Panama submitted an Application on 17 December 2015 instituting proceedings against Italy in a dispute concerning the arrest and detention of the M/V "Norstar". A certified copy of the Application was transmitted to Italy, on 17 December 2015. In its Application, the "Applicant requests the Tribunal to adjudge and declare that:
1. Respondent has violated articles 33, 73 (3) and (4), 87, 111, 226 and 300 of the Convention;
2. Applicant is entitled to damages as proven in the case on the merits, which are provisionally estimated in Ten Million and 00/100 US Dollars [sic] (10,000,000); and
3. Applicant is entitled to all attorneys' fees, costs, and incidental expenses."
- The Preliminary Objections were submitted within the time-limit of 90 days from the institution of proceedings (see article 97, paragraph 1, of the Rules).
- Proceedings on the merits were suspended (see article 97, paragraph 3, of the Rules).
Pursuant to the President's Order of 15 March 2016, Panama filed its written observations and submissions on 9 May 2016, and Italy its written observations and submissions in reply on 8 July 2016.
On 22 August 2016, Panama submitted a request dated 16 August 2016 "for a ruling concerning the scope of the subject matter based on the preliminary objections filed by Italy". Italy contested this request of Panama's by letter of 23 August 2016 (see also PV5, p. 11, ll.45-48).
(a) it lacks jurisdiction with regard to the claim submitted by Panama in its Application filed with the Tribunal on 17 December 2015;
(b) the claim brought by Panama against Italy in the instant case is inadmissible to the extent specified in the preliminary objections" (Preliminary Objections, para. 36, see paras 5 and 27; see Reply, para. 178; see PV5, p. 12, ll. 16-39: Final Submissions).
FIRST, declare that
1. it has jurisdiction over this case;
2. the Application made by Panama is admissible; and
3. the Italian Republic has not complied with the rule of Due Process of Law;
SECOND, that as a consequence of the above declarations the Written Preliminary Objections made by the Italian Republic under Article 294, paragraph 3, of the Convention, are rejected" (Observations, "Petitum", p. 17; PV6, p. 17, ll. 27-37: Final Submissions).
On the principle of "equality of arms" : "[T]here can be no basis for Panama to claim that any breach of the principle of equality of arms may have occurred. Panama has had ample opportunity to respond to these objections and it has the further ability to respond to these objections during this hearing" (PV1, p. 8, ll. 34-38; see PV5, p. 11, ll. 12-15 and 35-40).
On "inherent powers" of the Tribunal : "Italy acknowledges that the Tribunal in any event has wide and inherent powers to consider its jurisdiction and the admissibility of the claim. These wide and inherent powers extend to empowering a tribunal to consider jurisdiction and admissibility where objections have not been timely made - and even if they have not been made at all - is part and parcel of general international law" (PV1, p. 8, l. 47 - p. 9, l. 2).
"[N]one of the six Preliminary Objections of which Panama complains was newly made in Italy's Reply" (PV1, p. 7, ll. 19-20).
On "lack of representative powers" : see PV1, p. 7, ll. 27-39; PV5, p. 3, ll. 720;
On "irrelevance of rights invoked" : see PV1, p. 7, ll. 41-47.
On "order for seizure not amounting to a breach of an international obligation" : see PV1, p. 8, ll. 1-10; PV5, p. 4, ll. 1-14;
On "exchange of views" : see PV5, p. 3, ll. 22-25;
On "attribution of conduct" : see PV1, p. 8, ll. 12-14;
On "espousal nature" of the claim : see: PV1, p. 8, ll. 16-20; PV2, p. 1, ll. 914; PV5, p. 3, ll. 22-25;
On acquiescence, prescription and estoppel : see PV1, p. 8, ll. 22-23; PV 2, p. 19, ll. 16-41.
On Italy's arguments made in its Reply concerning "representative powers ": "None of these points were included in the Preliminary Objections and therefore were not discussed by Panama in its written Observations and Submissions" (Request for a Ruling, para. 11; see PV4, p. 19, l. 35 - p. 20, l. 9).
On Italy's arguments made in its Reply concerning "relevance of provisions invoked by Panama" : "In its Reply, Italy continues to argue against the relevance of each of the provisions invoked by Panama in its Application (Reply, paras 33-49). Panama is now unable to challenge these Objections in written form because Italy has raised them for the first time" (Request for a ruling, para. 13; see PV4, p. 20, ll. 11-21).
On Italy's arguments made in its Reply concerning "the order of seizure as a preparatory act" : "...if we examine the Preliminary Objections filed by Italy, it is easy to note that this contention was not mentioned in that document. Consequently, in its Observations and Submissions to the Preliminary Objections of Italy, Panama did not refer to this matter, either" (Request for ruling, para. 17; see PV4, p. 20, ll. 23-32).
On Italy's arguments made in its Reply concerning "attribution of conduct" : "The fact that Panama has claimed that the right of peaceful navigation was violated by Italy, and that Italy has now challenged this by stating that it did not actually carry out the arrest, constitutes a further new Objection based on the Independent Responsibility principle that Panama did not anticipate, and raises new questions about how a state's conduct should be defined and how Article 6 of the ILC ASR provisions should be applied. These questions have now added a new dimension to this procedure to which Panama has so far been unable to respond" (Request for ruling, para. 21; see PV4, p. 20, ll. 34-42).
On Italy's arguments made in its Reply concerning "espousal nature of the claim" : "Italy did not refer to this Objection in any of the arguments put forward in its Preliminary Objections. Therefore, Panama has not had the opportunity to refer to then in its Observations" (Request for ruling, para. 24; PV4, p. 20, l. 44 - p. 21, l. 2).
On Italy's arguments made in its Reply concerning "acquiescence" : "[T]his is also the first time that Italy has described Panama's claim as Acquiescent" (Request for ruling, para. 27). "...since Italy did not include any of the above identified issues in its Preliminary Objections, all of them must be rejected due to its failure to timely address these concerns" (Request for ruling, para. 30; see PV4, p. 21, ll. 4-8).
• On 11 March 2016, Italy raised preliminary objections that the Tribunal did not have jurisdiction and that Panama's Application was inadmissible;
• On 10 May 2016, Panama filed its written observations and submissions in response to Italy's objections; and
• On 8 July 2016, Italy filed its Reply to the Panamanian observations.
• On 22 August 2016, Panama submitted an Application "requesting a decision on the scope of the preliminary objections raised by Italy"; and
• On 23 August 2016, Italy opposed the Application submitted by Panama.
(1) "Any objection to the jurisdiction of the Tribunal or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within 90 days from the institution of proceedings".
(2) "The preliminary objection shall set out the facts and the law on which the objection is based, as well as the submissions".
(1) "It is in violation of the Principle of Due process of Law and procedurally anomalous to allow the respondent to file additional objections i. e. those that were not referred to either in the Preliminary objections or in the observations made by the applicant in response
(2) Panama requests that the Tribunal reject any and all of these objections as files because they are in contravention of paragraph 1 of 97
(3) The principle of Equality of Arms states that both parties to a dispute must be allowed the same opportunities
(4) Italy is unduly hindering Panama's case by now bringing up additional points
(5) If the new objections are deemed admissible, Panama will have been placed at a procedural disadvantage
(6) An elementary and fundamental requirement of due process in any proceeding is the opportunity for both parties to present their respective arguments on equal terms
(7) Italy has made objections beyond the 90 days time limit in its attempt to broaden the scope of its preliminary objections and,
(8) The only opportunity that Panama now has to make use of its right to contradict these arguments is in the oral proceedings. However, this would affect the principle of due process of law of contradiction, and of égalité d'armes because of the lack of time for Panama to study, corroborate and challenge these new objections and arguments."
those grounds of defence based on the merits of the case and calculated to cause the judge to refuse to entertain the application, such as are generally called - in French law for instance - by the name of fins de non-recevoir ? Or is it not rather a genuine objection, directed - like that which has just been considered by the Court - not against the action itself and the legal arguments on which it is based, but against the bringing of the action before the tribunal? [ Judgment n° 6, 1925, P.C.I.J. Series A no. 6, p.19].
means invoked during the first phase of a case and intending to ensure that the tribunal seized of the case decides on a preliminary question before examining the merits of the case, the aim of the objection most often being to prevent the merits being examined (Salmon (ed.) Dictionnaire de droit international public, Brussels 2001, p. 474) [translation by the Registry].
