In international adjudication, the principle of judicial economy requires the judge to obtain the best result in the management of a controversy with the most rational and efficient use possible of his or her powers.Footnote 1
Statutes of international courts and tribunals frequently contain provisions reflecting concerns of judicial economy. One may mention, for example, Article 35(2)(a) of the European Convention on Human Rights and Fundamental Freedoms, according to which it ‘shall not deal with any application . . . that has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’ (electa una via non datur recursus ad alteram, or ‘fork in the road’ rule);Footnote 2 in the same logic of efficiency, Article 9 of the Dispute Settlement Understanding of the World Trade Organization (WTO) fosters the establishment of a single panel in the event of multiple complaints.Footnote 3
The absence of specific provisions in the matter, however, does not prevent the principle of judicial economy from guiding and affecting the international judge's activity. It belongs, in fact, to the general canons of adjudication – that is, those canons which are inherent in the judicial function and that the judge takes into account in the exercise of his duties, regardless of what the written procedural law establishes.
Accordingly, the judge is in any case expected to operate in conformity with the principle of judicial economy and to use it in a proper way, namely one that does not compromise the dispute's resolution and/or the establishment of the true state of the world. Such a circumstance is particularly evident where, for reasons of judicial economy, the judge limits the scope of the decision, and this even though no provision requires it.
In order to prove this general contention, this article is divided into four main sections. The focus of section 1 is on the extent to which the principle of judicial economy is present among the guiding principles of adjudication.
In section 2 special attention is paid to the criterion used more frequently in international adjudication to carry this principle out – that is, that which consists in limiting the scope of the decision (or absorption, according to the terminology used in countries with a civil law tradition). This section, in turn, is divided into two subsections, concerning respectively the two different ways of conceiving the criterion at issue.
In section 3 an attempt is made to establish more closely the effect of non-observance and misapplication of judicial economy, especially where it is implemented through the criterion of absorption.
Section 4, finally, enquires into the question whether the principle of judicial economy is an expression of judicial restraint or judicial activism.
1. Judicial economy as a fundamental canon of adjudication
The increasing proliferation of international courts and tribunals exerting jurisdiction over different fields has for some time raised the question whether common principles, that can be applied notwithstanding the statutes and rules of procedure and evidence of these tribunals, are emerging in international adjudication.
According to some authors the question should be answered in the negative; the only rules governing the procedure by which a certain dispute is to be decided ought to reflect the consent granted by the states concerned.Footnote 4
Other authors, on the other hand, maintain there should be a sort of procedural law with a residual character – that is, basic principles whose application, even in the absence of statutory provisions incorporating their content or imposing their observance, should always be ensured.Footnote 5 Nonetheless, the same authors do not agree on the nature of these principles; there are those who consider them part of general international lawFootnote 6 and others who trace them back to the category of the general principles of law recognized by civilized states.Footnote 7
Bearing in mind the recent developments in the case law of the international tribunals, and specifically the inclination of these tribunals to solving similar procedural questions in a similar way (aside from what their respective statutes establish),Footnote 8 the most persuasive opinion is that which in one way or another recognizes the existence of a residual procedural law.
This opinion, however, is not entirely convincing, especially because it uses the category of fundamental principles of litigation to cover both principles stricto sensu and rules of adjudication.Footnote 9
As has always been observed by scholars of both legal theoryFootnote 10 and international law,Footnote 11 a distinction between rules and principles (and not only in matters of procedure) is necessary and refers to the extent to which they work differently.
Rules of procedure require the judge to act in a specific way in the course of the trial and are sometimes expressly provided for in the statutes of the international tribunals. One may mention the non ultra petita rule, according to which a court cannot decide more than it has been asked to.Footnote 12
Fundamental canons of adjudication have, instead, ‘a restricted regulatory range’, since they essentially aim ‘to prescribe a direction that must be followed’.Footnote 13 Hence they would work like directives, guidance criteria which the judge is expected to take into account in the exercise of his duties (Richtungsbegriffe, according to the expression used by German scholars of procedural law).Footnote 14 The principle of judicial economy, which is also the subject of this paper, is clear evidence of it. According to this principle, the judge is expected to conduct the dispute in hand with a rational and efficient use of his or her powers, but its content cannot be codified once and for all, since it is a directive affecting the judge's activity at every stage of the proceeding.Footnote 15
The presence of the principle among the fundamental canons of litigation has always been highlighted by scholars of domestic procedural law.Footnote 16
Conversely, scholars of international adjudication pay little attention to it, probably because its meaning is inherently clear; only a few authors have inquired into its nature and real content where certain systems of solution to international disputes are concerned, and have thus avoided giving to it a comprehensive sense.Footnote 17
Existing case law in this matter, however, shows the growing impact on international adjudication of the principle of judicial economy. It is precisely at this level of adjudication that the principle is increasingly applied, working like a benchmark or measure of rationalization for the judge's discretionary activities.
