; see also
Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment of
27 November 1950, [1950] ICJ Rep. 395.
6 Not to forget the revision of judgments pursuant to Art. 61 of the Statute, which is possible if the ICJ is
presented with new facts that were unknown to both the Court and the party claiming revision when the
original judgment was delivered, provided that such ignorance was not due to negligence.
7 Ann. VI to the United Nations Convention on the Law of the Sea (UNCLOS).
8 Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern
Ireland, and the French Republic (United Kingdom v. France), Decision of 14 March 1978 (Interpretation of the
Decision of 30 June 1977), UNRIAA, Vol. XVII, 271 et seq. See also recently Indus Waters Kishenganga Arbitration
(Pakistan v. India), PCA, Dec. on Indias Request for Clarication or Interpretation of 20 December 2013.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 75

Settlement of Investment Disputes between States and Nationals of Other States

(ICSID Convention). All these provisions have in common the fact that the court or
tribunals judgment or award is intended to be the last word on the dispute.
While an interpretation must not constitute an appeal, it nonetheless lls the
void that the absence of an appeal mechanism creates: A decision, as well crafted as
it may be, might leave the parties with open questions as to its meaning and scope,
especially over the course of time.9 Hence the need to seize again the same body10
that delivered the decision to explain how the parties should understand the nal
decision with regard to issues that remained opaque. However, here, the relationship
between interpretation and res judicata i.e., in the context of the ICJ Statute, the
relationship between the rst and the second sentences of Article 60 comes into
play. What the Court has decided with binding force is the beginning and end of
any interpretation proceeding. As Andreas Zimmermann puts it, interpretation is a
procedure of clarication, whose aim is not the questioning of the ndings of the
original judgment, but rather instead the conrmation of its res judicata effect.11
An interpretation proceeding thus may not somehow mutate into a disguised
appeal. Keeping this premise in mind is particularly important considering that
Article 60 does not contain any time limits for submitting a request for interpret-
ation.12 Such a request may even be introduced if the parties are no longer subject
to the Courts jurisdiction.13 As the Permanent Court of International Justice (PCIJ)
had already found regarding proceedings under the identically-worded Article 60
of the PCIJ Statute, an interpretation decision may only clarify an earlier judgment
within the connes of what the Court has already decided with res judicata effect:
The interpretation adds nothing to the decision, which has acquired the force of res
judicata, and can only have binding force within the limits of what was decided in
the judgment construed.14
The second sentence of Article 60 of the ICJ Statute sets forth two requirements.
There needs to be (i) a dispute as to (ii) the meaning and scope of an earlier
judgment of the Court. The jurisprudence of the Court usually identies these
as requirements to the admissibility of the claim, e.g., in the Asylum, Continental

9 See Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, dissenting opinion of Judge Donoghue
[2011] ICJ Rep. (II) 613, at 615, para. 7.
10 If this is possible, which might not always be the case regarding (ad hoc) arbitration, see, for instance, Art.
50(2) of the ICSID Convention.
11 A. Zimmermann, Interpretation of Judgments of the International Court of Justice under Art. 60 of the
Statute of the ICJ, in F. Zehetner (ed.), Festschrift fur
Hans-Ernst Folz (2003), 407 at 408.
12 As opposed to some interpretation clauses in ad hoc state-to-state arbitration, see Case Concerning the Delim-
itation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French
Republic (United Kingdom v. France), Decision of 14 March 1978 (Interpretation of the Decision of 30 June
1977), UNRIA. Vol. XVII, 271 et seq.
13 See [2011] ICJ Rep. (II) 613, at 615, para. 7; Case concerning Avena and Other Mexican Nationals (Mexico v. United
States of America), Provisional Measures, Order of 16 July 2008, [2008] ICJ Rep. 311, at 323, para. 44. See also
A. Zimmerman and T. Thienel, Art. 60, Mn. 40, in A. Zimmermann, C. Tomuschat, K. Oellers-Frahm (eds.),
The Statute of the International Court of Justice A Commentary (2006); H. Thirlway, The Law and Procedure of the
International Court of Justice Fifty Years of Jurisprudence (2013), Vol. II, at 1859.
14 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11 of 16 December 1927, PCIJ Rep.,
Series A No. 13, at 21.
76 A N D R E AS KU L I C K

Shelf, Land and Maritime Boundary, and Avena cases,15 as did the PCIJ in the Chorzow
16 17
Factory case. In the recent Temple case interpretation judgment, the Court appears
to have deviated from such a practice, discussing these requirements as questions of
the jurisdiction of the Court under Article 60 of the Statute,18 without providing any
support for this change in view. In my opinion, whether there is a dispute regarding
the meaning and scope of an earlier judgment of the Court is not a question of
the correct forum. Rather, the question before the Court is whether, being before the
competent forum, the requirements are fullled to proceed to the merits, i.e., one of
admissibility rather than of jurisdiction.19
While the meaning and scope leads us back to the connes of what has been
decided with binding force,20 a dispute requires a divergence of views21 on what
the Court has decided with res judicata effect in its original judgment, i.e., on denite
points.22 As the Court has emphasized in the Asylum case, one cannot treat as a
dispute . . . the mere fact that one Party nds the judgment obscure when the other
considers it to be perfectly clear.23 However, the dispute does not necessarily need
to have manifested itself in express form or in a formal way, e.g. by exchange of
diplomatic notes.24 [I]t should be sufcient if the two Governments have in fact
shown themselves as holding opposite views in regard to the meaning or scope of a
judgment of the Court.25

