As readers have pointed out, the Grand Chamber in Lambert has now rectified its error, by amending paragraph 138 so that it now says in respect of Glass that: ‘in its judgment of 9 March 2004 it held that there had been a violation of Article 8 of the Convention’. The excellent blog post by Grégor Puppinck on Lambert nonetheless raises the broader question of the inherent power of international courts and tribunals to reopen their judgments.
All international courts and tribunals have the inherent power, in certain circumstances, to reopen their judgments. It has always been recognized that, as the report of the Advisory Committee of Jurists drafting the Statute of the Permanent Court of Justice, put the matter, although the principle of res judicata is underpinned by the fundamental value that ‘for the sake of international peace [a matter decided] should be considered as finally settled’, ‘[j]ustice, however, has certain legitimate requirements’ (Procès-Verbaux of the Proceedings of the Committee (Van Langenhuysen Brothers 1920) 744).
This was echoed by Professor Sir Derek Bowett, who observed, in connection with the theme of reopening a final judgment for the purpose of rectification, that such a procedure:
‘has the aim of ensuring that the award is “correct … and to this extent [such] procedures are fully consistent with the principle of res judicata and have the same purpose of securing respect for the award. Obviously, an “incorrect” or ambiguous award will not be one to command respect, so that these procedures, if confined within proper limits, will support rather than detract from the principle of res judicata’ (DW Bowett, ‘Res Judicata and the Limits of Rectification of Decisions by International Tribunals’ (1996) 8 African Journal of International & Comparative Law 577, 577).
As the Arbitral Tribunal in the famous Sabotage Claims put it, in certain limited circumstances, ‘[e]very tribunal has inherent power to reopen’ ((1933) 8 RIAA 160, 190). This is clear, too, from the jurisprudence of the International Court of Justice. In Effect of Awards of Compensation the International Court of Justice, dealt with certain judgments of the Administrative Tribunal of the United Nations, observing that it relied, in the first place, on the ‘well-established and generally recognized principle of law’ according to which ‘a judgment rendered by a judicial body is res judicata and has binding force between the parties to the dispute’. The Court then specified that the Statute of the Administrative Tribunal of the United Nations ‘has provided for no kind of review’, Article 10(2) of the Statute stating that: ‘The judgments shall be final and without appeal.’ The Court explained that this omission was deliberate, as it had been considered that: ‘in the interests of finality and of the avoidance of vexatious proceedings’ the Tribunal’s judgments should be final and without appeal. Nonetheless, the Court determined, the:
‘rule contained in Article 10, paragraph 2, cannot however be considered as excluding the Tribunal from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered; and the Tribunal has already exercised this power’ (ICJ Rep 1954 p 47, 53–4).
This power plainly extends to cases where it could be argued that what was at issue was not so much a new fact as an error. The Arbitral Tribunal in Baron de Neuflize v Disconto Gesellschaft ((1928) 7 Recueil des Tribunaux arbitraux mixtes 629) applied the following test, which was also applied in approach was also taken in the famous Trail Smelter (USA v Canada) case ((1941) 3 RIAA 1905, 1957):
‘in order to justify revision it is not enough that there has taken place an error on a point of law or in the appreciation of fact, or in both. It is only lack of knowledge on the part of the judge and of one of the parties of a material and decisive fact which may in law give rise to the revision of a judgment’.
International courts and tribunals have broad powers of reopening in the interest of justice and in the interest of ensuring that their judgments command the respect that the principle of res judicata demands.