2. Judicial limitation of the scope of the decision: general remarks
Once the principle of judicial economy has been situated among the general canons of litigation, it is also unsurprising that the criterion which is most used by international judges to carry it out – that is, the one of judicial limitation of the scope of the decisionFootnote 18 (or absorption) – is not codified in any statutory provision.
Specifically, this criterion, which in any case entails a departure from the non ultra petita rule,Footnote 19 can be conceived in two different ways. The most common and less problematic form of absorption is that of stricto sensu. This form of absorption postulates a certain order between the issues to be decided – that is, the presence of an issue which, as a matter of logic, should be analysed before the others; if the decision as to the former issue is able to settle the dispute by itself (absorbing issue), it either precludes or implies a solution to the latter (absorbed issue).Footnote 20
The second type of absorption (so-called absorption lato sensu), instead, takes place where the judge does not wish to enter into a particular question raised in the proceeding and to this end decides the issue which is not logically anterior to the others but in any case enables the dispute to be settled and the resolution of that question to be precluded or implied.Footnote 21
In other words, the difference lies both in the subjective status of the judge limiting the scope of the decision and in the way such a criterion works. In the first type of absorption ‘the [judge] deems that [he] does not need to address a given issue to resolve the dispute. In the second, in addition to judicial economy, there is also judicial avoidance: the [judge] feels the need to resolve the controversy without addressing a particular issue[, even though it would be logically anterior to the others]’.Footnote 22
2.1. Absorption stricto sensu in international case law
In its most common form, the criterion of absorption has been always adopted by international courts and tribunals, regardless the ambit of their jurisdiction. Evidence of it can be found in the practice of universal courts (such as the Permanent Court of International Justice and the International Court of Justice) as well as in that of regional and/or specialized courts (such as the European Union judicial decision-makers, the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and the WTO judicial decision-makers). This circumstance is not surprising and depends on the fact that absorption stricto sensu is a criterion of logic as well as a manifestation of judicial economy.
2.1.1. The case law of the Permanent Court of International Justice and the International Court of Justice
To start with, it is worth considering the case law of the Permanent Court of international Justice and of the International Court of Justice. In the jurisprudence of both courts the use of the criterion of absorption is primarily dictated by the hierarchy of the sources of international law.
As to the Permanent Court of International Justice, the decision of 17 March 1934 in the Lighthouses case may be considered.Footnote 23 The case at issue was meant to establish whether Greece, as the successor state of Turkey, succeeded in the concessionary contract entered into on 14 April 1914 between the Ottoman government and a French company. According to the Treaty of Lausanne of 1923 (Art. 9), the Court answered the question in the affirmative, and subsequently asserted it to be pointless and uneconomical to ascertain whether provisions of general international law existed in this matter.Footnote 24
As for the International Court of Justice, the decision of 12 April 1960 appears to be of considerable importance. In this case, ‘[h]aving arrived at the conclusion that the course of dealings between the British and Indian authorities on the one hand and the Portuguese on the other established a practice, well understood between the Parties, by virtue of which Portugal had acquired a right of passage in respect of private persons, civil officials and goods in general’, the Court did not consider it necessary ‘to examine whether general international custom or the general principles of law recognized by civilized nations may lead to the same result’.Footnote 25
The International Court of Justice, however, adopts the criterion of absorption over and above this hypothesis – that is, with regard to both (i) the relationship between two (or more) merits issues and (ii) the relationship between two (or more) competence issues or receivability issues. As a matter of principle, in fact, the Court is free to base its pronouncement on the ground which is more ‘direct and conclusive’.Footnote 26
An example of (i) can be found in the decision of the case concerning the Rights of the Nationals of the United States of America in Morocco,Footnote 27 wherein the Court, once discordance was ascertained between the treaty law in force and the residential decree of 30 December 1948 concerning the imports in the French zone of Morocco, held it unnecessary to examine the further invoked objections.Footnote 28
Insofar as (ii) is concerned, all cases where the Court has to decide on its competence to settle a given controversy or the receivability of a given petition are significant; once the question of competenceFootnote 29 or receivabilityFootnote 30 is decided in the light of one of the grounds raised in the trial (i.e. the one which generally is more direct and conclusive), the Court is inclined not to enter into the others.