1.2. The 2013 Temple case: Facts,26 the original judgment of 1962, and its
interpretation by the Court in its judgment of 11 November 2013
In 1904, Siam (now Thailand) and French Indochina (now Cambodia) concluded a
boundary treaty that entrusted a Mixed Commission with the task of surveying the
border area and creating maps on the basis of which the two parties to the treaty
would decide on the eventual boundary. The Mixed Commission created eleven

15 [1950] ICJ Rep. 395, at 402; Application for Revision and Interpretation of the Judgment of 24 February 1982 in
the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgments of 10 December 1985,
[1985] ICJ Rep. 192, at 223, para. 56; 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), Preliminary Objections,
Judgment of 25 March 1999, [1999 (I)] 31, at 35, para. 12; Request for Interpretation of the Judgment of 31 March
2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of
19 January 2009, [2009] ICJ Rep. 3, at 10, para. 21 and 17, para. 43.
16 PCIJ Rep., Series A, No. 13, at 10; Interpretation of Paragraph 4 of the Annex Following Article 79 of the Treaty of
Neuilly, Judgment No. 3 of 26 March 1925, PCIJ Rep., Series A No. 4 remained opaque in this regard.
17 See section 1.2. below.
18 Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear
(Cambodia v. Thailand), Judgment of 11 November 2013, para. 31 (not yet published in the ICJ Rep, available at
<www.icj-cij.org/docket/les/151/17704.pdf?>, visited on 16 June 2014. Hereinafter: (Cambodia v. Thailand),
Judgment of 11 November 2013).
19 See also A. Zimmermann and T. Thienel, Art. 60, Mn. 4652.
20 See [1950] ICJ Rep. 395, at 402 and 2. below.
21 [1950] ICJ Rep. 395, at 403; see also PCIJ Rep., Series A No. 13, at 11 (difference of views).
22 [1950] ICJ Rep. 395, at 403. See also Art. 98(2) of the Rules of Court: [T]he precise point or points in dispute as
to the meaning or scope of the judgment shall be indicated.
23 [1950] ICJ Rep. 395, at 403.
24 PCIJ Rep., Series A No. 13, at 1011; see also [1985] ICJ Rep. 192, at 218, para. 46.
25 See (Cambodia v. Thailand), Judgment of 11 November 2013, para. 33; [2008] ICJ Rep. 311, at 3256, para. 54.
26 For a detailed description of the facts see Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 6, at 1532 and (Cambodia v. Thailand), Judgment of
11 November 2013, paras. 1429.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 77

maps, including the so-called Annex I map, which included the area surrounding
the Temple of Preah Vihear, the bone of contention, and which show[ed] the whole
Preah Vihear promontory, with the Temple area, as being on the Cambodian side of
the border.27
The Siamese government received the maps, including the Annex I map, in 1908.
While it did not give a sign of formal acceptance, it requested copies of these maps
from the Mixed Commission and, over the course of almost fty years, did not raise
any concerns regarding the delimitations made in the maps with the Commission
or the French authorities. By contrast, the French representative received an ofcial
Thai delegation on the Temple premises with the French ag ying on the grounds
and without the Thai ofcials protesting. In the words of the Court in its original
judgment of 1962: A clearer afrmation of title on the French Indo-Chinese side [than
hoisting the ag on the premises] can scarcely be imagined. It demanded a reaction.
Thailand did nothing.28 Accordingly, the Court held that Cambodia, which had
gained independence in 1953, exercised territorial sovereignty over the Temple and
that Thailand was under an obligation to withdraw any military or police forces,
or other guards or keepers, stationed by her at the Temple, or in its vicinity on
Cambodian territory.29
The conict over the Temple arose anew in 2007. Cambodia applied for inclusion
of the Temple in the UNESCO world heritage list and submitted a map together with
the application that indicated the Temple and the promontory of Preah Vihear, as well
as the hill of Phnom Trap, as Cambodian territory. Thailand protested immediately
against the delimitation in the map and sent its troops to occupy the Temples
surroundings.30 In view of several armed clashes between Thai and Cambodian
troops in the Temple area, both the UN Secretary-General and the UN Security
Council called upon Thailand and Cambodia to commit to a permanent ceasere,
which, however, did not lead anywhere.31 Eventually, on 28 April 2011, Cambodia
seized the Court to interpret its 1962 judgment and the Court delivered an order on
provisional measures in July 2011 and its judgment in November 2013.
The elements of the 11 November 2013 judgment most enlightening for the pur-
pose of the present study pertain largely to the discussion on the merits. As regards
issues of jurisdiction and admissibility, sufce it here to mention the Courts ana-
lysis with regard to whether there was a dispute between Cambodia and Thailand
concerning the interpretation of the original judgment of 1962. Citing its earlier
case law, the Court,32 stated that:
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 clause33

27 Ibid., at 21.
28 Ibid., at 30.
29 Ibid., at 3637.
30 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cancado Trindade, para.
19 (not yet published in ICJ Rep.).
31 Ibid., paras. 2125.
32 See also [2011] ICJ Rep. (II) 537 at 542, para. 23; [2008] ICJ Rep. 311, at 323, para. 47.
33 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 34 [emphasis added].
78 A N D R E AS KU L I C K

while at the same time referring to essential reasons in the Courts decision as to
what forms part of the dispute in question.34 I will revisit this matter, which pertains
to how much of the reasoning of the original judgment should be considered res
judicata and thereby subject to interpretation in Article 60 proceedings and which
is at the very centre of this contribution, in section 2.2. below.
The Court, with regard to the interpretation of the 1962 judgment, underlined
again the connes set by the res judicata of the original judgment. However, it
nevertheless acknowledged a certain degree of exibility in its approach as to the
interpretation of the dispute among the parties. As the PCIJ had already determined
in the Chorzow Factory case:
[T]he Court does not consider itself as bound simply to reply yes or no to the
propositions formulated in the submissions of [the Applicant]. It adopts this attitude
because, for the purpose of the interpretation of a judgment, it cannot be bound by
formulae chosen by the Parties concerned, but must be able to take an unhampered
decision.35

