Public International Law Content
International Court of Justice and it’s Jurisdiction
- The UN Charter article 92 provides that the ICJ is the ‘principal judicial organ of the UN”.
- All members of the UN are ipso facto members of the Court (article 93).
- The statute of the International Court of Justice is virtually the same as that of the PCIJ.
- Organization of the Court: 15 judges elected by the simultaneous voting by the SC and the GA. No two countries may have more than one judge at the same time.
Jurisdiction of the ICJ
- At the level of judicial settlement the principle is similarly one of voluntarism, and the ICJ continues to recognize and apply that principle even in cases involving peremptory norms.
Case concerning East Timor, ICJ Reports 1995 p 90, 102 (para 29):
‘However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.’
Spain/Canada (Preliminary Objection), ICJ Reports 1998 p 432, 456 (para 55):
‘55. There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction and having heard full legal argument by both parties.’
- Who judges jurisdiction?
This raises the question, who judges? International law has gradually established the principle oddly referred to as Kompetenz-Kompetenz, that is, that the court decides.
The ICJ said the same in Nottebohm (Preliminary Objections), ICJ Rep 1953 p. 111, 119. Guatemala maintained that Article 36(6) only related to disputes concerning the application of Article 36(2) of the Statute. The Court dismissed the argument, and pointed out that Article 36(6) was drafted in broadest terms and there was nothing in it to indicate any restriction:
“Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. … The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being ‘of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function’. This principle has been frequently applied and at times expressly stated.”
- Contentious jurisdiction
A distinction is often drawn between personal, subject-matter and temporal jurisdiction (jurisdiction ratione personae, ratione materiae, ratione temporis) and even jurisdiction as to place (jurisdiction ratione loci). Since international jurisdiction depends on consent as to all its elements, the distinction is partly a descriptive one and there are common elements.
- Existence of a dispute
The classic definition of a dispute is “a disagreement on a point of law or fact, a conflict of legal views r interests between two persons”: Mavrommatis Palestine Concessions, PCIJ Ser A No 2 (1924) 11. It is a flexible formulation – but a party cannot create a dispute merely by asserting that one exists.
- Consent to jurisdiction
- Consent by treaty
The parties may refer a case to a court by prior agreement, either in a treaty (by way of a compromissory clause) or by a specific agreement to that effect, usually called a Special Agreement: see Art 36 (1). Normally such a Special Agreement will avoid any doubt as to the existence of jurisdiction – but there may be a question whether agreement “in principle” to go to the Court amounts to a special agreement.
- Alternatively the Court has what is called “compulsory” jurisdiction under what is called the “Optional Clause”: Statute, Art 36 (2). This is complementary to jurisdiction under Art 36 (1), and a State may rely on it in the alternative: see e.g. Nicaragua Case (Jurisdiction and Admissibility) ICJ Rep 1984 p 392.
States may accept jurisdiction under the Optional Clause subject to limitations or reservations, which operate reciprocally (“in relation to any other State accepting the same obligation”). Thus jurisdiction exists only to the extent that two Optional Clause declarations overlap, and one party can rely on a reservation made by the other: Interhandel Case ICJ Rep 1959 p 6, Harris, 1005; Norwegian Loans Case ICJ Rep 1957 p 9.
Declarations under the Optional Clause give rise to treaty-like obligations to accept jurisdiction, and are binding in accordance with their terms: Nicaragua Case (Jurisdiction and Admissibility) ICJ Rep 1984 p 392.
- Non-parties and admission to jurisdictional systems
States not parties to the Statute may have access to the Court pursuant to Article 35 (2). See SC Resolution 9, 15 October 1946.
- Forum prorogatum
The ICJ will have jurisdiction if a party appears and pleads to the merits of the case, or otherwise accepts jurisdiction ad hoc: e.g. Corfu Channel Case (Preliminary Objections) ICJ Rep 1948 p27. There is no reason why the same principle should not apply to other courts and tribunals |(a to matters falling within their subject matter competence).
- Withdrawal of consent
Two basic rules: (1) consent must be effective at the time of commencement of proceedings; (2) once consent is effective it is not lost by withdrawal of consent.
As to the first, there is a qualification, variably applied. The Court has sometimes be inclined to overlook defects of form which would be remediable by a new Application:
“In the view of the Court, it does not necessarily follow that, because a State has not expressly referred in negotiations with another State to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a compromissory clause in that treaty. The United States was well aware that Nicaragua alleged that its conduct was a breach of international obligations before the present case was instituted; and it is now aware that specific articles of the 1956 Treaty are alleged to have been violated. It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do.”
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Rep 1984, p. 392, 428-429, para 83.
- Jurisdiction ex aecquo et bono
The ICJ has jurisdiction to decide ex aequo et bono only if the parties specifically so agree: ICJ Statute, Art 38(2). There is no case where they have done so far.
Consent to a decision ex aecquo et bono has occasionally happened in the context of mixed arbitration: see e.g. Benvenuti & Bonfant v Congo (1980) 1 ICSID Reports 330, 361 (fixing of interest). In Amco Asia Corporation and others v. Republic of Indonesia (1986) 1 ICSID Rep. 509, 561-7 the Committee pointed out that equitable principles were part of international law and applying them did not amount to adjudication ex aequo et bono.
- Advisory Jurisdiction
The ICJ’s jurisdiction is divided into contentious cases (which are necessarily between States: Statute, Art 34) and advisory opinions at the request of a competent UN organ. The two streams are entirely distinct; individual states cannot request advisory opinions, and international organisations cannot be a party to contentious proceedings. This presents problems in terms of such functions as “judicial review” of decisions of UN organs.
The UN as such is not bound by a judgment in contentious proceedings: Statute, Art 59, or even for that matter an advisory opinion: Statute, Art 65.
Quite distinct from its jurisdiction in contentious cases, the Court can give advisory opinions at the request of the General Assembly, the Security Council, or another UN organ or specialised agency authorised to request opinions.
The Court has jurisdiction to give an advisory opinion if it is properly requested by a body authorized to make the request. Thus if the request goes to matters ultra vires the requesting body, the Court will decline to give the opinion: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996 p. 66.
In the Eastern Carelia Case PCIJ Ser B No 5 (1923), the Permanent Court seems to have thought it had no jurisdiction to give an advisory opinion in a case affecting the legal rights of a third State (Russia, which at the time was not a party to the League). The decision in Eastern Carelia was restrictively distinguished in Interpretation of Peace Treaties (Second Phase) ICJ Rep 1950 p 65, and has not been applied since.
Nonetheless it is accepted that the Court has a discretion not to give an advisory opinion. But where the request is validly made, it has so far always decided to give the opinion, even though there might have been considerations pointing the other way:
Western Sahara Opinion ICJ Rep 1975 p 12.
Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996 p. 226
In the period up to 1975, the Court gave some of its most important decisions in advisory opinions: e.g. Reparations Opinion ICJ Rep 1949 p 174; Reservations to the Genocide Convention ICJ Rep 1951 p 15; Certain Expenses of the United Nations Opinion ICJ Rep 1962 p 151; Namibia Opinion ICJ Rep 1971 p 16. Since then contentious cases have predominated, but see:
Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p. 136