On 7 March 2006, Bosnia and Herzegovina provided the Court and the Respondent with a CD-ROM containing "ICTY Public Exhibits and other Documents cited by Bosnia and Herzegovina during its Oral Pleadings (07/03/2006)". By a letter dated 10 March 2006, Serbia and Montenegro informed the Court that it objected to the production of the CD-ROM on the grounds that the submission at such a late stage of so many documents "raise[d] serious concerns related to the respect for the Rules of Court and the principles of fairness and equality of the parties". It also pointed out that the documents included on the CD-ROM "appear[ed] questionable from the point of [view of] Article 56, paragraph 4, of the Rules [of Court]". By a letter dated 13 March 2006, the Agent of Bosnia and Herzegovina informed the Court of his Government's views regarding the above-mentioned objections raised by Serbia and Montenegro. In that letter, the Agent submitted, inter alia, that all the documents on the CD-ROM had been referred to by Bosnia and Herzegovina in its oral argument and were documents which were in the public domain and were readily available within the terms of Article 56, paragraph 4, of the Rules of Court. The Agent added that Bosnia and Herzegovina was prepared to withdraw the CD-ROM if the Court found it advisable. By a letter of 14 March 2006, the Registrar informed Bosnia and Herzegovina that, given that Article 56, paragraph 4, of the Rules of Court did not require or authorize the submission to the Court of the full text of a document to which reference was made during the oral proceedings pursuant to that provision and since it was difficult for the other Party and the Court to come to terms, at the late stage of the proceedings, with such an immense mass of documents, which in any case were in the public domain and could thus be consulted if necessary, the Court had decided that it was in the interests of the good administration of justice that the CD-ROM be withdrawn. By a letter dated 16 March 2006, the Agent of Bosnia and Herzegovina withdrew the CD-ROM which it had submitted on 7 March 2006.
Whereas the claim thus made raises a question regarding the Court's jurisdiction, and as this question is connected with another, namely, whether, on the basis of Article 72, paragraph 3, of the Geneva Convention, a State, in its capacity as a Member of the Council, may claim that an indemnity be awarded to a national of the respondent State, who is a member of a minority; and as the latter question which the Court feels called upon to raise proprio motu concerns the merits, the Court cannot pass upon the question of jurisdiction until the case has been argued upon the merits (Case concerning the Administration of the Prince of Pless (Preliminary Objection), Order of 4 February 1933, P.C.I.J. Series A/B, no. 52, p. 15; see also South West Africa Cases, I.C.J. Reports 1966, pp. 18-19).
- lack of standing;
- lack of competence;
- preclusive time-limits; and
- res judicata ;
constitutes a fin de non-recevoir.
In sum, it should be noted that Panama's Application involves a procedural objection and the Tribunal is competent to:
- adjudicate on procedural objections;
- adjudicate on interventions bringing a case to a close;
- consider that a procedure is irregular;
- prescribe any provisional measures, including any instructions;
- reject the new Italian objections as set out in the Reply; and finally
- agree a new time-limit for Panama, to allow it to respond in writing after the oral proceedings, because the common basis of the procedural provisions in all legal systems is the actual equality of the parties: this is a consequence of the judicial nature of the Tribunal.
- the order in which the pleadings are presented;
- the burden of proof;
- the hearing of the parties and their right to respond in application of the principle "auditur et altera pars" (Nottebohm case) ;
- the allocation of time to prepare the files (memorial/counter-memorial, etc.);
- speaking time.
"...the communications received both from Mr Carreyó and the Government of Panama had no relevance for the purposes of the fulfilment of the requirement of the existence of an international dispute between Italy and Panama. First, Mr Carreyó's communications could not be deemed as coming from a State representative entitled to invoke Italy's responsibility... Second... they either concerned the anticipation that a prompt release procedure would be triggered - which has never been done - or consisted in advancing a claim for damages without advancing the legal grounds for such requests under international law, least of all indicating the rights invoked in the Application " (Reply, para. 26, see para. 10).
"[T]he lack of a situation which could lead to a dispute between the Parties is due principally to Mr Carreyó's role not being a representative one. Mr Carreyó appeared to the Italian officials in his first letter of 15 August 2001 to be acting as a private individual, without any authorization to represent or negotiate on behalf of the Government of Panama" (PV1, p. 11, ll. 4044).
"[W]e cannot confuse the power to litigate with the power to represent a State in diplomatic relations" (PV1, p. 12, l. 22-23). "In particular, the power for an individual to act "on behalf" of a State for the purpose of prompt release proceedings is a unique kind of power under article 292. It does not extend to the power to act on behalf of the State beyond those proceedings" (PV5, p. 3, ll. 38-43).
"Italy has not failed to respond to diplomatic communications from Panama on the matter in issue, it simply did not respond to Mr Carreyó since he was not vested with powers to negotiate with Italy over the facts of the present case" (Reply, para. 9).
"The communications received by the Italian Government on the facts in issue did not come from Panamanian governmental authorities" (Reply, para. 10).
"Italy, contrary to Panama's allegations, did not conceal communications from Mr Carreyó, or Panama, but argued the impropriety and irrelevance -for diplomatic, hence legal, purposes - of such communications..." (Reply, para. 11).
On the letter from the Panamanian Ministry of Foreign Affairs of 2 December 2000 to the Registrar of the Tribunal : "The document simply restricts itself to authorizing [Mr Carreyó] to litigate on behalf of Panama, clearly within the exclusive limits of prompt release proceedings within the meaning of article 292 of the Convention" (PV1, p. 13, ll.28-30).
On the letter of 31 August 2004 : see PV1, p. 12, ll. 36-39
On note verbale AJ 2227 : "In the third and fourth paragraphs, this letter indicates that it is sending to the Italian Government a letter from Mr Carreyó, dated 3 August 2004 and duly certified and apostilled. This is a curious way of proceeding and you might wonder who is representing whom in this case: public or private? Which way round is it?" (PV1, p. 15, ll. 9-13).
On specific communications : see Preliminary Objections, paras 10, 13, 14; see Reply, paras 12 to 26; see also PV1, p. 12, l. 40- p. 13, l. 30; p. 14, l. 45 - p. 17, l. 9.
"...the detention of the M/V Norstar, its acquittal, and the subsequent failure of Italy to pay damages constitute a dispute, and... Italy's refusal to respond to any of the formal communications it received from Panama concerning this matter have prolonged that dispute's existence" (Observations, para. 76).
On communications :
"By refusing to answer Panama's communications, Italy has, in fact, implicitly taken a very different position from Panama by rejecting Panama's formal requests, thereby confirming the existence of a serious disagreement" (Observations, para. 9).
"I [the Agent of Panama] do not have to communicate in diplomatic language or with a note verbale. Perhaps presuming that Italy would raise this issue, I went to the Ministry of Foreign Affairs of Panama and requested that the communications I had been sending to Italy be then sent through diplomatic channels" (PV4, p. 12, ll. 38-41).
"Italy has not responded to any of the written communications sent by Panama... That Panama has made a claim which Italy has not acknowledged, much less attempted to resolve, clearly indicates the existence of a dispute. The Tribunal should recognize the good intentions of Panama and take into account the silence of Italy as unambiguous evidence of its refusal of Panama's claim" (Observations, para. 7, see also para. 8).
"...the Rules of the Tribunal do not prohibit a party being represented by a 'private lawyer'" (PV6, p. 2, ll. 22-23).