2.1.2. The case law of the European Union judicial decision-makers
As has been already observed, the criterion of absorption stricto sensu (being a criterion of logic, besides a manifestation of judicial economy) has also been used by regional and/or specialized tribunals. In this regard, reference has to be made to the practice of European Union (EU) judicial decision-makers, especially that concerning the validity of EU acts (Art. 263 of the Treaty on the Functioning of the European Union, ex Art. 230 of the EC Treaty). When a party challenges an act for different reasons (for instance, lack of competence and infringement of an essential procedural requirement), the judge, in examining these reasons in the order established by the Treaty or that suggested by logic, annuls the act on the basis of just one of these reasons – that is, the first reason which allows him to annul the act and consider the other objections absorbed.Footnote 31
Thus in the judgment of 14 December 1995 (France/Commission), the Court of Justice, once the invalidity of a Commission regulation was ascertained due to lack of competence, held it unnecessary ‘to consider the other pleas in law of the French Republic’ (point 41);Footnote 32 in the judgment of 18 May 1994 (Codorniu SA v. Council), the same Court, once the invalidity of a Council regulation was ascertained owing to a violation of the former EC Treaty, held it unnecessary to pronounce on ‘the other pleas in law put forward by Codorniu’ (point 36);Footnote 33 in the judgment of 22 October 1996 (Societé nationale des chemins de fer français and British Railways Board v. Commission), the Court of First Instance, once the invalidity of a Commission decision was again ascertained because of a violation of the former EC Treaty, held it unnecessary ‘to rule on the other pleas for annulment’ (point 65).Footnote 34
Some authors are sceptical of the practice of absorption, considering it to be detrimental to European Union legality.Footnote 35 This practice, however, as observed by other authors, ‘is in line with a well-established logic of judicial economy and since the act is annulled, it does not jeopardize in any way the claimant's rights of defense’.Footnote 36
2.1.3. The case law of the European Court of Human Rights and the Inter-American Court of Human Rights
The European Court of Human Rights also makes recourse to the criterion of absorption. Thus when it ‘finds that a particular article of the [European Convention of Human Rights] has been violated in one respect, it may decide that it is unnecessary to consider whether it has been violated in other respects’.Footnote 37
Such economy of reasoning can be found, for instance, in the case of Pakelli v. Germany.Footnote 38 The Court, in stating on the joint violation of Articles 6(1) and 6(3)(c), highlighted as follows:
[T]he provisions of Article 6 para. 3 (c) represent specific applications of the general principle of a fair trial, stated in paragraph 1 . . . Accordingly, the question whether paragraph 1 was observed has no real significance in the applicant's case; it is absorbed by the question whether paragraph 3 (c) was complied with. The finding of a breach of the requirements of paragraph 3 (c) dispenses the Court from also examining the case in the light of paragraph 1.Footnote 39
Similarly, when the Court ‘has identified a violation of one article of the Convention, it may hold that it has no need to deal with alleged violations of other articles arising out of the same facts’.Footnote 40
From this standpoint, the case of Saadi v. Italy should not be overlooked.
The case originated in an expulsion order issued by the Italian authorities against a Tunisian citizen (Nassim Saadi) and based on Article 3 of Law No. 155 of 31 July 2005 (entitled ‘Urgent Measures to Combat International Terrorism’).Footnote 41 According to the claimant, the conviction for terrorist activities he received in Tunisia would have exposed him to the risk of being subjected to treatment contrary to Article 3 of the Convention, to a flagrant denial of justice ex Article 6 and a violation of his right to respect for his family life and the guarantees regarding the expulsion. Thus Saadi turned to the European Court of Human Rights, claiming the violation of Articles 3, 6, and 8 of the Convention and Article 1 of Protocol No. 7.
On the basis of the information received by some independent non-governmental organizations (NGOs) (Amnesty International, Human Rights Watch) and the US State Department as to the treatment inflicted in Tunisia on persons charged with terrorist activities, the Grand Chamber upheld the applicant's petition, concluding that the expulsion order was contrary to Article 3 of the Convention.
In this light, the Court considered it unnecessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of the further rights raised in the proceeding. Having no reason to doubt that Italy would have complied with the decision, this question was absorbed by that concerning the violation of Article 3.Footnote 42
The frequent use of absorption by the Court, on the other hand, is not always desirable, especially where it risks compromising the establishment of the true state of the world. Yet the Court itself has always the possibility of reconsidering such use in a certain matter and refraining from doing it.
