Abuse of Process and Abuse of Rights Before the ICJ: Ever More Popular, Ever Less Successful?

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Abuse of process and abuse of rights objections seem to have become increasingly popular in cases before the ICJ. While acknowledging that the two concepts have much in common, the Court has distinguished between them by noting that ‘abuse of process’ relates to judicial proceedings and is a preliminary issue that may bar admissibility, while ‘abuse of rights’ relates to the merits, as it ‘cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’ (Equatorial Guinea v. France, paras. 146, 150-151). Simply put, as a general rule, abuse of process relates to the manner of initiating (and conducting) proceedings, while abuse of rights relates to the substance of the dispute.

This apparent trend is taking place despite the fact that the Court almost invariably denies such objections (as in Certain Phosphate Lands in Nauru, paras. 37-38 and Border and Transborder Armed Actions, para. 94). It has repeatedly noted (as in Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49) that an abuse of process plea could only be upheld in ‘exceptional circumstances’. In some instances, the ICJ deferred the issue to a later stage of the proceedings (as in Qatar v. UAE, para. 39 and Equatorial Guinea v. France, para. 151).

In recent ICJ case law, relying explicitly or implicitly on the principle of good faith, parties have accused each other of abuse of process or rights in a range of circumstances. For example, abuse was alleged when two proceedings in relation to the same object were started in Qatar v. UAE; when there was an alleged violation of the dispute settlement mechanisms provided for in the treaty in Qatar v. UAE and Jadhav; when the relief sought was unavailable under the treaty in Equatorial Guinea v. France and Jadhav; and when there was an alleged incompatibility between the application and the object and purpose of the treaty in Certain Iranian Assets and Jadhav.

This post provides an overview of the arguments that have been made before the ICJ in these recent cases, sets out how the Court has dealt with them and concludes with a brief assessment of why parties make these arguments, despite the low chances of success – and a short speculation as to why they seem to be increasingly doing so.

Equatorial Guinea v. France

In Equatorial Guinea v. France, France put forward an abuse of rights claim in relation to actions that Equatorial Guinea had undertaken allegedly to shield its Vice-President, Mr. Teodoro Nguema Obiang Mangue, and his assets against ongoing criminal proceedings in France (para. 140). Moreover, France argued that the application was an abuse of process because it was submitted ‘in the manifest absence of any legal remedy’ (para. 141). As a result, the French position was that the Court should decline to hear the dispute between the parties.

With regard to the abuse of rights claim, the Court held that this was a matter for the merits (para. 151). With regard to abuse of process, the Court held that, ‘having established a valid title of jurisdiction’, Equatorial Guinea should not be ‘barred at the threshold without clear evidence that its conduct could amount to an abuse of process’, highlighting the need for ‘exceptional circumstances’ for the Court to reject a claim where there is a valid title of jurisdiction (para. 150). Judge Joan Donoghue strongly disagreed with this finding, maintaining that the present case did form such an exceptional circumstance as ‘[t]he purpose of those actions, which was stated by the President of the applicant State [a personal one, to address difficulties faced by his son], is manifest. The evidence regarding the character of the Applicant’s conduct is conclusive, easily meeting the heightened standards of proof that the Court has suggested in certain circumstances’ (Dissenting Opinion, paras. 15 and 18).

Qatar v. United Arab Emirates

After the UAE expelled all Qatari nationals from its territory in June 2017 as part of the broader diplomatic crisis between Qatar and a coalition of states (see also Application, para. 22), Qatar launched proceedings first before the Committee on the Elimination of Racial Discrimination (in March 2018), then before the ICJ (in June 2018), claiming a violation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in both cases.

In the provisional measures proceedings at the ICJ, though, there is no express reference to the concept of abuse of process: the UAE argued that the Court did not have jurisdiction under Article 22 CERD, as this Article speaks only of referring disputes to the ICJ which have not been ‘settled by negotiation or by the procedures expressly provided for in [CERD]’ (see Verbatim Record, pp. 16-17). Amongst other things, the UAE contended that Qatar had not negotiated as required by the treaty (pp. 23-24). The UAE also argued that Qatar’s actions were incompatible with the principles of electa una via, lis pendens, and good faith, as it had started two disputes in two different fora in relation to the same object, under the same treaty (p. 27). Qatar responded that there was no bar to initiating binding and non-binding dispute settlement procedures simultaneously under international law (Verbatim Record, pp. 15-16). The Court chose not to decide this latter issue (2018 Provisional Measures, para. 39).