"...a correspondence does not need to include a written representative power for representation to be effective. An indication of the person or state who is represented is sufficient. Also, the relevant authorization can be given with retroactive effect by the state represented" (PV6, p. 2, ll. 28-31).
"...with note verbale 2227 of 31 August 2004, Panama expressly confirmed to Italy that its Ministry of Foreign Affairs had certified that lawyer Nelson Carreyó was empowered to act as the representative of the Republic of Panama before the International Tribunal for the Law of the Sea" (PV6, p. 2, l. 33-39).
On the letter from the Panamanian Ministry of Foreign Affairs of 2 December 2000 to the Registrar of the Tribunal :
"The document simply restricts itself to authorizing [Mr Carreyó] to litigate on behalf of Panama.... [Italy] only adds that it was for the prompt release procedures.... when a lawyer obtains a power of attorney to lift the arrest of a vessel, is it not also authorized to communicate with another party in any terms?" (PV4, p. 13, ll. 22-26; see also PV6, p. 2, ll. 12-15).
On specific communications : see Observations, paras 19 to 33; PV3, p. 16, I. 24 - p. 17, l. 15; p. 17, l. 39 - p. 20, l. 2.
On the declarations pursuant to article 287 of the Convention : see Observations, para. 49; see Application, para. 2.
On correspondence : see PV 1, p. 18, ll.26-27 and p. 19, ll. 22-24.
On article 288 of the Convention : see Preliminary Objections, para. 18, and Reply, para. 29):
"...the provisions of UNCLOS that Panama relies upon are manifestly inapplicable to the facts of the present case, and therefore cannot provide an appropriate legal basis for sustaining Panama's Claims" (Reply, para. 32; see Preliminary Objections, para. 19).
"...Panama refers to provisions totally inconsistent, both ratione loci and ratione materiae, with respect to the seizure of the M/V Norstar in the Bay of Palma de Mallorca, that is, in Spanish internal waters, by the Spanish Authorities" (Reply, para. 32).
"[A]ll the provisions referred to by Panama in its Application manifestly concern maritime zones different from internal waters. Consequently, articles 33, 87 and 111 UNCLOS clearly do not apply to the facts of the instant case" (PV5, p. 6, ll. 24-27).
"It is not enough... for the Applicant to refer to a certain number of the provisions of the Convention when he files his application to obtain the jurisdiction ratione materiae of the Tribunal" (PV1, p. 18, ll. 38-40).
On article 33 of the Convention : see Reply, para. 33; PV1, p. 35, ll. 26-33;
On article 73 of the Convention : see Reply, paras 34 to 36; PV1, p. 35, l. 35 - p. 36, l. 12;
On article 87 of the Convention : see Reply, paras 37 to 39; PV1, p. 19, II. 31-44; p. 36, ll. 14-34;
On article 111 of the Convention : see Reply, para. 41; PV1, p. 36, l. 36 - p. 37, l. 9; PV5, p. 6, l. 29-37;
On article 226 of the Convention : see Reply, paras 42 to 44; PV1, p. 37, ll. 10-30;
On article 300 of the Convention : see Reply, paras 45 to 48; PV1, p. 37, ll. 32-41.
"The claim of the Republic of Panama is based on Respondent's violations of Articles 33, 73 (3) and (4), 87, 111, 226 and 300 and others of the Convention. The right of peaceful navigation of the Republic of Panama through the mv Norstar was violated by the Italian Republic agents the latter hindering the movements and activities of foreign vessels in the High Seas without complying with essential norms of the Convention..." (Application, para. 9; see Observations, paras 49 and 71).
"Panama takes this opportunity to concede that article 73 (Reply, paragraphs 34, 35, and 36) and article 226 (paragraphs 42, 43 and 44) do not apply to this case, since these provisions fall under Part XII, which is devoted to the protection and preservation of the marine environment" (PV3, p. 23, ll. 15-18; see also PV3, p. 9, ll. 14-15).
"In its Application to the Tribunal, Panama identified the subject-matter as 'a dispute concerning, inter alia, the contravention by the Italian Republic of the provisions of the Convention in regard to the freedoms of navigation and/or in regard to other international lawful uses of the sea specified in Article 58 of the Convention....for damages...caused by an illegal arrest of the Norstar'" (Observations, para. 49; see Application, para. 3; PV3, p. 23, ll. 23-26).
On article 87 of the Convention : PV3, p. 23, ll. 50-51; PV3, p. 24, ll. 12-13;
On article 111 of the Convention : PV3, p. 24, ll. 22-38;
On article 297 of the Convention : see Observations, para. 51; PV3, p. 9, ll. 15-18;
On article 300 of the Convention : PV3, p. 24, ll. 40-43.
a) the inexistence of a dispute;
b) non-respect of the obligation to proceed with an exchange of views. In its opinion
c) only State organs or persons expressly authorized may act on behalf of a State and a distinction has to be made between
d) a specific aim and general aims.
If the Court is seized on the basis of declarations made under Article 36, paragraph 2, of the Statute, it is not necessary for negotiations to be held unless one of the relevant declarations states otherwise (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 275, at p. 322, para. 109). Moreover, "although a formal diplomatic protest may be an important step to bring a claim of one party to the attention of the other, such a... protest is not a necessary condition... in determining whether a dispute exists or not" (Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, 17 March 2016, para. 72). Similarly, the notification of the intention to bring proceedings is not necessary for the purpose of being able to seize the Court (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 297, para. 39).
The existence of a dispute must be established objectively by the Court on the basis of an examination of the facts (Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, 17 March 2016, para. 50). To that end, it takes account in particular of all the declarations or documents exchanged between the parties (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 422, at pp. 443-445, paras 50-55), and exchanges which have taken place in multilateral fora (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v . Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 70, at p. 94, para. 51, p. 95, para. 53). In so doing, it pays particular attention "to the author of the statement or document, their intended or actual addressee, and their content" (ibid., p. 100, para. 63).
The Parties' conduct may also be taken into account, in particular in the absence of diplomatic exchanges (Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, 17 March 2016, paras 71 and 73). As the Court stated
a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis.. as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party (Land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89.)
In particular, the Court judged that "the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for" (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para 30, citing Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, par. 89).
The evidence must show that the "points of view of the parties... [are] clearly opposed" as concerns the question brought before the Court (see paragraph 37 above). As earlier decisions of the Court show, in which the question of the existence of a dispute was being examined, a dispute exists when it is demonstrated, on the basis of evidence, that the defendant was aware, or could not be not aware, that its views conflicted with the "positive opposition" of the applicant (Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, 17 March 2016, para. 73; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v . Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 70, at p. 99, para. 61, pp. 109-110, para. 87, p. 117, para. 104).
In principle, the date when the existence of a dispute must be determined is the date when the application is filed (Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea, (Nicaragua v . Colombia), Preliminary Objections, Judgment, 17 March 2016, para. 52; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v . Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30). When it says, in article 38, paragraph 1, of the Statute of the Court, that its mission is "to decide in accordance with international law such disputes as are submitted to it", it is indeed disputes existing at the date when they are submitted which are intended.
The parties' conduct after the application has been submitted (or the application proper) may be relevant from various aspects and, in particular, in order to confirm that a dispute exists (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, at p. 100, para. 22 and at p. 104, para. 32), to clarify what its subject is (Obligation to negotiate access to the Pacific Ocean (Bolivia v . Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26), or to determine whether it has disappeared at the moment when the Court decides (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, at pp. 270271, para. 55; Nuclear Tests (New Zealand v . France), Judgment, I.C.J. Reports 1974, p. 457, at p. 476, para. 58).
However, neither the application nor the subsequent conduct of the parties or declarations made by them during the case could enable the Court to conclude that it was satisfied that the condition of the existence of a dispute had been met in this case (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 444-445, paras 53-55). If the Court had jurisdiction with regard to disputes resulting from exchanges which had taken place during the proceedings before it, the respondent would be deprived of the possibility to react, before the case was introduced, to the claim concerning its behaviour. Moreover, the rule whereby the dispute must in principle already exist at the date when the application is filed would be rendered devoid of substance.
