Abstract
The author discusses the effects of the res judicata rule as regards jurisdictional decisions of the International Court of Justice. He finds that there exists a special position of a judgment on preliminary objection in respect to both aspects of the res judicata rule - its binding force and finality. A perception of distinct relativity of a jurisdictional decision of the Court, expressing its interlocatory character pervades, in his opinion, the body of law regulating the Court's activity. Preliminary objections as such do not exhaust objections to the jurisdiction of the Court, as evidenced by non-preliminary objections to the jurisdiction of the Court giving rise to the application of the principle competence de la competence understood in the narrow sense. With regard to the binding force of a judgment on preliminary objections, it does not create legal obligations stricto sensu. The author finds that the relative character of jurisdictional decisions of the Court as compared with a judgment on the merits is justified on a number of grounds.
Highlights
The broad use of the expression res judicata could be attributed to confusion about the very quality of a judicial decision and its effects both subjective and objective
It is used to mean an issue decided by a court of law;[1] a judgment which cannot be refuted by ordinary legal vehicles;[2] and, a decision which is immutable and irrevocable.[3]
It could not be said that they are irrevocable as well, owing to the rule on revision embodied in Article 61 of the Statute, as an extraordinary legal vehicle, and due to some other judicial vehicles that exist in the law of the Court, such as the principle of compétence de la compétence in regard to jurisdictional issues as well as non-preliminary objections to the jurisdiction of the Court
Summary
The expression res judicata has more than one meaning. It is used to mean an issue decided by a court of law;[1] a judgment which cannot be refuted by ordinary legal vehicles;[2] and, a decision which is immutable and irrevocable.[3]. Each decision of the Court – be it judgment or order – is binding upon the parties, not in an identical way, but such characteristics of the decision of the Court are not necessarily followed by its finality The relationship between these two components of res judicata is not static and a priori defined, because it reflects the balancing power of the considerations underlying the procedural and substantive aspects of res judicata rule, respectively. As the effects of res judicata attach only to decisions brought lege artis, in accordance with the rules, procedural and substantive, of the law applied by the Court, it could be said that the exceptions to the finality of a Court judgment constitute a part of the substance of res judicata. The intrinsic quality of res judicata is, the end point in the development of the authority which is inherent in every judgment, the point in which jugement passe en force de la chose jugée, judgment becomes enforceable
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