Kaleidoscope

• Pegna, Olivia Lopes

Abstract

In December 1997 the International Court of Justice issued an order, for the first time, allowing a counter-claim. The Court found that the counter-claim submitted by Yugoslavia in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide was admissible under Article 80 para. 1 of the Rules. This raised the question whether a counter-claim may be presented in a case concerning the violation of an erga omnes obligation. The nature of counter-claims and their admissibility are analysed in this comment in relation to such cases. It is argued that counter-claims should be admitted before the Court only if built on defences on the merits and if strictly connected with the merits of the case in which they are raised. The author concludes that these conditions for the admissibility of a counter-claim cannot be fulfilled when the violation of an erga omnes obligation is alleged. The defensive character cannot be maintained as the Respondent State cannot invoke a previous violation of its rights committed by the Applicant in order to justify conduct that infringes an erga omnes obligation. Furthermore, connection in fact and in law is also lacking.