What is next in The Gambia v Myanmar?

On 23 January 2020, the International Court of Justice (ICJ) in The Gambia v. Myanmar delivered its order upholding The Gambia's request for provisional measures. On the same day, the ICJ fixed 23 July 2020 and 25 January 2021 as the respective time-limits for filing of the Memorial by The Gambia and the Counter-Memorial by Myanmar. The procedural law of the ICJ, however, will allow the parties to pursue incidental proceedings side by side in different stages of the case until the final judgment. And, the result of some of the incidental proceedings may definitively determine the outcome of the case. This essay will shed light on such possible incidental proceedings that might follow in the aforesaid case.

Preliminary Objections

First of all, Myanmar may decide to go for filing preliminary objections challenging the jurisdiction of the Court and/or the admissibility of The Gambia's application. If Myanmar so decides, it will have to file preliminary objections as soon as possible, and not later than three months after delivery of The Gambia's Memorial (see Articles 79-79ter of the Rules of Court). For example, in Certain Iranian Assets (Islamic Republic of Iran v United States of America) case, the ICJ fixed 1 February 2017 and 1 September 2017 as the respective time-limits for the filing of Iran's Memorial and the Counter- Memorial of the US. Later, the US on 1 May 2017, filed preliminary objections to the jurisdiction of the Court and the admissibility of the Application (see Order of 2 May 2017). Upon filing of the preliminary objections, the proceedings on the merits will be suspended. The ICJ delivers its decision on preliminary objections in the form of a judgment meaning that such decision becomes res judicata.

Intervention

Any interested third state including Bangladesh may seek to intervene in The Gambia v Myanmar under Article 62 or Article 63 of the Statute of the ICJ as the case may be. If any third state considers that it has 'an interest of a legal nature' to protect in the aforesaid case, such state may apply to the Court for permission to intervene under Article 62 of the Statute before the closure of written proceedings. On the other hand, any state party to the Genocide Convention may file a declaration under Article 63 of the Statute seeking to intervene no later than the date fixed for opening of the oral proceedings on the grounds that construction of the said Convention is a matter in issue (see Articles 81-86 of the Rules of Court).

The Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) is the first case in the history, in which a state, i.e. Nicaragua was granted permission to intervene under Article 62 of the Statute (Judgment of 13 September 1990). In Whaling in the Antarctic (Australia v Japan: New Zealand intervening) case, the Court found the declaration of intervention filed by New Zealand under Article 63 of the Statute admissible (Order of 6 February 2013).

It should be mentioned that any states intervening under either Article 62 or Article 63 of the Statue do not ordinarily become parties to proceedings, nor are they invested with any rights or obligations attached to the parties. Such states are generally called non-party interveners. Any third state intervening under Article 62 of the Statute can become a 'party' when it has necessary consent to that effect from the parties to the case. A non-party intervener, under Article 62, will not be bound by the judgment of the case, nor will the judgment become res judicata for it. By contrast, a state intervening under Article 63 of the Statute will be bound by the Court's judgment to the extent it relates to the intervention.

Discontinuance

The Gambia and/or Myanmar may notify, at any time before the final judgment on the merits, either jointly or separately, the ICJ that they have agreed to discontinue the proceedings. The Court will then pass an order recording the discontinuance and direct that the case be removed from the list. Alternatively, The Gambia, as the applicant, may unilaterally inform the Court in writing that it will not go on with the proceedings. In the latter case, the ICJ will follow the procedures laid down in Article 89 of the Rules of Court (see Articles 88-89 of the Rules of Court). In Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Nicaragua informed the ICJ that it had decided to renounce all further right of action and was not willing to continue with the proceedings. Since the US also indicated its acquiescence to Nicaragua's request for discontinuance of the proceedings, the Court removed the case from the list (Order of 26 September 1991).

The Rules of Court permit the contending state parties to discontinue a case as a result of out-of-court settlement. In Case concerning Aerial Herbicide Spraying (Ecuador v Colombia), the ICJ removed the case from its list after the Ecuador notified the Court that it had concluded a settlement agreement with Colombia, and that Colombia made no objection to the discontinuance of the case as requested by Ecuador (Order of 13 September 2013). 

The Case concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America) sets an example of joint decision taken by the contending state parties so as to discontinue an ICJ proceeding. The agents of Iran and the US jointly notified the Court that their governments had agreed to discontinue the case (Order of 22 February 1996). In Questions relating to the Seizure and Detention of Certain Documents and Data (Timor Leste v Australia) case, Timor-Leste decided to discontinue the proceedings in view of the fact that Australia's action of returning the seized documents had effectively ended the dispute between the two contending states (Order of 11 June 2015).

Non-Appearance

The Gambia or Myanmar may at any point of time decide not to take part in the proceedings of the case any further. This is popularly known as non-appearance. Non-appearance is governed by Article 53 of the Statute of the ICJ. In Fisheries Jurisdiction Case (United Kingdom v Iceland), Iceland never appeared before the Court. In Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), the US initially appeared before the ICJ, however, later refrained from taking part in the proceedings after the Court had decided that it had jurisdiction to deal with the case. In accordance with the ICJ's ruling in the foregoing case, a non-appearing party continues to remain a party to the case (provided that the Court has jurisdiction), and is bound by the judgment as per Article 59 of the Statute.

Lastly, the ICJ, either at the instance of the parties or proprio motu, may again indicate provisional measures, or revoke/modify the earlier provisional measures at any time in connection with the proceedings of The Gambia v Myanmar (see Articles 73-76 of the Rules of Court). The Rules of Court allows Myanmar to submit counter-claims in its Counter-Memorial, however, the factual background of the case does not seem to warrant such possibility (Article 80).

The writer is an Advocate, Supreme Court of Bangladesh.