- The content of the letters of 3 and 6 August 2004 concerning the illegal seizure did not receive any response; and
- the letter of 2 December 2000, authorizing Mr Carreyó to act on behalf of Panama and the M/V "Norstar" all concerned the actions associated with the seizure of the vessel and in particular the negotiations for the request for reparations. This letter goes further than the conduct of prompt release proceedings.
"[T]he order for seizure issued by the Italian judicial authorities, together with a request for its enforcement addressed to the Spanish authorities, did not amount per se to a breach of the Convention" (Reply, para. 64).
"...the order for seizure of the Italian judiciary could only be deemed as conduct 'preparatory' to an internationally wrongful act... " (Reply, para. 67; see PV1, p. 25, ll. 29-33).
"...the actual conduct complained of by Panama is not the order for seizure, but the material arrest and detention of the M/V Norstar, which cannot be attributable to Italy, neither as a matter of fact, nor of law" (Reply, para. 68; see PV1, p. 24, ll. 23-26 and p. 25, ll. 35 - p. 26, l. 10; see also PV5, p. 7, ll. 4-9).
"[T]he Agent from Panama purported to reframe its claim, when it stated that 'Panama contends that the conduct complained of was the order for the seizure'" (PV5, p. 4, ll. 30-34).
"Since the order for seizure was not enforced by the Italian authorities, nor was it enforced in Italy, the Panamanian Claim has been addressed to the wrong respondent, both as a matter of fact and law, irrespective of its merits" (Reply, para. 70).
- "[E]ven though the order for seizure of the M/V Norstar has been issued by an Italian Public Prosecutor, the actual arrest and detention of the vessel has not been executed by Italian enforcement Officials, but by the Spanish Authorities. The Applicant acknowledged this matter of fact in its letter dated 17 April 2010 to the Italian Ministry of Foreign Affairs, in which it stressed that the vessel was still being kept in Palma de Mallorca" (Preliminary Objections, para. 21). Panama's "proposition is oblivious to the basic international rules of the law of State responsibility regarding the attribution of an internationally wrongful act, on the one hand, and the 'independent responsibility principle', on the other" (Reply, para. 74).
On attribution of conduct :
"[T]the conduct of the authorities of Spain could be attributed to Italy only if they could be deemed to have acted as 'organs put at the disposal' of Italy under Article 6 ASR. The circumstances complained of in the Application show that this is not the case" (Reply, para. 76; see PV1, p. 27, ll. 31-33).
"[T]he 1959 Strasbourg Convention gave to the Spanish authorities ample margin to refuse the Italian letter rogatory" (PV5, p. 5, ll. 5-9).
On the 1959 Strasbourg Convention : see PV1, p. 28, l. 34 - p. 29, l. 33.
On the "independent responsibility principle" :
"The principle in question is particularly germane to the circumstances of the present case, where the enforcement of the arrest of the vessel was carried out by a State other than the Respondent State upon request by the latter... " (Reply, para. 81; see PV1, p. 26, ll. 12-32).
"Italy admits that the order for the seizure of the M/V Norstar was issued by an Italian Public Prosecutor" (Observations, para. 10).
"Italy is still responsible for issuing such an order and, according to article 1 of the ASR, every internationally wrongful act of a State entails responsibility" (PV3, p. 27, ll. 6-7).
"...by accepting the Italian request for the execution of its arrest order, it is evident that the Spanish authorities were indeed put at the disposal of Italy" (PV3, p. 27, ll. 37-38).
"Without the order of Italy, Spain would never have carried out the seizure. Italy therefore merely used Spain as its executive body" (PV6, p. 4, ll. 4244; see also PV6, p. 5, ll. 1-34; PV 6, p. 5, l. 46 - p. 6, l. 3; PV6, p. 6, ll. 4448).
On the "indispensable third party" principle :
"[I]t is Spain's arrest and detention of the vessel that constitutes the very subject matter of the judgment that Panama asked this Tribunal to render" (PV1, p. 31, ll. 35-36; see also PV1, p. 31, ll. 45 - p. 32, l. 9).
"The principle in question prevents the exercise of jurisdiction because the assessment of the legality of the order for seizure issued by Italy could not be made irrespective of the assessment of the legality of the arrest of the vessel in question by Spain, but the reverse is equally true, namely, this Tribunal's jurisdiction would likewise be prevented, by way of corollary, because the assessment of the legality of the order for seizure by Italy would a fortiori imply an assessment of the legality of its enforcement by Spain" (PV1, p. 32, ll. 11-17; see also Preliminary Objections, para. 22).
With reference to the Monetary Gold Case, Panama's claim should be dismissed on the basis of the "indispensable party principle" (Reply, para. 87; see Preliminary Objections, para. 23).
With reference to the Certain Phosphate Lands in Nauru Case, "[t]he facts of the instant case fully satisfy such a restrictive approach, in so far as the relationship between the order for seizure and its enforcement is, indeed, not one of a purely temporal succession, but also of logical connection" (Reply, para. 89).
With reference to the East Timor Case, "[s]hould the Tribunal entertain its jurisdiction over the conduct of Italy about which Panama complains, it would be inevitably assessing whether Spain had the right to materially arrest and detain the M/V Norstar " (Reply, para. 91).
"Italy is responsible for its actions, since Italy based its request for judicial assistance on an alleged offence which was not actually committed. The claim is, therefore, not about the rights or obligations of Spain, but only about the obligations of Italy" (PV6, p. 7, ll. 6-9).
"Spain has not been mentioned, summoned, cited, or even referred to in this case either as defendant or as a third party, nor has it shown any interest in participating through any of the possible methods accepted by the Convention" (Observations, para. 15).
On the "indispensable third party" principle :
"Italy's liability can be determined without Spain's involvement" (PV3, p. 4, ll. 9-10).
With reference to the Monetary Gold Case, "this case is fundamentally different and, thus, the Italian argument based on the Indispensable Third Party doctrine is misleading" (Observations, para. 12; see also paras 10, 11).
"The interests of Spain are not an issue in this case, which is why it was not summoned to the proceedings as a Respondent. Thus, the Monetary Gold Case, cited by Italy as support for its argument, is of a different nature and is based on different reasoning" (Observations, para. 13).
"The interests of Spain would not be affected by the judgment, much less constitute the 'very subject matter of the decision'" (PV3, p. 4, ll. 30-32).
"...Spain has the opportunity to intervene if it so desires" (Observations, para. 12).
"Panama's assertion that Italy's liability in this case can be determined regardless of Spain's involvement was supported by a similar case", referring to the Certain Phosphate Lands in Nauru case (Observations, para. 14).
"...no 'exchange of views' with Italy has been pursued by Panama in any meaningful and legally appropriate manner with a view to reaching the settlement of the putative dispute by negotiation, or through other means of dispute resolution, under Article 283, paragraph 1, UNCLOS" (Preliminary Objections, para. 25, see para. 19; see Reply, para. 50).
On communications :
"...the contacts between Panama and Italy... cannot qualify as an 'exchange of views', nor as genuine attempts to pursue it, under Article 283 UNCLOS. For a communication to be considered relevant for the purposes of an 'exchange of views' it should be made by State representatives.... this is not the case in the instant proceedings" (Reply, para. 51, see also para. 52; see Preliminary Objections, paras 19 and 26).
"Just as [Mr Carreyó] was not entitled to act on behalf of the Panamanian State in order to create a disagreement between the two States, he was also unable himself to proceed to an intergovernmental exchange of views with Italy on behalf of Panama" (PV1, p. 21, ll. 34-37).
"...the lack of consistency and continuity of Mr Carreyó's communications renders such communications incapable of meeting the requirement in question" (Reply, para. 56; see PV1, p. 23, ll. 28-31).