In a request for provisional measures in 2019, the UAE asked the ICJ to order Qatar – among other things – to ‘immediately withdraw its Communication submitted to the CERD Committee’ (para. 74(i)), but the Court responded that this request did not concern the preservation of a right of the UAE under CERD and thus did not meet the criteria for issuing provisional measures (2019 Provisional Measures, para. 25). The ICJ also repeated its finding from the previous year’s order that it need not settle the issue at the current stage of proceedings.

Certain Iranian Assets

In Certain Iranian Assets, a case concerning US measures taken against such assets, the United States argued that bringing the case formed an instance of ‘exceptional circumstances’ where Iran’s application should be dismissed as an abuse of process. The US provided three reasons to support this claim: first, Iran attempted to rely on the Treaty of Amity’s compromissory clause despite the fact that the underlying conditions of the Treaty no longer exist between the parties (para. 107); second, Iran ‘subverted’ the purposes of the Treaty (para. 108); and third, a decision on the merits by the Court would rest on ‘a fiction’ and be incompatible with the Court’s judicial function (para. 109). The Court rejected this argument on the basis that the Treaty of Amity was in force when Iran filed its application and there were no exceptional circumstances warranting the rejection of its claim (para. 114).

Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights

The US also alleged a lack of good faith on Iran’s part when Iran requested provisional measures in the Alleged violations of the 1955 Treaty of Amity case, brought after the Trump administration withdrew from an Obama-era nuclear deal and reinstated sanctions against Iran. Specifically, the US argued that Iran was using the procedures of the Treaty of Amity to enforce rights it was claiming under a different instrument which itself excluded judicial remedies (the nuclear deal, known formally as the Joint Comprehensive Plan of Action, or JCPOA) (see Verbatim Record, p. 10). The US also contended that Iran had invoked the compromissory clause in the Treaty of Amity despite having ‘expressly and repeatedly disavowed’ the Treaty by its ‘words and actions’ (p. 12). Finally, the US alleged that Iran was not invoking the Treaty of Amity in good faith but as part of a ‘political and psychological campaign’ (Verbatim Record, pp. 40-41). In its order for provisional measures, the Court dealt with the US arguments relating to the JCPOA as a matter of prima facie jurisdiction (paras. 38-39, 44), plausibility of rights (paras. 62, 64) and linkage between the rights claimed and provisional measures requested (paras. 73, 76), but did not otherwise discuss the arguments relating to alleged Iranian abuses.

Jadhav (India v. Pakistan)

This case concerned the arrest, trial by military court, and sentencing to death of Mr. Jadhav, on charges of espionage and terrorism. India brought a claim to the Court under the Optional Protocol of the Vienna Convention on Consular Relations (VCCR), alleging breach of the VCCR’s provisions on consular access. Pakistan argued that India’s application and request for provisional measures was an abuse of process because the relief sought by India – in essence, the release of Mr. Jadhav or the annulment of the Pakistani judgment and his retrial in civilian court – was unavailable from the ICJ (Pakistan’s Countermemorial, paras. 129, 138-139). The Court, while finding a breach of Article 36 VCCR, indeed stressed that it was ‘not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation’, and that the remedy must respond to the violation (Judgment, paras. 135-137). In line with its previous jurisprudence on consular access, the ICJ ordered an ‘effective review and reconsideration’ of Mr. Jadhav’s case by Pakistan, but did not treat the Indian request for relief as an abuse of process (paras. 138-147).

In addition, Pakistan alleged further abuse of process on two grounds: first, that, when requesting provisional measures, India failed to mention that there were still avenues open to Mr. Jadhav to ask for clemency (Pakistan’s Countermemorial, paras. 130-141); and second, that India evaded the VCCR Optional Protocol’s dispute resolution mechanisms (para. 142), ambushing Pakistan with legal proceedings in breach of the Optional Protocol (paras. 148-149). India, for its part, argued that Pakistan’s abuse of process allegations ‘turn[ed] the Vienna Convention on its head’ (India’s Reply, para. 87). As to the first of these arguments, the ICJ repeated its finding from the provisional measures order that there was ‘considerable uncertainty as to when a decision on any appeal or petition could be rendered and, if the sentence is maintained, as to when Mr. Jadhav could be executed’ and there was thus no abuse of process by India (Judgment, para. 44; Provisional Measures, para. 54). As to the second, the Court affirmed that – as already held in Tehran Hostages – Articles II and III of the Optional Protocol merely provide the option of recourse to arbitration or conciliation but do not constitute prerequisites for bringing the matter to the ICJ (Judgment, paras. 45-48). Finally, in its considerations on abuse of process, the Court also repeated its now-familiar formula that only ‘exceptional circumstances’ would warrant a finding of such abuse and that this was not the case here (para. 49).