Due to such exibility, the Court may, in its exercise to determine meaning and
scope of the dispositif of the original judgment, have regard to the reasoning of
that Judgment to the extent that it sheds light on the proper interpretation of
the operative clause.36 While this may sound like a broader standard than focusing
merely on a reasoning inseparable from the dispositif, the subsequent interpretation,
as demonstrated below, nonetheless remained within the connes of the narrower
standard. Furthermore, the Court may consult the parties pleadings and the record
of the oral proceedings in the original judgment.37
It went on to interpret the second paragraph of the operative part which was at
the centre of the dispute between the Parties and which read as follows:
The Court [nds] that Thailand is under an obligation to withdraw any military or
police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity
on Cambodian territory.38

What did the Court hence mean by vicinity of the Temple? It commenced its in-
terpretation by examining the evidence before it in the original judgment regarding
the location at which the Thai personnel mentioned in the dispositif were stationed.
According to Thailands witness and expert in the original proceedings, during his
visit to the Temple in July 1961 in the course of preparing his report, the only people
he had seen at the Preah Vihear promontory were a detachment of Thai frontier po-
lice and one Temple guard.39 The Thai frontier police had been stationed north of a
line that the Thai Council of Ministers drew by resolution immediately following the
1962 judgment and thus outside what Thailand, in the interpretation proceedings,

34 Ibid.
35 PCIJ Rep., Series A No. 13, at 1516. Cited in (Cambodia v. Thailand), Judgment of 11 November 2013, para. 67.
36 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 68. See also ibid., Joint Declaration of Judges
Owada, Bennoua, and Gaja, para. 4.
37 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 69.
38 [1962] ICJ Rep. 6, at 3637 [emphasis added].
39 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 86.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 79

considered to be the vicinity [of the Temple] on Cambodia territory.40 The Court
found that this fact resounded in the second paragraph of the operative clause:
When the Court required Thailand to withdraw military or police forces, guards or
keepers which it had stationed in the Temple, or in the vicinity of the Temple on
Cambodian territory, it must have intended that obligation to apply to the police
detachment referred to by [Thailands witness and expert], since, except for the solitary
Temple guard . . . , there was no evidence of the presence of any other Thai personnel
anywhere near the Temple.41

Thus, to the Court, the vicinity of the Temple stretched at least to where the police
detachment was stationed and went beyond the line viewed by Thailand to represent
the territorial scope of the dispositif.
The geographic location and features of the Temple and its surroundings con-
rmed such reading:
[T]he Temple is located on an easily identiable geographical feature. This feature is a
promontory. . . . A natural understanding of the concept of the vicinity of the Temple
would extend to the entirety of the Preah Vihear promontory.42

Such geographic location and features of the area around the Temple, however, led
the Court to exclude from the Temples vicinity the hill of Phnom Trap.43 Phom
Trap and the promontory of Preah Vihear are distinct geographical features which
are clearly shown as separate on the maps used in the 1962 proceedings.44 This again
was supported by the evidence before the Court in the original proceedings.45 This
reading of vicinity, which included the promontory of Preah Vihear but excluded
the hill of Phnom Trap, in the eyes of the Court was a general and coherent one
employed throughout the whole judgment of 1962 and thus underlying the other
paragraphs of the operative parts of the original judgment.46

2. T HE COMPETING CONCEPTS OF RES JUDICATA IN

INTERNATIONAL DISPUTES
2.1. Res judicata in public international law: Functions, concepts, case law
The principle of res judicata aims at nalization. It brings to an end, and thereby serves
to settle an international dispute. The authority of international adjudication, and
thus eventually of international law, derives from, or at least depends on, the nality
of an international award or judgment. If the same dispute or the same or similar issue
can be re-litigated before the same court or tribunal, or, which has the same effect, if
the scope and limits of an interpretation of such award are stretched beyond what
the court or tribunal had decided in the original judgment with binding force, the

40 Ibid., para. 87.

41 Ibid., para. 88.
42 Ibid., para. 89 [emphasis added].
43 Ibid., paras. 9299.
44 Ibid., para. 93.
45 Ibid., paras. 9496.
46 Ibid., para. 1003.
80 A N D R E AS KU L I C K

parties will lose faith in the viability of international adjudication as the appropriate
means to settle international disputes.47
Therefore, avoiding re-litigation is not an end in itself. Its purpose is legal secur-
ity48 (Rechtsfrieden) and, eventually, the maintenance of international peace. As we
are constantly reminded by numerous international conicts that do not end up
before an international court or tribunal, international legal dispute settlement by
international adjudication is only one among several means of international dispute
settlement that a state may resort to.49 Caldeira Brant underlines such a link between
the principle of res judicata and the maintenance of international peace:
[L]a Cour et les tribunaux internationaux placent donc demblee,
en droit international,
le champ daction de la res judicata dans lobjectif de maintien de la paix et dans la
solution pacique de conits internationaux.50