One may consider the case where a decision is required on the joint violation of Articles 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention. From the judgment in the case of Airey v. Ireland at least until 2000, the Court always maintained that once violation of Article 6 is ascertained it is pointless and uneconomical to establish ‘whether there has been a failure to observe the requirements of . . . Article . . . 13: these requirements are less strict than, and are entirely absorbed by, those of . . . Article . . . 6’.Footnote 43
In the case in 2000 of Kudla v. Poland, however, the Grand Chamber (called to decide according to the transitional rule contained in Art. 100(1) of the Rules of the CourtFootnote 44) adopted a partly different approach to the matter, stating that where the right of an individual to a trial within a reasonable time is at stake, this right would ‘be less effective if there exists no opportunity to submit the Convention claim first to a national authority’. Thus ‘the requirements of Article 13 are to be seen as reinforcing those of Article 6, para. 1, rather than being absorbed by the general obligation imposed by that Article not to subject individuals to inordinate delays in legal proceedings’.Footnote 45
In the wake of Strasbourg case law, the Inter-American Court of Human Rights also uses the technique of absorption. An example can be found in the case of Tibi v. Ecuador, where the Court held that, once the unlawfulness and the arbitrariness of the detention suffered by the claimant has been ascertained ex Article 7(3), it is therefore not necessary, according to paragraph 5 of the same article, ‘to address whether or not the time between his detention and his release surpassed the limits of what is reasonable’.Footnote 46
2.1.4. The case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia
In international criminal procedure (as well as at national level) the non ultra petita rule does not operate, since in technical terms the judge's action is not bound to the formulation of a petitum.Footnote 47 Accordingly, even though judicial economy represents one of the legal principles of the said procedure,Footnote 48 the criterion of absorption – requiring the existence of a petitum and entailing a departure from the non ultra petita rule – cannot work within this field.
Yet despite in a wide and untechnical sense, the international criminal tribunals also tend to limiting the scope of the decision. One example in this respect can be found in the recent decision rendered by the International Criminal Tribunal for Rwanda (ICTR) in the case of Karemera, Ngirumpatse et Nzirorera.Footnote 49
In this case, in particular, Nzirorera's defence asked for the application of Article 94(b) of the Rules of procedure and evidence – that is, the provision which allows the trial chambers, at the request of the parties or proprio motu, ‘to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal’. However, in line with the Prosecutor's view, the Tribunal argued that the facts to which the accused had referred could not be deemed to be adjudicated within the meaning of the article at issue, since the decision ascertaining them was currently being appealed; as a consequence it was inappropriate and uneconomical to consider the prosecution's other objections to the defence's motion.Footnote 50
On the other hand, some judges of the ICTY underscored in more general terms that limitation of the scope of the decision is possible. Special reference is made to the separate opinion expressed by Judges Meron and Pocar with regard to the decision of 2003 in the Čelebići case.Footnote 51
Without going into all the facts leading to the decision, suffice it to recall that the offended party asked the Appeals Chamber for reconsideration of the definitive judgment of 20 February 2001.Footnote 52 In his view, the Appeals Chamber, in the case of Kupreškić,Footnote 53 had laid down a new test of the sufficiency of evidence, whose application to the case involving him would have affected the outcome of the trial and led to the quashing of several counts.
The request for reconsideration was, however, rejected, since the referred criterion, namely the distinction between the quality of evidence and the credibility of the witness, was not new to the jurisprudence of the Tribunal and as such could not justify reconsideration of the judgment.
On this assumption, Judges Meron and Pocar, in their separate joint opinion appended to the decision, expressly recognized that the Tribunal ‘address[es] those questions only where . . . it is necessary to do so’.Footnote 54 Accordingly, given the absence of any change in the legal rules governing evidence, there was no reason to address the circumstances in which the Appeals Chamber may reconsider its judgments. The two questions were strictly linked with each other, since the decision of the former issue affected, and in this case made unnecessary the decision of the latter.
2.1.5. The case law of the WTO judicial decision-makers
Finally, as to absorption stricto sensu, the case law of the WTO judicial decision-makers may be considered.Footnote 55
According to Article 17(12) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the Appellate Body ‘shall address each of the issues raised in accordance with paragraph 6 of this Article, namely the issues of law covered in the panel report and legal interpretation developed by the panel’. Until recent times this provision has been understood in a very restrictive way – that is, the Appellate Body must deal with every point put forward in argument.
Nevertheless, on the one hand, panels have never felt obliged to consider this provision, precisely for reasons of judicial economy, and have thus often limited the scope of the decision; on the other hand, since 2005 even the Appellate Body itself has started to give a less strict reading of Article 17(12) of the DSU, arguing that a departure from it is possible.