Pakistan also claimed abuse of rights on three grounds: first, India’s refusal to prove Mr. Jadhav’s nationality by providing his actual passport; second, India’s failure to cooperate in Pakistan’s criminal investigation; and third, that India authorized Mr. Jadhav to enter Pakistan under a false name ‘to conduct espionage and terrorist activities’ (para. 52). In response to the first of these claims, the Court pointed out that both parties treated Mr. Jadhav as an Indian national and there was accordingly ‘no room for doubt’ in this matter (para. 56). As the second and third related to alleged breaches of UNSC Resolution 1373 (2001), the ICJ joined these claims to the merits, where it found that Article 36 VCCR was not conditional upon compliance with other obligations under international law (paras. 121-124).

India, in turn, claimed that Pakistan’s attempt to play a ‘doctored video’ in the course of the hearing was an abuse of process (India’s Reply, para. 80). The Court did not address this claim in the judgment.

Why waste one’s breath on abuse of process/rights claims?

Hersch Lauterpacht urged caution in applying the doctrine of abuse of rights: ‘[t]here is no legal right, however well established, which could not, in some circumstances, be refused recognition on the ground that it has been abused. The doctrine of abuse of rights is therefore an instrument which, apart from other reasons calling for caution in the administration of international justice, must be wielded with studied restraint.’ (The Development of International Law by the International Court (London: Stevens & Sons, 1958), p. 164.) The ICJ seems to follow this advice whenever allegations of abuse of process or abuse of rights are made – even if this does not deter parties from pursuing such allegations.

The first question is thus: why do parties bring abuse of process/rights claims? The answer probably lies more in the parties’ factual and strategic decision-making than in rigorous legal reasoning. First of all, States wish to present a united and coherent front: if they have put forward a similar argument in a different context (as the US did before the Iran-US Claims Tribunal), they will aim to sustain this position before the ICJ as well. Second, they wish to maintain consistency between arguments on jurisdiction and on the merits. Finally, the Court exercises in this matter, as in others, utmost caution: as long as there seems to be some ground upon which jurisdiction could potentially be found (as was the case in Equatorial Guinea v. France), the Court will probably opt to analyse such potential jurisdiction rather than dismiss the case outright on grounds of abuse.

The second question is: in light of the low chances of success, why does the number of cases in which these arguments are being made, seem to be on the increase? Explanations are by definition speculative but may include: a possible rise in ‘real’ abuse (Equatorial Guinea v. France); entrenched antagonism between the parties (Iran v. the US; India v. Pakistan); the Court’s refusal to clearly say in which cases or circumstances such arguments will never be accepted; and counsel copying each other. Finally, there seems to be a growing tendency towards ‘fighting every step’, if only to demonstrate to one’s home constituency that no stone has been left unturned and thereby deflect public disapproval in case the ultimate judgment is not in one’s favour – a desire that is understandable in the context of the ongoing public backlash against international courts and tribunals.

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Nicolas Angelet says

October 15, 2019

Thank you very much, dear Freya, for this extremely interesting analysis. In my view, there might be a further reason why the abuse arguments are being made despite the low chances of success. They could be a means of fighting for the hearts and minds of the judges. The party bringing the argument presents itself as a friend of the Court, and the opponent as disloyal to the Court. This, States and their counsel may believe, could be effective rhetorics even if the argument does not succeed in technical legal terms. Kind regards, Nicolas

Mike Becker says

October 15, 2019

Thank you for this timely post. It is troubling that these cases (with the exception of Equatorial Guinea v France, I would argue) demonstrate a knee-jerk tendency to invoke "abuse of rights" and/or "abuse of process" in response to the adversary state simply making arguments that the invoking state rejects (a feature of any dispute that goes to litigation) or taking other steps that aim to vindicate its position. A key function of litigation is to allow even weak claims and bad arguments to play out, including perhaps even claims and arguments made in bad faith (up to a point; again, see Equatorial Guinea v France). I think your explanations for why states fall back on "abuse" arguments are on point, but the willingness with which some states do so also suggests a lack of confidence in the power of the better argument and, by extension, an underlying hostility towards international adjudication. It is reminiscent of the ways in which the term “lawfare” is sometimes used pejoratively and selectively to delegitimize an adversary state’s engagement with international law in the pursuit of its interests.