In respect of the International Court of Justice, Article 2(3) read together with Article
92 of the UN Charter and Article 1 of the Statute of the Court emphasizes such a
relationship between the role and function of the Court in the international arena
and the peaceful settlement of international disputes. As Shabtai Rosenne puts it,
the Court has a task that is directly related to the pacic settlement of international
disputes and therefore to the maintenance of international peace.51 The Temple case
is a perfect example of the potentially devastating consequences a decision by an
international court may have if it remains unclear what has actually been settled
with binding force, and of how close the connection between res judicata and the
maintenance of international peace in fact is.52
Let us move to the crucial question: what parts of an award [or judgment] have
the binding force of res judicata53 ? The scope of res judicata denes which parts of a
judgment may not be re-litigated as well as which parts are subject to interpretation
by the body that had delivered the original judgment or award. The central issue,
that also arose in the Temple case, is, as David Bowett put it, whether the dispositif
. . . alone is binding, or whether the essential reasoning on which those ndings rest
is also res judicata.54

47 See D. Bowett, Res Judicata and the Limits of Rectication of Decisions by International Tribunals, (1996) 8
African Journal of International & Comparative Law 577.
48 See, for instance, A. Reinisch, The Use and Limits of Res Judicata and Lis Pendens As Procedural Tools to Avoid
Conicting Dispute Settlement Outcomes, (2004) 3 The Law & Practice of International Courts and Tribunals
37, at 43; L. E. Salles, Forum Shopping in International Adjudication (2014), at 268.
49 The recent refusal of China to participate in international arbitration under Ann. VII of UNCLOS, or even
preliminary measures before ITLOS, demonstrates that even nowadays the authority of international ad-
judication is not considered as a given, see The Republic of the Philippines v. The Peoples Republic of China,
Permanent Court of Arbitration, Press Release of 27 August 2013, citing The Peoples Republic of Chinas
unpublished Note Verbale of 1 August 2013.
50 L. N. Caldeira Brant, LAutorit e de la Chose Jug ee en Droit International Public (2003), at 291: The Court and the
international tribunals immediately place, in international law, the scope of action of res judicata within the
aim of maintaining peace and within the peaceful resolution of international conicts.
51 S. Rosenne, The Law and Practice of the International Court, 19202005 (2006), Vol. I, at 3.
52 See, for instance, (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cancado
Trindade, para. 40 (not yet published in ICJ Rep). See also section 1.2. above.
53 D. Bowett, (1996) 8 African Journal of International & Comparative Law 577.
54 Ibid.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 81

In the Temple interpretation judgment of 11 November 2013 the matter resounded

in the joint declaration of Judges Owada, Bennoua, and Gaja, and the separate opinion
of Judge Cancado Trindade. Judges Owada, Bennoua, and Gaja observed55 that the
Court, when drawing the lines of what it considered res judicata for the purposes of
interpretation pursuant to Article 60 of the ICJ Statute, referred indiscriminately56
to earlier ICJ case law which predominantly considered only those parts of the
motifs subject to res judicata that are inseparable from the dispositif,57 as well as
to the PCIJ in the Chorzow Factory interpretation judgment, which included all
essential reasons within the scope of res judicata.58 However, inseparable reasons
are not the same as essential reasons.59 Inseparable are those reasons without
which the operative part cannot stand,60 while essential are reasons on which the
substance of the legal reasoning is based that, in turn, crystallizes in the operative
part. Thus, inseparable is mostly a formalistic, narrow criterion, whereas essential
is normative and potentially much broader.
In contrast to Judges Owada, Bennoua, and Gaja, Judge Cancado Trindade, in his
separate opinion to the interpretation judgment in the Temple case, thought that
both the dispositif and the motifs in their totality should form part of the res judicata
of a prior judgment because, [i]n effect, to my mind, motifs and dispositif form an
organic, inseparable whole.61
Such difference in approach as to the scope of res judicata takes us back to the
origins of the doctrine in domestic law.62 As the Interim Report Res Judicata and
Arbitration of the International Law Association (ILA) at the 2004 Berlin Conference
eshed out so pertinently, the narrower and wider understandings of res judicata have
their roots in the civil law and common law traditions respectively.63
Common law jurisdictions, where res judicata are treated as a type of the doctrine
of estoppel,64 prefer the broader approach. In English common law, the relevant
issue, regardless whether of fact or law, must constitute an essential element in
the cause of action or defence. . . . [E]lements of the reasoning and not just the
formal order may give rise to res judicata.65 All ratio decidendi is thus subject to issue

55 (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua, and
Gaja, para. 1.
56 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 34.
57 [1999 (I)] 31, at 35, para. 10; [2008] ICJ Rep. 311, at 323, para. 47; see also [2011 (II)] ICJ Rep. 537, at 542, para. 23.
58 PCIJ Rep., Series A No. 13, at 21.
59 (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua and
Gaja, para. 2.
60 Ibid., para 1: Reasons are inseparable when the operative part of the Judgment is not self-standing and
contains an express or implicit reference to these reasons.
61 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cancado Trindade, para.
55.
62 The following is particularly pertinent if, as I do, one views res judicata as a general principle of law. For the
scope and denition of the term general principles of law see M. N. Shaw, International Law (2008), at 98105.
63 Res Judicata and Arbitration, International Law Association, Interim Report of the Committee on
International Commercial Arbitration, Berlin Conference, 2004 (ILA Interim Report 2004), at 618. For
a comparative perspective see also Y. Sinai, Reconsidering Res Judicata: A Comparative Perspective, (2010
11) 21 Duke Journal of International Law 353.
64 The English common law tradition treats res judicata as a matter of issue estoppel, so does the United States
common law doctrine, which merely uses a different name (issue preclusion), as the ILA Interim Report
observes, ibid., at 78 and 1112.
65 Ibid., at 7.
82 A N D R E AS KU L I C K