"...the only communication in which reference was made to Article 283 is the letter sent by Mr Carreyó on his headed paper to Italy of 3/6 August 2004, i.e., before Italy was ever notified that the sender in question was vested with any governmental capacity" (Reply, para. 57). "[I]n that correspondence there is no real proposal for consultation providing a sufficient indication of the outlines of the alleged dispute having a genuine link with the Convention" (PV1, p. 22, ll.37-39).
On specific communications : see Preliminary Objections, paras 10, 13, 14 and 16; see Reply, paras 12 to 26; see also PV1, p. 23, ll. 6-36.
"...Italy has omitted relevant facts regarding its and Panama's compliance with Article 283, as well as significant points related to the case itself" (Observations, para. 5).
"Italy has neglected its duty to proceed with an exchange of views and, by doing so, has also prevented Panama from fulfilling its corresponding duty to proceed appropriately" (PV6, p. 4, ll. 25-27).
On communications :
"Panama undertook communication with Italy in order to resolve the matter by mutually determining the appropriate amount of damages due for the unlawful arrest of the M/V Norstar " (Observations, para. 18; PV3, p. 5, ll. 1214).
"Panama avers that it has only used judicial proceedings, and that its communications are not to be taken as diplomatic actions, but only as evidence of compliance with paragraph 1 of article 283, as a true and good-faith intention to engage in negotiations before resorting to judicial proceedings" (PV4, p. 1, ll. 38-41).
"The clear objective of all of the communications sent by Panama that are referred to above was to obtain feedback from Italy about the Panamanian position on the subject matter, and therefore, the feasibility of a negotiation and/or settlement. There have been seven (7) attempts made by Panama with the purpose of understanding the position of Italy concerning this issue, yet all of them have been unsuccessful. Given its silence, it is unclear how Italy intended to comply with Article 283. Italy, by completely ignoring all of the communications sent throughout the years, has effectively impeded any productive exchange of views" (Observations, para. 33; PV3, p. 7, ll. 3743).
"...by failing to answer any of the communications of Panama, Italy has been the party which has precluded this exchange" (Observations, para. 17; see paras 33 and 77; PV3, p. 4, ll. 47-48).
"The exchange of views set out by Article 283 has been undermined by the silence of Italy, which has hindered, rather than promoted, Panama's attempts to settle this dispute with Italy by mutual agreement" (Observations, para. 44; PV3, p. 8, l. 49 - p. 9, l. 2).
"...the time passed between the first communication sent to Italy and the submission of the application shows that Panama did not submit the case precipitously to the tribunal" (Observations, para. 34; PV3, p. 7, ll. 48-49).
On power of attorney :
"If an Agent is empowered for incidental proceedings, such as a prompt release procedure, he should also be considered qualified to exchange views" (PV3, p. 21, ll. 1-2; see also PV4, p. 13, ll. 32-33; PV4, p. 14, ll. 48).
On due process of law :
"The absence of such information undermines Panama's right to defence and violates the Due Process of Law Principle" (Observations, para. 18).
"...the Italian Republic has not complied with the rule of Due Process of Law" (Observations, "Petitum", p. 17).
On communication dated 3/6 August 2004 : see Observations, paras 25 to 27; PV6, p. 1, l. 43 - p. 2, l. 6; PV6, p. 3, ll. 43-46.
On application of the principle of venire contra factum proprium: see Observations, para. 44.
On specific communications : see Observations, paras 19 to 32; PV3, p. 5, l. 32 - p. 7, l. 43.
On case law : see Observations, paras 35 to 39.
before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by means of diplomatic negotiations (The Mavrommatis Palestine Concessions, Judgment no. 2, 1924, C.P.I.J. Series A no. 2, p. 15).
The true value of this objection will readily be seen if it be remembered that the question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a dead lock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation.
But it is equally true that if the diplomatic negotiations between the Governments commence at a point where the previous discussions left off, it may well happen that the nature of the latter was such as to render superfluous renewed discussion of the opposing contentions in which the dispute originated. No general and absolute rule can be laid down in this respect. It is a matter for consideration in each case (South West Africa Cases, Preliminary Objections, Judgment I.C.J. Reports 1962, pp. 345346).
The Turkish Government's attitude might thus be interpreted as suggesting that the Court ought not to proceed with the case while the parties continue to negotiate and that the existence of active negotiations in progress constitutes an impediment to the Court's exercise of jurisdiction in the present case. The Court is unable to share this view. Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes. The jurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu. Several cases, the most recent being that concerning the Trial of Pakistani Prisoners of War (I.C.J. Reports 1973, p. 347), show that judicial proceedings may be discontinued when such negotiations result in the settlement of the dispute. Consequently, the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function (I.C.J. Reports 1978, p. 12, para. 29; see also Military and Paramilitary Activities in and against Nicaragua, Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 1984, p. 440, paras 106-108; Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 303).
On the relevant "locus" : "...'locus' does not refer to the place where the bunkering activities causing the order of seizure were conducted. 'Locus' refers precisely to the place where the alleged internationally wrongful conduct, namely the seizure itself, took place. That place is the Spanish internal waters" (PV5, p. 7, ll. 12-15).
On diplomatic protection : "[A]gainst the background of the factual circumstances of the present case, Panama's Claim predominantly, if not exclusively, pertains to alleged 'indirect' violations and that, therefore, Panama's Claim is of an espousal nature" (Reply, para. 96; see paras 106 and 113; see also PV1, p. 34, ll. 6-11; PV2, p. 1, ll. 19-22; PV5, p. 7, ll. 3750).
With reference to article 18 of the ILC Articles on Diplomatic Protection, "[t]he claims put forward by the State of nationality or by the flag State under such circumstances are equally 'indirect' in nature. Accordingly, when a claim is lodged by the flag State, preponderantly, if not exclusively, to seek redress for the individuals involved in the operation of the ship, the local remedies rule applies on the same grounds as in a diplomatic protection case" (Reply, para. 98).
On article 14 of the ILC Articles on Diplomatic Protection: see also PV2, p. 1, l. 33 - p. 2, l. 7.
"It clearly emerges from each and all of the communications sent by Mr Carreyó, or Panama, on the matter at issue, that the nature of the Claim and the remedy sought by Panama concern preponderantly, if not exclusively, the monetary interests of the owner of M/V Norstar " (Reply, para. 107; see PV2, p. 4, ll. 27-31).
On the content of communications : see PV2, p. 4, l. 33 - p.6, l. 27.
On the content of notes verbales : see PV2, p. 6, l. 46 - p. 8, l. 2.
"In fact, Mr Carreyó was defending the financial interests of the M/V Norstar's owner, acting in his capacity as a private lawyer specializing in commercial and maritime law" (PV2, p. 3, ll. 31-33).
On the use of Mr Carreyó's personal headed paper : see PV2, p. 3, ll. 3537;
On the apostille under the Hague Convention of 1961 : see PV2, p. 3, l. 39 - p. 4, l. 4.
"The preponderance of the indirect character of the injury invoked by Panama, not only emerges from the claims for damages in question, but is also corroborated by the manifest irrelevance of the random UNCLOS provisions relied upon in the Application as the basis for the putative direct violation of Panama's rights" (Reply, para. 111).
"Panama has explicitly recognised the espousal character of its Claim in its Observations..." (Reply, para. 110).
With reference to the M/V "SAIGA" case : "Italy fully acknowledges the principle authoritatively stated by this Tribunal" (Reply, para. 96).
On case law concerning direct / indirect injury and "preponderance test" : see Reply, paras 99 to 106;
On M/V "Virginia" : see PV2, p. 1, l. 24-31 and PV5, p. 8, l. 45 - p. 9, l. 4;
On M/V "SAIGA" : see PV2, p. 2, l. 20-28 and PV5, p. 8, ll. 10-43.
On nationality of the vessel and persons associated with the vessel : "... neither the M/V Norstar was owned, fitted out, or rented, by a natural or legal person of Panamanian nationality, nor the accused in the Italian criminal proceedings were Panamanian nationals, and since the victims of the alleged Italian internationally wrongful conduct have not exhausted the local remedies available under the Italian legal system with regard to the claim for compensation, Italy respectfully maintains that this Tribunal should declare the claim by Panama inadmissible" (Preliminary Objections, para. 29; see also PV2, p. 2, l. 33 - p. 3, l. 13 on a letter from the owner of the M/V Norstar of 2 February 1999).