As to the panels’ tendency to decide just some of the issues raised in the proceeding, the first decision recognizing such a possibility was that rendered by the Appellate Body in the case of United States – Wool Shirts and Blouses.Footnote 56
In the case at issue, in particular, it has been maintained that a panel ‘need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’.Footnote 57 In the view of the Appellate Body, this is a circumstance which can be inferred precisely from the aim itself of WTO litigation; in the light of a strict interpretation of Article 3(2) of the DSU,Footnote 58 its purpose is only to resolve disputes. Both panels and the Appellate Body should refrain from making law through general pronouncements beyond the ambit of the dispute.Footnote 59
The panels’ power to exercise judicial economy was further specified by the Appellate Body, which clarified that if the use of the criterion of absorption aims to fulfil the scope itself of the adjudication, this scope represents also its limit: the limitation of the scope of the decision will not be possible where it prevents the Dispute Settlement Body (DSB) from ensuring an effective resolution of the dispute in hand (Australia – Measures Affecting Importation of Salmon).Footnote 60
In recent times even the Appellate Body started to use the criterion of absorption, confirming the contention of Jeff Waincymer, according to which such a possibility was not foreclosed by the DSU text.Footnote 61
More specifically, the Appellate Body uses the criterion of absorption stricto sensu in two cases, namely to avoid the decision of (i) procedural issues, and above all of (ii) substantive issues.
As to (i), the single hypothesis to be considered is where the Appellate Body amends a panel's decision on substantive grounds and refrains from deciding the further procedural issue concerning possible violation of Article 11 of the Understanding – that is, the provision which obliges a panel to make an objective assessment of the matter before it.Footnote 62
As for (ii), the decision in the case of US – Gambling is particularly interesting.Footnote 63 The decision originated from the adoption by the United States of measures aimed at restricting the cross-border supply of gambling and betting services. These measures, according to the US government, were in line with the obligations under the General Agreement on Trade in Services (GATS), since they were already justified under the exceptions provided for by Article XIV(a) and (c), and were thus necessary to protect public morals and to guarantee respect for certain national regulations.
In the lawsuit filed by Antigua against the United States, the panel considered the above measures not to be justifiable under the exceptions invoked by the defendant and argued that, on the contrary, both the protection of public morals and compliance with domestic regulations could be achieved in another way and to this end the United States had first to request consultations with Antigua.
On appeal, the panel's finding was reversed, since the request for consultation did not represent a reasonable alternative to the restriction on the exchange of services. According to the Appellate Body, the measures adopted by the United States were effectively necessary to guarantee public morals ex Article XIV(a).
Nonetheless, again according to the Appellate Body, the same measures led to a violation of the chapeau of the provision at issue, causing arbitrary and unjustifiable discrimination between member states where like conditions prevail. Indeed, the Interstate Horseracing Act (1978) authorized domestic – but not foreign – service suppliers to offer remote betting services in relation to certain horse races.Footnote 64
In this light the Appellate Body, for reasons of judicial economy, maintained that it was unnecessary to ascertain the further question whether the US measures were also justified under Article XIV(c). Given the discriminatory nature of these measures, such ascertainment could in no way affect the outcome of the proceeding.Footnote 65
2.2. Absorption lato sensu in international case law
The judicial limitation of the scope of the decision, as a criterion for carrying out judicial economy, can be used not only stricto sensu but also lato sensu.
In the latter, the judge wishes to resolve the dispute in hand without addressing a particular question and, to this end, gives precedence to the issue which is not logically anterior to the others but by itself enables the dispute to be settled and the resolution of that question to be precluded.
This criterion, like that mentioned in the previous paragraphs, is not new to international jurisprudence. Yet tribunals resorting to it are especially those possessing the features typical of arbitration among states (Permanent Court of International Justice, International Court of Justice, International Tribunal for the Law of the Sea, and WTO judicial decision-makers). Such tribunals, in fact, are more sensitive to the need to avoid the analysis of controversial issues – that is, issues which do not meet with a general consent of the states accepting their jurisdiction and whose decision can compromise the dispute resolution.
2.2.1. The case law of the International Court of Justice
The International Court of Justice has made use of absorption lato sensu several times.Footnote 66 Among the oldest judgments, those regarding the Nuclear Tests of 20 December 1974 and the Aegean Sea Continental Shelf of 19 December 1978 may be recalled.Footnote 67
The first proceeding concerned the atmospheric nuclear tests carried out by France in the southern Pacific, which, in the view of New Zealand, were contrary to international law. As a matter of logic, the Court – by its own acknowledgement – ought to have assessed first its jurisdiction in the case at issue and, second, whether there was a dispute between the parties. However, the intense complexity of the dispute, which took place in the middle of the Cold War, induced the Court to decide as a priority whether there was indeed a controversy between France and New Zealand.Footnote 68 Bearing in mind the unilateral declaration by France that it would suspend the atmospheric tests in the Pacific, according to the Court the controversy had ended, making it unnecessary to decide the first and more sensitive issue raised by the defendant state.Footnote 69
In the Aegean Sea decision, on the other hand, the Court did not enter into the logically anterior issue of whether the 1928 General Act for the Pacific Settlement of Disputes was still in force. Indeed, it went to rule, with priority, on the effect of a reservation held by Greece to that Act.Footnote 70
In more recent practice, the same question as that which emerged in Aegean Sea was confronted by the Court in the decision Aerial Incident of 10 August 1999 and solved in similar fashion – that is, considering first the scope of India's reservation to the 1928 General Act.Footnote 71
Finally, a further application of this criterion might be found in the decision in Arrest Warrant of 11 April 2000.Footnote 72
The decision, as is well known, originated from the arrest warrant issued by the Belgian judiciary against the former minister of foreign affairs of the Democratic Republic of the Congo (DRC), for war crimes and crimes against humanity – that is, crimes which fall under the principle of universal jurisdiction.