estoppel, merely the obiter dicta do not form part of it.66 Similarly, in the United
States, the issue at hand must be essential to the judgment. This means that the
appropriate inquiry is whether the issue was actually recognized by the parties as
important and by the court as necessary to the rst judgment.67 Thus, while there
may be variations among the different common law jurisdictions, the criterion is
clearly normative and requires an assessment of what are the main grounds in the
parties submissions and what are the rational bases that led the court to arrive at its
decision.
By contrast, the civil law approach, at least from the outset, is a rather formalistic
one that focuses on the operative part of a judgment for determining the scope of
res judicata.68 However, in practice, the Romanic legal traditions appear to take a
more generous approach, looking also at the necessary underlying motivation of a
judgment, whereas the Germanic traditions, notably in Germany and Switzerland,
cling rather strictly to the principle that the dispositif circumscribes the scope of
res judicata and only allows deviations where the exact meaning and extent of the
operative part is not self-explanatory.69 Hence, while the practice is not entirely
consistent among civil law countries, the approach of at least the Germanic traditions
resembles the focus on inseparable reasons evident in several ICJ judgments.
The approach taken in twentieth century state-to-state arbitration appears to be
more inuenced by the common law approach. In the Pious Fund arbitration between
the United States and Mexico, the very rst dispute before the Permanent Court of
Arbitration, decided in 1902, the tribunal held that the decision by the umpire of the
US-Mexican Claims Commission constituted res judicata between the United States
and Mexico. The tribunal adopted a very broad view as to the scope of res judicata:
[A]ll the parts of the judgment or the decree concerning the points debated in the litigation
enlighten and mutually supplement each other, and that they all serve to render precise
the meaning and the bearing of the dispositif (decisory part of the judgment) and to determine
the points upon which there is res judicata.70

Here, clearly the English common law tradition resounds. [A]ll the parts of the
judgment, i.e., the entire ratio decidendi forms part of the res judicata.
In the Channel arbitration between the United Kingdom and France over the
delimitation of the continental shelf, the Court of Arbitration, seized by the United
Kingdom to interpret its earlier decision of 30 June 1977, held in its decision of
14 March 1978 that:
In the opinion of the Court, it is . . . clear that, having regard to the close links that exist
between the reasoning of a decision and the provisions of its dispositif, recourse may in principle
be had to the reasoning in order to elucidate the meaning and scope of the dispositif.
. . . [U]nder certain conditions and within certain limits, the reasoning in a decision may

66 Ibid., at 7, citing Mills v. Cooper [1967] 2 QB 49 at 4689, per Diplock LJ; approved by the House of Lords in
Arnold v. National Westminster plc [1991] 2 AC 93.
67 ILA Interim Report 2004, at 1112.
68 Ibid., at 14.
69 Ibid., at 1415.
70 Pious Fund of the Californias (United States v. Mexico), Permanent Court of Arbitration, Decision of 22 May 1902,
(1908) 2 AJIL 893, at 900 [emphases added].
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 83

properly be invoked as a ground for requesting an interpretation of provisions of its dispositif.

. . . But the subject of a request for interpretation must genuinely be directed to the question of
what it is that has been settled with binding force in the decision, that is in the dispositif . . . ;
the reasoning cannot therefore be invoked for the purpose of obtaining a ruling on a point not so
settled in the dispositif.71
According to this, the reasoning may be taken into account but only if it is linked
to the dispositif. Therefore, this approach may be placed somewhere in the middle
between the broad approach taken in Pious Fund and the narrow Germanic concept.72
However, a point not so settled in the dispositif, by way of logic, must mean something
different and potentially broader than a reasoning inseparable from the dispositif.
In addition, the Court of Arbitration eventually arrived at a result that aligned with
the broad scope of res judicata asserted by the United Kingdom, since the dispositif
of the decision of 30 June 1977 consisted essentially of only a list of coordinates
delimiting the continental shelf between the two parties and thus was not self-
standing.73

2.2. In particular: The ICJs case law with regard to res judicata
Outside of Article 60 proceedings, the case law of the Court on res judicata falls
into two broad categories. In the rst category are judgments and advisory opinions
dealing with the res judicata effect of arbitral awards and similar decisions, whereas
the second category comprises contentious cases (original judgments), where the
Court had to judge on the res judicata effect of its own prior decisions.
As to the rst category, the PCIJ adopted a narrow view of the scope of res judicata in
its Advisory Opinion in Polish Postal Service in Danzig. The issue before the Court was
whether the decision of the High Commissioner of the League of Nations, entrusted
with deciding disputes between Poland and the Free City of Danzig under the Treaty
of Versailles, had decided with binding force that the use of the Polish Postal service
in Danzig was conned to Polish authorities and ofces.74 It was undisputed among
the parties that the operative part of the High Commissioners decision did not
contain such a nding. However, such a nding might arguably have been deduced
from the motifs of the decision.75 The Court, taking note of the broad understanding
endorsed in the Pious Fund arbitration, nonetheless determined that:
It is perfectly true that all the parts of a judgment concerning the points in dispute
explain and complete each other and are to be taken into account in order to determine
the precise meaning and scope of the operative portion. . . . [I]t by no means follows that
every reason given in a decision constitutes a decision. . . . Now, although it is not quite clear

71 Channel Arbitration (United Kingdom v. France), Decision of 14 March 1978 on Delimitation of the Continental
Shelf (Interpretation of the Decision of 30 June 1977), Court of Arbitration, 54 ILR 139, at 170, para. 28
[emphases added].
72 Note that D. Bowett, (1996) 8 African Journal of International & Comparative Law 578, arrives at a somewhat
different conclusion, stating that the decision closely follows the view of the [Pious Fund Arbitration].
73 See Channel Arbitration (United Kingdom v. France), Decision of 14 March 1978 on Delimitation of the Contin-
ental Shelf (Interpretation of the Decision of 30 June 1977), Court of Arbitration, 54 ILR 6, at 1267, para. 255;
see also D. Bowett, (1996) 8 African Journal of International & Comparative Law 578.
74 Polish Postal Service in Danzig, Advisory Opinion No. 11 of 16 May, 1925, PCIJ Rep., Series B, at 2122, 29
[emphases added].
75 Ibid., at 2829.
84 A N D R E AS KU L I C K

why the High Commissioner, in paragraph 6 of his decision, expressed his opinion on
the scope of the utilization of the Polish postal service, there can be no doubt that the said
opinion is irrelevant to the point actually decided by him and therefore has no binding force.76