"[T]his claim is not one of diplomatic protection, nor is it espousal or based on indirect violations. Rather, Panama contends that the present case is one involving a direct violation of its rights accorded by the Convention and, as a consequence of those violations, damages inflicted must be compensated" (PV4, p. 3, ll. 36-39).
"Panama has the right and duty to protect its registered vessels and use the peaceful means to assure that other members of the international community respect its rights. There should not be any question that without this claim by Panama, the owner would not have access to this Tribunal" (Observations, para. 58; PV3, p. 29, ll. 13-20).
"[W]hen States bring cases either 'by resorting to diplomatic action or to international judicial proceedings', in reality they are asserting their own rights" (PV3, p. 28, ll. 48-50; see also PV3, p. 29, ll. 31-33).
On diplomatic protection :
"... the exertion of diplomatic protection and the institution of judicial proceedings on behalf of non-nationals are discretionary rights of any State. Panama submits that it is entitled to exercise diplomatic protection by diplomatic action or by international judicial proceedings not limited to formal presentation before international tribunals" (Observations, para. 54, see para. 80; PV3, p. 9, l. 39-42; see also PV6, p.9, ll. 29-34).
"[T]he Rules of the Tribunal do not prohibit a party being represented by a 'private lawyer'" (PV6, p. 2, ll. 22-23; on the use of a personal letterhead: see PV6, p. 2, ll. 23-26; on the apostille under the 1961 Hague Convention: see PV6, p. 3, ll. 12-23).
On nationality of the vessel and persons associated with the vessel :
"The fact that the victims of the wrongful conduct of Italy are not nationals of Panama does not disqualify this claim because it is based on the deprivation of the property of a juridical person having a vessel registered in Panama" (Observations, para. 58).
"[I]f Italy had taken into account the nationality of the M/V Norstar, the essence of what this claim is about, it would unconditionally have to accept that she holds Panamanian nationality. Even its own competent authorities have granted this. The fact that the M/V Norstar is a national subject of Panama is precisely the reason that Panama has brought this case to this Tribunal" (Observations, para. 56; PV3, p. 9, l. 44 - p. 10, l. 4).
With reference to the M/V "SAIGA" Case : "the Convention considers a ship as a unit... The nationalities of these persons [persons involved or interested in the vessels' operation] are not relevant....a flag State is entitled to present claims for damages on behalf of natural and juridical persons who are not its own nationals if the above conditions apply" (Observations, para. 58).
On M/V "SAIGA" : see also PV3, p. 10, ll. 6-11; PV4, p. 2, l. 19 - p. 3, l. 27; PV6, p. 9, ll. 18-23.
On the M/V "Virginia G" case : see PV4, p. 3, l. 46 - p. 4, l. 45.
On fees and taxes : "...due to the wrongful act of Italy, Panama has not received the vessel registration fees, taxes, and duties owed by the M/V Norstar since its improper seizure. Therefore, Panama is obligated to act on the M/V Norstar 's behalf" (Observations, para. 57).
"Panama could validly bring the present claim only if the alleged internationally wrongful act complained of in the Application had affected its own nationals, and if they had exhausted the local remedies available in the legal order of the alleged wrongdoing State. The facts of the case plainly show that neither of the two requirements has been met" (Preliminary Objections, para. 28).
"Panama's Claim is clearly one predominantly, if not exclusively, of an espousal nature. Accordingly, the local remedies rule applies to the instant Claim" (Reply, para. 115; see PV 2, p. 8, ll. 29-31).
On the exhaustion of local remedies as a rule of international law : see Reply, para. 116; see also PV2, p. 15, l. 44 - p. 16, l. 9.
On article 295 of the Convention : see Reply, para. 117.
On exceptions to the rule of exhaustion of local remedies : With reference to article 15 of the ILC Draft Articles on Diplomatic Protection, "[n]one of these exceptions applies in the present case" (Reply, para. 120; see PV2, p. 15, l. 44 - p. 16, l. 9).
On proceedings before national courts : "...the Tribunal of Savona acquitted all the accused of all charges and ordered the lifting of the seizure of the M/V Norstar on 13 March 2003 and transmitted this decision to the Spanish Authorities on 18 March 2003" (Reply, para. 120).
"[O]n 18 August 2003 the public prosecutor at the Court of Savona appealed against that judgment. However, on 25 October 2005 the Court of Appeal of Genoa upheld the judgment given by the court of first instance" (PV2, p. 12, ll.6-8). "[T]he appeal certainly did not concern the seizure of the M/V Norstar because the Italian public prosecutor did not request the Court of Appeal of Genoa to suspend the order to return the vessel" (PV2, p. 12, ll. 22-24; see also PV5, p. 7, ll. 30-35).
On legal remedies available to the ship-owner : "Those companies [involved in the use of the M/V Norstar ] had a five-year time limit to file a claim for the damages allegedly caused by the order of seizure before Italian domestic courts. This time limit expired on 9 December 2010, no action on the part of the ship-owner having been instigated" (Reply, para. 121; see PV2, p. 9, ll. 8-13; PV2, p. 10, ll. 7-10; on remedies available before the judgment of the Court of Savona of 18 March 2003 : PV2, p. 9, l. 26 - p. 11, l. 34; on remedies available after that judgment : PV2, p. 16, l. 16 - p. 18, l. 23).
"[T]he exhaustion of local remedies rule does not apply in the present case since the actions of Italy against the M/V Norstar, a ship flying the Panamanian flag, violated the right of Panama, as a flag State under the Convention, to have its vessels enjoy the freedom of navigation and other internationally lawful uses of the sea related to that freedom, as set out in Articles 33, 58, 73(3) and (4), 87, 111, and 300 among others" (Observations, para. 71, see para. 80; PV3, p. 12, ll. 45-48; PV6, p. 7, l. 22 - p. 8, l. 5).
On rights claimed by Panama :
"[They] are not based on obligations concerning the treatment of aliens. Instead, they are based on the treatment of a Panamanian subject, whose rights... were violated" (Observations, para. 73; PV3, p. 13, ll. 24-28).
On exceptions to the rule of exhaustion of local remedies :
On the jurisdictional connection :
With reference to M/V "SAIGA" Case : "the exhaustion of local remedies rule does not apply in the absence of a 'jurisdictional connection'" (Observations, para. 72; see also para. 74). "Since the facts of the case show that the M/V Norstar was outside its territorial waters, Italy was not entitled to apply its customs rules to its operation because there was no jurisdictional connection..." (Observations, para. 74; PV3, p. 13, ll. 35-38).
"Whether local remedies apply to this case... depends on the locus where Italy determined the M/V Norstar was carrying out its bunkering activity" (Observations, para. 74; PV3, p. 13, ll. 30-33).
On proceedings before national courts :
"[T]he public prosecutor appealed the first-instance decision of the Savona Court, which made impossible the compliance of the Savona Court's ruling on the return of the vessel" (PV4, p. 11, ll. 5-7).
"Italy's compliance with the judgment by its own authorities is still unrealized" (PV4, p. 11, ll. 35-36).
"In any event, the conclusion of the court case in Italy has exhausted the local remedies, so this is no longer an issue. Thus, the 'exhaustion of local remedies' argument is moot" (Observations, para. 74).
"While such a claim is preponderantly, if not exclusively, of a diplomatic protection character, the requirements for its exercise - i.e.... that of the exhaustion of local remedies - have not been met".
"Panama could validly bring the present claim only if the alleged internationally wrongful act complained of in the Application had affected its own nationals, and if they had exhausted the local remedies available in the legal order of the alleged wrongdoing State. The facts of the case plainly show that neither of the two requirements has been met".