Following the adoption of this measure by Belgium, the DRC, in its original submission, challenged the legality of the measure and asked for its annulment on two main grounds, namely arguing that (i) Belgium did not have jurisdiction to issue the warrant, and (ii) in any case, the person concerned, as minister of foreign affairs then in office, enjoyed immunity from jurisdiction.
As a matter of logic, the issue concerning the existence of this jurisdiction was prior to that of immunity, but the Court preferred to decide directly on the other one, upholding the DRC's petition and asking the Belgian authorities to annul the warrant.Footnote 73
Arguably, in line with the opinion maintained by some authors, once again the order of analysis was altered for strategic reasons.Footnote 74 This opinion, however, cannot be shared; in the final form of its submission, the DRC decided not to contest Belgium's exercise of universal jurisdiction. Thus, in the present case, the Court limited itself to respecting the non ultra petita rule and to deciding no more than it was asked to.Footnote 75
2.2.2. The case law of the International Tribunal for the Law of the Sea
Apart from the International Court of Justice, the criterion of absorption lato sensu has been adopted by the International Tribunal for the Law of the Sea. Reference has to be made especially to the decision of 1 July 1999 in the case of M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea).Footnote 76
The purpose of this case, among other things and following a logical order, was to establish (i) whether a state could bunker offshore, and (ii) whether a coastal state, in its own exclusive economic zone and in applying its own customs laws, could punish a foreign ship for carrying out such activities.
In altering the logical order of analysis, the Tribunal directly decided on question (ii), concluding that bunkering in the case at issue could not be punished. In its view, the UN Convention on the Law of the Sea (UNCLOS) does not allow coastal states to apply customs laws and regulations in respect of artificial islands, installations, and structures (Article 60(2)).Footnote 77
On this assumption, the same Tribunal abstained from deciding the first and more general issue raised by both parties, considering the decision of the second issue sufficient to settle the dispute.Footnote 78
2.2.3. The case law of the WTO judicial decision-makers
Even though the International Court of Justice and the International Tribunal for the Law of the Sea have sometimes made use of the criterion of absorption lato sensu, it is in the framework of the practice of the WTO judicial decision-makers that this criterion has been expressly adopted for reasons of judicial economy. In this respect, the Appellate Body decision in the case of US – Customs Bond Directive is quite significant.Footnote 79
According to the view expressed by India in the case at issue, Article VI of the General Agreement on Tariffs and Trade (GATT) 1994, the Ad Note to this Article, and the Anti-Dumping Agreement would constitute a sort of complete and self-contained code, in the light of which the legality of anti-dumping measures had to be evaluated. This conclusion was inferred from the text of Article 18(1) of the Anti-Dumping Agreement (entitled ‘Final Provisions’, according to which ‘[n]o specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement’).
On this assumption, India asked the Appellate Body whether the adoption of antidumping measures by the United States fell under the defence envisaged in Article XX(d) of the GATT: the said Article allows a departure from the GATT where necessary ‘to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement’, and thus, in India's view, would have made Article 18.1 pointless.
As a matter of strict logic, the Appellate Body had first to pronounce on the systemic issue concerning the availability, where dumping was concerned, of a defence under Article XX(d), and subsequently to establish whether in the case at issue the US measure had failed under this exception. However, it altered the logical order of analysis of the issues raised in the proceeding and directly decided the second issue, highlighting the unnecessary character of the US measure and in this way abstaining from analysing the more sensitive issue put forward by India.
3. The binding nature of the principle of judicial economy
Judicial economy, as a legal principle, should be binding on the judge, but the effects of its non-observance are far from being clear. This issue, which, in more general terms, emerged with regard to all fundamental canons of procedure, has been examined in depth and viewed differently by scholars of international adjudication.
According to some authors, every tribunal exercising its judicial function should be required to operate in conformity with fundamental procedural principles. Thus a departure from these principles may serve as a plausible ground of revision or nullity of a judgment or award.Footnote 80 Other authors, on the contrary, are more cautious in the matter. In their view, any inquiry into the incidence and operationality of the fundamental procedural canons should be contextual – that is, conducted with the particular situation in dispute taken into account.Footnote 81
The second opinion is the more convincing one, but as far as the principle of judicial economy is concerned this opinion needs to be further specified. In this author's view, in particular, the bindingness of judicial economy depends on the way in which it interacts with rules of procedural law, since the principle can justify the application of a rule of procedure as well as a departure from it.