In the King of Spain and 1989 Arbitral Award cases, the Court noted that it could not
re-examine the dispute before the arbitral tribunal, without pronouncing on the
scope of res judicata.77
Turning to the second and for the present purposes even more interesting
category of res judicata effect of prior judgments of the Court, in the aforementioned
Haya de la Torre case of 13 June 1951 the ICJ held that here it was called upon to
decide on the surrender of Mr. Haya de la Torre rather than on whether granting him
diplomatic asylum was illegal, which was the matter before the Court in the Asylum
case of 20 November 1950.78 Denying res judicata effect of the Asylum case was only
the logical consequence of the Courts rejection, in the interpretation decision of
27 November 1950, of Columbias application that the Court should interpret the
Asylum judgment of 20 November 1950 as having decided also on Mr. Haya de la
Torres surrender.79
Very interesting is the comparison with the more recent judgment in the Genocide
case of 26 February 2007.80 By ten votes to ve, the Court found that it had already
decided in its 1996 judgment on preliminary objections,81 by necessary implication,
that Serbia enjoyed standing before the Court. The issue of jurisdiction ratione
personae under the ICJ Statute had only been addressed in the merits phase because
Serbia had in the meantime dropped its claim asserted at many occasions, however,
at least not expressly before the Court in the preliminary objections phase that
it continued Yugoslavias UN Membership and thereby the status as ipso facto party
to the ICJ Statute.82 Although the issue of party status to the Statute was not at all
before the Court in the preliminary objections phase instead, the claims submitted
merely pertained to the validity of jurisdictional title arising from the Genocide
Convention83 the majority of the judges held in 2007 that its 1996 judgment
constituted res judicata also as to Serbias standing under the Statute:

76 Ibid., 30.
77 See Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment of
18 November 1960, [1960] ICJ Rep. 192, at 214; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal),
Judgment of 12 November 1991, [1991] ICJ Rep. 53, at 62, paras. 2425. However, Yuval Shany appears to
regard the 1989 Arbitral Award case as in fact, at least partly, re-examining the 1989 arbitral award, see Y.
Shany, The Competing Jurisdiction of International Courts and Tribunals (2003), at 250.
78 See [1951] ICJ Rep. 71, at 80.
79 [1950] ICJ Rep. 395, at 403: The gaps which the Colombian Government claims to have discovered in
the Courts Judgment in reality are new questions, which cannot be decided by means of interpretation.
Interpretation can in no way go beyond the limits of the Judgment, xed in advance by the Parties themselves
in their submissions.
80 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, [2007] ICJ Rep. 43.
81 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep. 595.
82 See Art. 93(1) of the UN Charter.
83 As notes S. Wittich, Permissible Derogation from Mandatory Rules? The Problem of Party Status in the
Genocide Case, (2007) 18 EJIL 591, at 605.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 85

In the view of the Court, the express nding in the 1996 Judgment that the Court had
jurisdiction in the case ratione materiae . . . in its context, is a nding which is only
consistent, in law and logic, with the proposition that, in relation to both Parties, it had
jurisdiction ratione personae in its comprehensive sense, that is to say, that the status of
each of them was such as to comply with the provisions of the Statute concerning the
capacity of States to be parties before the Court.84

The Court went on to conclude that:

[T]he 1996 Judgment contained a nding, whether it be regarded as one of jurisdiction
ratione personae, or as one anterior to questions of jurisdiction, which was necessary
as a matter of logical construction, and related to the question of the FRYs capacity
to appear before the Court under the Statute. The force of res judicata attaching to that
judgment thus extends to that particular nding.85

As noted by several commentators,86 the Court thus employed a very broad under-
standing of res judicata in the 2007 Genocide judgment. The Court in effect argued that
because Serbia did not raise issues of standing in the preliminary objections phase
Serbia was precluded from having the Court revisit the matter of jurisdiction, albeit
the 1996 judgment only found that it had jurisdiction to adjudication upon the
dispute on the basis of Article IX of the [Genocide Convention]87 . As Stephan Wit-
tich observed, the Courts approach resembles the doctrine of issue estoppel under
English law.88 The necessary implication and logical construction the Court refers
to pertains to the motifs rather than merely the dispositif, as evinces the reference to
the reasoning of the 1996 judgment in paragraph 132 of the 2007 judgment.89
A tendency for a broader understanding of res judicata may also be found in the
Courts judgment of 4 May 2011 on the application of Honduras to intervene in
the Territorial and Maritime Dispute (Nicaragua v. Colombia).90 In this case, Honduras
sought to intervene according to Article 62 of the ICJ Statute in a maritime dispute
between Nicaragua and Colombia with regard to matters of maritime delimitation
that formed the subject matter of a dispute between Honduras and Nicaragua and that
had resulted in a judgment by the Court of 8 October 2007,91 which had delimited the
maritime frontier between the two latter states with regard to that dispute. The Court,
in the 2011 judgment, declined Honduras application to intervene. It stated that the
2007 judgment constituted res judicata and that Honduras arguments raised in its

84 [2007] ICJ Rep. 43, at 99, para. 133.