"Panama's Claim is clearly one predominantly, if not exclusively, of an espousal nature. Accordingly, the local remedies rule applies to the instant Claim".
- "[T]he Claim brought by Panama is... inadmissible due to the operation of the principles of acquiescence, extinctive prescription and estoppel" (Reply, para. 123, see para. 175).
"[T]he purpose of extinctive prescription in international law is not just about avoiding prejudice to a respondent State.... the purpose of extinctive prescription and acquiescence is also providing certainty" (PV5, p. 10, ll. 10-13).
- "[T]his case is admissible... [Panama] is not prevented from doing so by a time bar, by an estoppel... Panama is not time barred, because its communications with Italy have extended the time limit for bringing this case and, thus, voided any prescription regarding it. Since Italy has not relied on any pertinent statement of Panama, the requirement of estoppel has not been met" (Observations, para. 5).
"[T]he applicability of these principles [time bar, acquiescence, and estoppel] is dependent on the particular circumstances of this case" (PV6, p. 15, ll. 12-13).
"Even though the application of the above principles in international law might be accepted generally, which, however, is not the case, just to mention the European Convention on Human Rights, it is important to point out that since there are no fixed rules based on prerequisites, the criteria given by Italy as to 'the guarantee, the certainty of rights and the predictability of their exercise' are of no relevance on a stand-alone basis" (PV6, p. 14, ll. 28-33).
"There is no procedural limitation of action under international law. Nor is a claim barred or estopped after a particular lapse of time, say 20 or 30 years" (PV6, p. 14, ll. 40-41).
"[C]ontrary to Italy's allegations, Panama's conduct and activities cannot be considered as waiving its rights. Even more, Italy could not reasonably rely on that conduct and conclude that Panama would not pursue its claims any more" (PV6, p. 16, ll. 24-27).
On circumstances extending Panama's efforts to litigate: PV6, p. 15, l. 26 - p. 16, l. 22.
"[T]he various communications sent by Mr Carreyó were not capable of asserting Panama's Claim vis a vis Italy. Italy wishes to refer the Tribunal to those paragraphs... to demonstrate the acquiescence of Panama with respect to the Claim that it has now brought against Italy before this Tribunal" (Reply, para. 126).
"Panama has not validly asserted its claim" (PV2, p. 20, l. 16). "[T]he consequence of this is that Panama is making its claim for the first time before this Tribunal and is doing so more than 18 years from the date when the event complained of by Panama allegedly occurred.... [I]t takes much less than 18 years of inactivity to bar a State from bringing a claim due to acquiescence or extinctive prescription" (PV2, p. 20, ll. 21-28).
On note verbale AJ 97 of 7 January 2005 :
"[T]his is the last formal communication sent by Panama to Italy on 7 January 2005. If this Tribunal should disagree with Italy and hold that Panama's claim has been validly asserted by Panama, but should still agree with Italy that the last communication from Mr Carreyó does not validly make Panama's claim, then 7 January 2005 is the date from which Panama's inactivity as regards the pursuit of its claim starts. Under this scenario Panama would have remained silent for ten years and 11 months before bringing its claim before this Tribunal" (PV2, p. 20, l. 42 - p. 21, l. 5).
On the communication of 17 April 2010 and institution of proceedings before the Tribunal :
"[A]fter the communication of 17 April 2010,... Panama stopped communicating with Italy for 5 years and 7 months, before bringing a claim against Italy ex abrupto " (Reply, para. 128; see PV2, p. 21, ll. 7-12: "five years and eight months").
"Panama failed to assert its claim for a long period of time... 5 years and 7 months is a very long period of time to assert a claim for compensation of damages... " (Reply, para. 129; see PV2, p. 21, l. 23 - p. 22, l. 4).
Panama's failure to do so, for an unreasonably long period of time, means that after 5 years and 7 months, 'the respondent State could legitimately expect that the claim would no longer be asserted' (Reply, para. 131; see PV2, p. 22, ll. 16-22; PV5, p. 10, ll. 39-41).
On the doctrine of acquiescence : see Reply, para. 124; PV2, p. 19, l. 46 -p. 20, l. 3;
On the requirements for the application of acquiescence : see Reply, para. 125; PV2, p. 20, ll. 5-11.
"[T]he present case does not meet the requirements for acquiescence" (PV6, p. 12, ll. 13-14).
"Panama has sent Italy numerous letters claiming the existence of a wrongful act. Panama further made it clear in its communication that it had suffered substantial damages and that Italy is obligated to pay damages. Panama further announced that proceedings would be initiated before the Tribunal if the parties were unable to reach a settlement" (PV6, p. 11, ll. 2024).
"During all of this time, Italy did not return the vessel to the owner" (PV6, p. 11, ll. 29-30).
"Italy itself delayed the settlement of the dispute by failing to respond to Panama's letter while promising a response which was never fulfilled" (PV6, p. 12, ll. 11-12).
On extinctive prescription as a general principle :
"[A] claim that is made, but that is not pursued, and that gives the impression to the respondent of having been abandoned, is not admissible" (PV5, p. 9, ll. 43-45).
"Extinctive prescription is common to virtually all jurisdictions and the principle serves the fundamental purpose of guaranteeing the certainty of rights and the predictability of their exercise. A debtor cannot be held liable indefinitely, and creditors have to claim their rights within a reasonable time" (Preliminary Objections, para. 30).
"[T]he passage of time is a bar to the admissibility of a claim, and... this constitutes a general principle of international law... The legal systems of Panama and Italy are no exception in this regard. That prescription is a general principle of law is also not contested by Panama" (Reply, para. 141; see also PV2, p. 23, ll. 17-18).
"[I]n accordance with article 293, paragraph 1, [of the Convention], extinctive prescription is a rule of international law that the Tribunal must apply if its conditions are met" (PV5, p. 9, ll. 31-32).
On case law : see Reply, paras 135 to 140.
On the resolution of the Institut de Droit International of 1925 : PV2, p. 23, ll. 20-27.
On circumstances of the case :
With reference to Certain Phosphate Lands in Nauru, "[t]he decision on whether Panama's Claim is extinct by prescription as a matter of international law is therefore a matter for the assessment of this Tribunal, in light of the circumstances of the case" (Reply, para. 143).
On the conduct of the Parties :
"[I]n order to be able to interrupt prescription, a claim must be validly asserted by an individual duly authorised to do so.. Mr Carreyó did not possess authority in this regard" (Reply, para. 144).
"[T]he communications from Mr Carreyó were not able to assert Panama's claim, let alone 'stop the clock...' [I]n any event, the last communication received from Mr Carreyó dates back to 17 April 2010, and the last note verbale from Panama to 7 January 2005" (PV2, p. 25, ll. 32-35). With reference to the Commentary to the ILC Articles on State Responsibility, "the conduct of a claimant State resulting in unreasonable delay could determine the extinction of the claim" (Reply, para. 147). "[T]here have been no acts by the Italian Government that admit the existence of a dispute with Panama, no negotiations have occurred between the two States with respect to the dispute, and no agreement to submit the dispute to any judicial forum has ever been discussed, much less concluded, between the Parties" (Reply, para. 153).
On Italy's and Panama's laws on extinctive prescription :
"[R]eference to domestic statutes of limitation is a method routinely employed by international tribunals in deciding on the international prescription of claims" (PV2, p. 25, ll. 8-10).
"Panama's right to claim any damage... is prescribed as a matter of Italian law" (Reply, para. 154; see PV2, p. 24, ll. 20-22).
"The law of Panama provides even stricter terms of extinctive prescription" (Reply, para. 156; see PV2, p. 24, ll. 22-27).
"[T]he specific circumstances of this case require that the Panamanian and Italian domestic statutes of limitation should apply in the present case and bar it internationally; in the alternative... the time prescribed under the domestic statutes of limitation of Italy and Panama show that Panama has acted with unreasonable delay in pursuing its claim, and that its claim is hence barred" (Reply, para. 157).