Where the principle provides the rationale for and is implemented through a positive rule of procedure, like that of the ‘fork in the road’,Footnote 82 its binding nature is the same as the rule implementing it.
Where, conversely, the application of judicial economy entails a departure from a rule of procedure, the logic of weight and balance prevails, which means that depending on the circumstances of the case the judge will decide which of the two norms is to be applied.Footnote 83
This is precisely what happens in the case under discussion here. According to the non ultra petita rule the judge should address all questions raised by the parties, whereas the principle of judicial economy calls for the decision of those issues alone which are necessary to the dispute's resolution and/or the establishment of the true state of the world. Both norms are valid and binding but cannot be applied simultaneously, since the application of one of them entails departure from the other. Hence, depending on the circumstances of the case, the judge should make a clear choice.
On the other hand, the likely consequences of this choice are not always the same, given that, in practice, (i) the decision of the judge to give prevalence to the non ultra petita rule is generally considered fair, while (ii) if the judge adopts the criterion of absorption, he must be especially vigilant in applying it rigorously; its misapplication may lead to amending the decision or precluding its enforcement.Footnote 84
3.1. The concept of false absorption
At least at international level, the use of the criterion of absorption is considered to be false or improper where it compromises the aim itself of the legal process.Footnote 85 In greater detail, scholars of procedural law identify two ideal types of proceeding. The first is the conflict-solving type, namely a legal process whose aim is to maximize the goal of dispute resolution, even where this undermines the establishment of the true state of the world.Footnote 86 The second type of proceeding assumes, on the contrary, that accurate fact-finding is most likely to yield accurate results and in this way restore legality.Footnote 87
Now, the aim of international adjudication is not always the same, since it changes depending on the parties taking part in the proceeding.
Adjudication between states – that is, one whose raison d'être lies in the custom principle of the ‘pacific settlement of disputes’, can be conceived solely as a conflict-solving type of proceeding.Footnote 88
This opinion has always been held by the most qualified international law doctrine since the establishment of the Permanent Court of International Justice. Among other scholars, one may mention Mario Scerni who, in the wake of the teaching of Francesco Carnelutti (a well-known Italian lawyer),Footnote 89 argued that ‘le but essentiel du procès entre Etats . . . n'est pas celui de faire ressortir à tout prix la vérité objective, mais plutôt celui de résoudre, selon le droit international positif, les litiges entre Etats’ (the main scope of international litigation is not to ascertain the material truth, but to settle international disputes between states according to positive international law).Footnote 90
The whole practice of the WTO judicial decision-makers confirms this point. In this context, the need to achieve a positive solution to the controversy in hand is always the premise for (United States – Wool Shirts and Blouses),Footnote 91 but also the limit to, the use of the criterion of absorption, precluding its adoption where the dispute resolution risks being compromised (Australia – Salmon).Footnote 92
In the same vein one may consider the jurisprudence of both the Permanent Court of International Justice, the International Court of Justice, and, finally, the International Tribunal for the Law of the Sea. The tendency of these tribunals is to abstain from deciding some issues, especially those that are particularly sensitive, and in this way they tend to favour the dispute resolution by reaching a judgment which the concerned parties are willing to execute.
On the other hand, where international adjudication involves individuals, the aim of this adjudication is most akin to establishing the true state of the world.
One may have regard to the development of the Strasbourg Court's case law concerning Articles 6 and 13 of the European Convention: since the judgment in Kudla,Footnote 93 the opinion according to which sometimes it is necessary stating on the violation of both articles tends to prevail. This is because it is thought that such a statement is most likely to yield accurate results and in this way remedy the injury suffered by the concerned party.
Clarification of this point is pertinent to our investigation, since it allows us to establish whether resorting to the technique of absorption is possible. It is precisely in the light of the specific aim of litigation that the international judge works and conducts the proceeding in hand; as a consequence, judicial limitation of the scope of the decision is possible, but only where this aim is not compromised.
3.2. Effects of false absorption
3.2.1. False absorption as a plausible ground of appeal or reconsideration
Once the concept of false absorption has been clarified, its effects on the proceeding in hand ought to be established. In this regard, the first question is whether within those litigation systems providing a double degree of jurisdiction, the absence of any reference to a particular issue, for reasons of judicial economy, could give rise to an appeal.