85 Ibid., 100, para. 136 [emphasis added].
86 See, for instance, M. Ottolenghi and P. Prows, Res Judicata and the ICJs Genocide Case: Implications for other
Courts and Tribunals?, (2009) 21 Pace International Law Review 37, at 50; Wittich, supra note 83, at 607; see
also L. E. Salles, Forum Shopping in International Adjudication (2014), 271.
87 [1996] ICJ Rep. 595, at 623, para. 47(2)(a).
88 See Wittich supra, note 83 at 607; see also ILA Interim Report 2004, at 78.
89 See [2007] ICJ Rep. 43, at 99, para. 132, referring primarily to Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections,
Judgment of 11 July 1996, [1996] ICJ Rep. 595, at 610, para. 17, where the Court observed that the Federal
Republic of Yugoslavias assertion to continue the Socialist Federal Republic of Yugoslavias party status to
international treaties included its party status to the Genocide Convention.
90 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene,
Judgment of 4 May 2011, [2011] ICJ Rep. 420.
91 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment of 8 October 2007, [2007] ICJ Rep. 659.
86 A N D R E AS KU L I C K

application to intervene would lead it to reconsider the Courts reasoning provided

in the 2007 judgment, which was an essential step leading to the dispositive of that
Judgment.92

2.3. Conclusion: Broad or narrow concept?

A wide scope of res judicata, as employed in the Genocide or Territorial and Maritime
Dispute cases as well as in the Pious Fund arbitration,93 appears at odds with the ICJs
reasoning in, e.g., Haya de la Torre. If, as the Court held in Genocide, the question
of standing under the ICJ Statute is necessarily implied in a pronouncement on
the jurisdiction ratione materiae based on the Genocide Convention, why would
the obligation to surrender Mr. Haya de la Torre not be necessarily implied in a
nding that granting him asylum was illegal? In both instances, the explicit nding
is logically connected to the (allegedly) implicit one: the Court moving to the merits
phase may be read as assuming that there is jurisdiction on all counts, including
ratione personae; nding that Mr. Haya de la Torre must be surrendered may be read
as assuming that he cannot enjoy asylum in Peru and that granting him such asylum
was illegal. The difference between the two matters may be that the question of its
jurisdiction is one the Court has to decide ex ofcio and thus regardless of the parties
submissions, while the same is not true for the substantive matters relevant in the
Asylum and Haya de la Torre cases.94 However, opacity remains as to the consistency
of the case law of the Court and international tribunals with regard to the scope of
res judicata.
The Courts astonishingly broad understanding of res judicata in a case where
it had to decide on the binding effect of one of its own previous judgments, in
contrast to, for example, the aforementioned Polish Postal Service in Danzig, King of
Spain and 1989 Arbitral Award cases, is more easily explained when revisiting the
rationale behind the res judicata effect in international law. If the ultimate goal is
the avoidance of re-litigation of identical or similar disputes, legal security, and,
eventually, the maintenance of peace by preserving the trust in the binding and
nal character of international legal dispute settlement, the scope of res judicata,
when considered in subsequent but original judgments, must be broad. The more
of the earlier judgment is regarded as nal and binding, the less of the issue can be
re-litigated and the more legal security promotes the international actors faith in
international adjudication.
Also, in the 2011 judgment in Territorial and Maritime Dispute, while it is not
entirely clear whether the Courts choice of the word essential as opposed to
inseparable was deliberate with regard to the wider or narrower approach to
the concept of res judicata, the same underlying rationale as in the 2007 Genocide
judgment applies here too. In the 2011 judgment, the Court clearly sought to prevent
Honduras from re-litigating a matter that had already been considered by the Court.

92 [2011] ICJ Rep. 420, at 443, para. 70.

93 See section 2.2. above.
94 The Court underlined in the 2007 Genocide judgment that, in its 1996 judgment, it had to decide the matter
of jurisdiction ex ofcio and therefore, by necessary implication pronounced also on Serbias standing under
the ICJ Statute, see [2007] ICJ Rep. 43, at 9899, para. 132.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 87

The Court therefore found itself again in a situation where a narrow concept of res
judicata could have undermined the authority of its prior judgments.95
Therefore, regarding implied motifs, for example, as res judicata, as the Court did
in the Genocide case, remains true to the rationale behind the doctrine.
Taking the very same rationale as point of departure in an interpretation proceed-
ing reveals what I may call the competing concepts of res judicata. We arrive at the
opposite conclusion: In order to prevent re-litigation and to further legal security and
faith in international adjudication, the object of interpretation must be narrow. The
broader the understanding of what constitutes res judicata, the more of the original
judgment can be considered again by the Court in an interpretation proceeding and
thus the more what should be interpretation turns into reconsideration.96
To put it polemically, ideally, the Court would have to reduce res judicata to
the dispositif when interpreting an original judgment pursuant to Article 60 of the
ICJ Statute, while, when confronted with the question of res judicata of a previous
decision in a proceeding under Article 36 of the Statute, it would have to stretch
its scope to include all the motifs as well. This is perplexing. How can the Court,
in fact any court or tribunal, entertain diametrical concepts for the same doctrine,
depending on the proceedings chosen?
The need for a uniform concept is obvious, considering that the issue of res judicata
may arise in consecutive proceedings, rst under Article 60 and then under Article
36 of the ICJ Statute. In fact, this was the situation in the Asylum and Haya de la
Torre cases, but a conict did not arise because the Court chose a narrow concept of
res judicata in both cases. However, based on its case law on Article 60 proceedings
prior to the Temple case judgment of 11 November 2013, one may be sceptical
about whether the Court, e.g., in the Genocide case would have employed the same
broad concept of res judicata, if it had had to interpret its 1996 judgment and then
subsequently had to decide on the same matter in a new proceeding under Article
36 of the Statute. In turn, contrasting Asylum/Haya de la Torre and Genocide (and
the 2011 judgment in Territorial and Maritime Dispute or the Pious Fund arbitration),
whether the applicant can actually bring a new case on a similar subject matter
must not depend on whether it resorts rst to Article 60 proceedings and only
thereinafter to Article 36 proceedings and then is successful with its application
as in Asylum/Haya de la Torre or seizes the Court directly with a new proceeding
pursuant to Article 36 of the Statute and then is unsuccessful with its application,