"Panama's claim would be extinct not just as a matter of the laws of Panama and Italy, but also as a matter of the laws of the vast majority of other jurisdictions" (PV2, p. 25, ll. 16-19).
On the alleged prejudice to Italy:
"[D]amages suffered as a consequence of the allegedly illegal conduct of Italy have been accruing due to the lapse of time. However, had Panama pursued its claim diligently, including by means of the domestic mechanisms of redress available to Panama in Italy, the prejudice that derives to Italy from Panama's pursuit of the claim would have been significantly less" (Reply, para. 167; see PV2, p. 27, ll. 3-9).
"[I]f a claim is made, there is no reason to argue validly that delay is affecting the claim" (PV4, p. 5, ll. 50-51).
On extinctive prescription :
"Although many jurisdictions have established fixed rules regarding the implementation of prescription, this is not the case with international public law. Specifically, there is no article in the UNCLOS regulations that delineates a time restriction regarding the bringing of cases. Thus.... in the absence of a clearly stated definition of legal deadlines, the Time Bar objection does not hold" (Observations, para. 80; PV3, p. 14, ll. 19-23).
"Under the heading 'Extinctive Prescription', Italy has included new objections related to 'acquiescent conduct of the claimant'" (Request for ruling, para. 28). "...since Italy did not include any of the above identified issues in its Preliminary Objections, all of them must be rejected due to its failure to timely address these concerns" (Request for ruling, para. 30).
On case law :
With reference to Certain Phosphate Lands in Nauru, "the International Court of Justice rejected the objection of Australia that Nauru had made the claim 20 years after having become independent" (Observations, para. 61).
On conduct of the Parties :
"The fact that Italy now admits that, as early as 2001, Panama sought redress and the prompt release of the M/V Norstar, signifies that the Italian Government took notice of the claim and has had ample opportunity to prepare its defence" (Observations, para. 62; PV3, p. 11, ll. 16-20).
"The judicial proceedings in Italy also negate its Time Bar claim" (Observations, para. 63; PV3, p. 11, ll. 22-32).
"The fact that the M/V Norstar, the object of these proceedings, has not been returned to its owner despite the order issued by the Italian jurisdictional authorities signifies that Italy's compliance with the judgment of its own authorities is still unrealized" (Observations, para. 65; PV3, p. 11, ll. 34-45).
"To argue now that this claim is Time Barred denies all of Panama's efforts to obtain redress" (Observations, para. 66; PV3, p. 11, l. 47-50).
On alleged prejudice to Italy :
"Italy itself is responsible for the accrual of damages that have increased over time" (PV6, p. 12, l. 30-31).
"Italy has been aware of the fact that the damages have been continually increasing. However, since Italy has preferred not to respond to Panama's compensation claims, it can no longer maintain that it is now suffering from unjust prejudice" (PV6, p. 12, ll. 39-42).
On estoppel in international law : see Reply, paras 169 and 170.
On elements of estoppel :
"Italy has indeed relied on certain unequivocal representations previously made by Panama, and would be prejudiced if Panama were now authorised to rely on those representations against Italy" (Reply, para.171).
"Between 2001 and 2004, Mr Carreyó, had expressed his intention to apply for the prompt release of M/V Norstar under Article 292 UNCLOS. However, no procedural action was eventually taken by Panama to that effect, while the M/V Norstar had remained seized in Spain" (Preliminary Objections, para. 32).
"The communication by Mr Carreyó laid out a very precise and unequivocal timeframe with respect to Panama's intentions. Italy contends that such a clear declaration by Panama comports with the features of declarations that are relevant for estoppel..." (Reply, para. 172).
"After 31 August 2004, Italy has relied in good faith on the representation made in the two communications indicated above and in particular that Panama was supposed to bring prompt release proceedings within a very specific time frame" (Reply, para. 173).
On estoppel in international law : see Observations, para. 67; PV6, p. 13, ll. 2-7.
On elements of estoppel :
"Although Panama did not bring a petition to the Tribunal for the prompt release of M/V Norstar under Article 292, it was not obligated to do so according to the rights that any State has when it decides whether to bring a case" (Observations, para. 68; PV3, p. 12, ll. 20-21).
"Panama has never stated that it would not bring a claim for damages before this Tribunal.... Italy... has not relied on nor reacted to any statement made by Panama" (Observations, para. 69; PV3, p. 12, ll. 2125).
"...Italy has failed to present any statement in which Panama declared that it would never bring a claim for damages before this Tribunal. Italy also failed to explain in what way it has relied on any statement of Panama or in what way it has changed its position as a consequence. In light of this omission, the objection of Italy regarding estoppel should be rejected" (Observations, para. 69; PV3, p. 14, ll. 29-34).
"If, between 2000 and 2004, Panama only raised the possibility of bringing a petition for Prompt Release to this Tribunal, this was because the Italian judicial authorities had not yet issued a final judgment and, therefore, Panama did not consider local remedies to have been exhausted.... Panama also declined to bring a Prompt Release petition because the economic situation of the shipowner did not allow him to post the bond to release the vessel from arrest" (Observations, para. 70; PV3, p. 12, ll. 2735).
"Taking the entire correspondence from Panama to Italy into consideration, it is clear that Panama has in no way given the impression that it would waive its compensation claim for damages or neglect to initiate proceedings before the Tribunal concerning this matter" (PV6, p. 13, ll. 30-33).
the questions raised by the first of these objections and those arising out of the appeal as set forth in the Hungarian Government's submissions on the merits are too intimately related and too closely interconnected for the Court to be able to adjudicate upon the former without prejudging the latter and because the further proceedings on the merits.will place the Court in a better position to adjudicate with a full knowledge of the facts upon the second objection (P.C.I.J., Series A/B, No. 66, p. 9).
may be regarded.as a.defence on the merits, or at any rate as being founded on arguments which might be employed for the purposes of that defence. Consequently, the Court might be in danger, were it to adjudicate now upon the plea to the jurisdiction, of passing upon questions which appertain to the merits of the case, or of prejudging their solution.
The Court will give its decision upon it, and if need be, on the merits, in one and the same judgment.
The Court added, as a further objection, concerning the admissibility of the Application that
the facts and arguments adduced for or against the two objections are largely interconnected and even, in some respects, indistinguishable (P.C.I.J., Series A/B no. 67, pp. 23-24). Consequently, this objection was also joined to the merits.
at the present stage of the proceedings, a decision cannot be taken either as to the preliminary character of the objections or on the question whether they are well-founded; any such decision would raise questions of fact and law in regard to which the Parties are In several respects in disagreement and which are too closely linked to the merits for the Court to adjudicate upon them at the present stage.
It gave two further reasons, that is:
if it were now to pass upon these objections, the Court would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution and the Court may order the joinder of preliminary objections to the merits, whenever the interests of the good administration of justice require it (P.C.I.J. Series A/B no. 75, pp. 55-56).
The third Objection involves a number of closely interwoven strands of mixed law, fact and status, to a degree such that the Court could not pronounce upon it at this stage in full confidence that it was in possession of all the elements that might have a bearing on its decision. The existence of this situation received an implicit recognition from the Parties, by the extent to which, even at this stage, they went into questions of merits, in the course of their written and oral pleadings.
The Court continued:
As regards the fourth Preliminary Objection, the foregoing considerations apply a fortiori for the purpose of requiring it to be joined to the merits; for this is not a case where the allegation of failure to exhaust local remedies stands out as a clear-cut issue of a preliminary character that can be determined on its own. It is inextricably interwoven with the issues of denial of justice which constitute the major part of the merits... Accordingly, the Court decides to join the third and fourth Preliminary Objections to the merits. (I.C.J. Reports 1964, p. 46).
The Tribunal shall give its decision in the form of a judgment, by which it shall uphold the objection or reject it or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Tribunal rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.
The Court therefore concludes that the first preliminary objection made by the United Kingdom must be upheld. It follows that the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute. Consequently, it is not necessary for the Court to deal with the other objections raised by the United Kingdom.
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