In WTO litigation the panel's exercise of false absorption is considered to be an error of law.Footnote 94 Hence, since appeals are limited to issues of law covered in the panel report and legal interpretation developed by the panel, a complainant can challenge it before the Appellate BodyFootnote 95 and ask this body to complete the analysis on the skipped clauses.Footnote 96
Some further indications on the matter at issue can be found in the European Convention on Human Rights (ECHR) system. Even though appeal is alien to this system, the mechanism of internal reconsideration based on the role of the Grand ChamberFootnote 97 can remedy a false use of absorption.
More particularly, according to well-established case law of the Strasbourg Court, the finding of a violation of one provision of the European Convention makes ascertainment of the violation of another provision unnecessary. However, where this practice raises a serious question affecting the interpretation or application of the Convention and risks compromising the rights of the claimant, the Grand Chamber could be required to intervene. Under this point of view, the Kudla case is once again significant, despite under the transitional rule contained in Article 100(1) of the Rules of the Court,Footnote 98 this case was referred to the Grand Chamber and was decided in line with the need to remedy a misapplication of the criterion of absorption.Footnote 99
3.2.2. Alternative means of remedying or sanctioning false absorption
Where false absorption has not been (or cannot be) challenged on second instance, there exist alternative means that are available to remedy or sanction it.
In WTO litigation, for example, if the extant factual record does not allow the Appellate Body to complete the analysis and rule on the issues on which the original panel refused to adjudicate, false absorption can be corrected during the compliance stage through the mechanism provided for in Article 21(5) of the Understanding.Footnote 100 In particular, according to this Article, where there is disagreement as to the existence of or consistency with a covered agreement of measures adopted to comply with recommendations and rulings of the DSB, it is possible to resort to the original panel. Before this panel a complaining member can make claims that were left undecided due to false absorption, but only insofar as they are closely related to the measures taken by the respondent state to comply.Footnote 101 As observed by the Appellate Body, indeed, since the aim of Article 21(5) is to promote prompt compliance with DSB recommendations and rulings, the situation in which a member state begins new panel proceedings is to be avoided.Footnote 102
On the other hand, an improper use of absorption can be sanctioned directly by the debtor party, which could refuse to execute the final decision, considering it null and void.
4. Judicial economy as an expression of judicial activism
The foregoing analysis shows that international courts and tribunals increasingly use the criterion of absorption, entering into those issues alone which are necessary for the resolution of the disputes and/or the establishment of the true state of the world.
Such frequent use invites some final remarks on the proper nature of the principle of judicial economy and, even more, on the ways of perceiving the task of the judge in international adjudication.Footnote 103
According to the more orthodox approach, which considers the judge to be a mere ‘executor of the law’,Footnote 104 the main or exclusive function of a jurisdiction lies in deciding a given case in accordance with the law (judicial restraint).Footnote 105 This conception would also affect the practice of international judges to append separate opinions; similar opinions would in fact be admissible only where they do not go ‘beyond the considerations germane to the actual decision made by the [concerned] Court and its motivations’.Footnote 106
From a different perspective, the judge is not meant to limit him- or herself to the settlement of the dispute in hand but should, where possible, identify the issues of particular interest, and in this respect make ‘general pronouncements . . . that may enrich . . . the law’.Footnote 107 This is the way so-called judicial activism may be carried out and thereby promote the progressive development of law (both domestic and international).
On this assumption some authors maintain that in international adjudication judicial economy would at any rate be a principle of judicial restraint and a fortiori evidence that, at this level of adjudication, there is de facto stare decisis, or quasi-binding precedent.Footnote 108 In order not to affect the outcome of future trials with judgments of a persuasive nature, the tribunal in question refrains from entering into particularly sensitive issues – that is, issues which could not meet the general approval of the states accepting the tribunal's jurisdiction.Footnote 109
Such an opinion, however, is unable to explain the principle of judicial economy with all its implications.
The limitation of the scope of the decision, as has been repeatedly highlighted, is just one of the possible means of carrying out this principle. Reasons of judicial economy, for instance, sometimes lead the European Court of Human Rights to identify in its judgments, finding a violation of the ECHR, what it considers to be a systemic problem – that is, a problem which is likely to give rise to numerous applications, thereby stemming the flow of future ‘clone-proceedings’ (so-called pilot judgment procedure).Footnote 110 In these cases, the judge certainly does not act within the terms of self-limitation.
Thus, as far as the alternatives of judicial restraint or judicial activism are concerned, it is our opinion that the principle of judicial economy reflects one of the possible applications of judicial activism, even where it leads the judge to limit the scope of the decision.
Indeed, if we accept a broad notion of judicial activism, one which includes all acts carried out by the judge in disagreement with the petitum, it will manifest itself not only in the case where some issues are decided using general solutions that go beyond the dispute, but also where some issues – exactly for reasons of judicial economy – are not decided at all.Footnote 111