95 However, it is submitted that the 2011 judgment may also be reconciled with a narrower view in that it
underlines the importance of the reasoning of the 2007 judgment for understanding the outcome of the
decision, thus arguably embracing that such reasoning was inseparable from the dispositif, see [2011] ICJ
Rep. 420, at 443, para. 70: Without such reasoning, it may be difcult to understand why the Court did not
x an endpoint in its decision. With this reasoning, the decision made by the Court in its 2007 judgment
leaves no room for any alternative interpretation; see also Nicaraguas submissions, ibid., para. 54.
96 See section 1.1. above on the purpose and limits of interpretation proceedings pursuant to Art. 60 of the ICJ
Statute.
88 A N D R E AS KU L I C K

if one follows the approach taken, e.g., in the Genocide or 2011 Territorial and Maritime
Dispute cases.97
This brings us back to the Temple case. The Court, despite its reference to essential
reasons of the original judgment that may form part of the res judicata, and criticized
by Judge Cancado Trindade in his separate opinion,98 eventually applied very rig-
orously its approach, taken in earlier case law,99 that merely the operative part and
those parts of the reasoning that are inseparable from the operative part are subject
to res judicata effect. Despite revisiting the evidence before the Court in the original
judgment100 and its reasoning in such judgment pertaining to the geographical fea-
tures of the territory in question as presented in the Annex I map,101 the Courts
interpretation of the original judgment was always premised on the operative part
and remained within the connes of what it had pronounced therein.102
In sum, I think the Court should choose the narrow approach i.e., only the
dispositif and those parts of the motifs that are inseparable103 from the dispositif form
part of the res judicata effect of a judgment by the Court as the uniform concept
of res judicata to be employed equally in both Article 36 and Article 60 proceedings.
The Temple case is a very good example of how even such narrow understanding of
res judicata, when skilfully applied, serves very well to illuminate what the Court
decided in its original judgment. As just described, the Court was able to construe
what it meant by vicinity of the Temple by making reference to the evidence, the
oral pleadings, and the geographical features of the Temple area as presented in the
Annex I map before the Court in 1962. All this did not go beyond a construction of
the dispositif and reasoning inseparable from it, since all these formed part of the
parties submissions and therefore of the very core of the elements of res judicata, in
particular the petitum and the causa petendi.104
Furthermore, the Asylum and Haya de la Torre cases evince how the narrow concept
operates in the relationship between Article 60 and Article 36 proceedings and in fact
how such concept avoids a conict between the two proceedings. The approach in
Haya de la Torre was consistent with what the Court held in the Asylum interpretation
judgment, i.e., that surrender was a new issue, separate from the legality of the
asylum. While both matters are logically connected, they are nonetheless distinct
from one another. There is no evidence that the Courts decision to deny res judicata
effect of the Asylum case and thus to allow new proceedings in Haya de la Torre
has in any way undermined the authority of its decision or its role in international

97 I concede that the Genocide case differs in that it was not a new proceeding but merely a new judgment in
the same proceeding. However, to my mind, there is no reason why the Courts reasoning would not equally
apply in case of new proceedings under Art. 36 of the Statute.
98 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cancado Trindade, para.
55.
99 [1999 (I)] 31, at 35, para. 10; [2008] ICJ Rep. 311, at 323, para. 47; see also [2011 (II)] ICJ Rep. 537, at 542, para. 23.
100 (Cambodia v. Thailand), Judgment of 11 November 2013, paras. 86, 88; see also supra section 2.3.
101 Ibid., paras. 9098 and also 77; see also supra section 2.3.
102 Ibid., paras. 79106.
103 That is, in the words of Judges Owada, Bennoua, and Gaja, when the operative part of the Judgment is not
self-standing and contains an express or implicit reference to [the reasoning]; see (Cambodia v. Thailand),
Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua, and Gaja, para. 1.
104 See section 2.1. above.
 A RT I C L E 60 I C J STAT U T E , I N T E R P R E TAT I O N P RO C E E D I N G S 89

dispute settlement. However, by contrast, given the political and military tensions
between Cambodia and Thailand between 2008 and 2011, it is submitted that a broad
understanding of res judicata and, in turn, a reconsideration of the Courts reasoning
in the Temple case would have had a rather devastating effect.
Finally, employing the narrow approach of res judicata also for consecutive original
decisions has its roots in the PCIJs jurisprudence, as the above reference to the
Advisory Opinion in Polish Postal Service in Danzig demonstrates.105 The Court refused
however, in a rather indirect and polite manner to embrace the broad view
endorsed in the Pious Fund arbitration. Consequently, it declined to nd that the
High Commissioners opinion expressed in the motifs of his decision formed part of
what he had decided with binding force and limited the scope of res judicata in effect
to the narrow approach later endorsed by the ICJ.
Therefore, the narrow approach serves well to reconcile the frictions currently
existing in the case law of the Court and inter-state arbitration with regard to the
competing concepts of res judicata I eshed out in this contribution.

105 See section 2.2. above.

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