Jurisdiction of the ICJ notes PDF

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Jurisdiction of the ICJ General - There is no obligation in general international law to settle disputes – procedures for settlement by formal and legal procedures are consensual in character o Draft statute provided for compulsory jurisdiction, BUT the great powers and their supporters resisted this successfully  Weak compromise in the form of the optional clause - Article 92 of the UN Charter: ICJ is the principal judicial organ of the UN; all UN members are ipso facto parties to the ICJ Statute (Article 93) - Article 31: a party to a case has an effective right to representation by a national judge and, if there is NO judge of its nationality, by a judge ad hoc (who may be of its or some other nationality) – will commonly support that party’s view of the case when on the bench - State reluctance to resort to the Court: o Court generally regarded as unfriendly o Greater suitability of other tribunals and other methods of review o General conditions of international relations o Preference for flexibility of arbitration vs compulsory jurisdiction - Court’s reputation plummeted among developing states, who saw the Court as wedded to western attitudes and approaches to intl law following South-West Africa o BUT Nicaragua marked change in perception – ability of a small state to take on global superpower and win. Sovereign equality and legal equality of states exhibited. - Court has been influential in development of intl law as a whole + giving advisory opinions re interpretation of the Charter o When, in AOs, Court has pronounced on interpretation for the Charter has done so boldly on political issues (did NOT surrender such character bc they were also legal issues) - Kosovo - Number of contentious cases before the court have increased - Debate between disputes being resolved by political organs of the UN rather than the Court: Nicaragua o Court rejected the US’s contentions that the dispute concerned a matter that should be resolved by the political organs of the UN rather than its Court and that the Court should NOT involve itself in a situation that concerned an ongoing armed conflict o Recourse to judicial settlement of legal disputes should NOT be considered an unfriendly act between States (1982 Manila Declaration on the Peaceful Settlement of International Disputes) Similarities between the Court and arbitration: institution of national judges, use of special jurisdictional agreement, power to decide ex aequo et bono, and application of basic principles (absent contrary agreement, international tribunal may determine its own jurisdiction – Nottebohm) Issues Common to Contentious Cases and Advisory Opinions: - Ability to have ad hoc judges: (Art 31(1) judge of nationality can sit, Art 31(2)(3) can nominate an ad hoc judge) contentious cases, Art 68 advisory opinions): Gross

o Institution of judges ad hoc is a matter of controversy for those who believe it should be suppressed to promote impartiality of the court o Middle ground: abolition of ad hoc judges should be combined with exclusion of national judges from the bench (judges who are members of the Court and nationals of one/both parties before the Court)  In this view, essential objective should be quality between the parties – can be achieved either by adding to the bench a judge ad hoc or excluding the national judge o Fitzmaurice: attacked the system. 2 points:  Those who advocate its retention on the ground that it increases confidence in the Court argue from an impermissible premises that judges, particularly ad hoc judges, will necessarily espouse the view of their government (Barcelona Traction)  Once a case is terminated a judge ad hoc may feel himself free of every obligations of confidence and reveal to his gov what was said in the Court (harmful consequences for independence of judges, particularly if revelations occur immediately prior to elections to the Court) JURISDICTION IN CONTENTIOUS CASES -

Locus standi: o Article 34: only states may be parties to cases before the court o Question of whether access should be opened to public international organisations or individuals/companies: study group on the Court: yes  Since neither intl legal personality nor capacity to bring claims is restricted to States (Reparations), logic of excluding the UN and specialised agencies from using the Court as parties is NOT self-evident  These organisations compelled to use arbitration or the ‘binding’ advisory opinion  Significant gap that public intl orgs CANNOT be held legally accountable to States in the principal judicial organ of the international community, nor can States be held legally accountable to such organisations  This is more odd in substance: public international orgs are nothing other than States acting collectively o On the other hand: no  Little demand for direct standing from the organisations themselves + change would require amendment of Article 34 of the Statute  If disputes bw States and international orgs were then to go to ICJ, would add pressure to the Court’s list o Therefore NO strong support for the idea that individuals/public orgs should be given locus standi in current thinking o Article 35(1): non-UN member states may become parties to Statute by complying with conditions set out by GA on the recommendation of SC o Art 35(2): state NOT party to Statute of the ICJ may have access to the Court by making a declaration accepting its jurisdiction

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Primary rule: basis of consent (Article 34(1)) – depends on will of the parties, corollary of sovereign equality (Nicaragua, Article 36) o Rosenne: classic method by which parties refer case to the Court = by agreement between them using a special agreement (compromis) = agreement bw two or more states to refer a particular and defined case/matter to Court for decision  Court seized of jurisdiction over concrete case by act of notification of agreement to the Court o Rosenne: second method of conferring jurisdiction = by agreement under a treaty in force: compromissory clause in a multilateral or bilateral treaty (Article 37) (transferred jurisdiction) Matters specifically provided for in Charter of UN (Article 36(1)) Ad hoc consent – NO FORMAL REQUIREMENTS for voluntary jurisdiction (jurisdiction for all cases referred to it – Article 36(1)) – Nicaragua Advance consent – Article 36(1) o Too ready to assert jurisdiction? Are advisory opinions where court dealing with highly political issues and whether such disputes better left to resolution by thirdparty means (negotiation, etc) – Kosovo o Jurisdiction under Article 36(1):  Classic method by which parties refer the case to the Court by agreement between them = special agreement (compromise): agreement by which 2+ states agree to refer a particular and defined case or matter to the Court for decision  Second method: by agreement under a treaty in force: compromissory clause in a multilateral or bilateral treaty  Third implied method: forum prorogatum (consent post hoc): Mutual Assistance  Court has jurisdiction where parties give their consent by separate acts expressly or impliedly accepting it, one of them being the making of a unilateral application under Article 40(1) of the Statute of the Court  Mutual Assistance: Djibouti commenced proceedings by filing unilateral application; in response in letter to Court, France expressly agreed to Court’s jurisdiction; therefore France gave express consent forum prorogatum by letter;  Corfu Channel: jurisdiction when Albania responded by letter to a unilateral application expressly accepting Court’s juris  Court will infer jurisdiction forum prorogatum from participation of state in the proceedings of the case BUT NOT where only reason for appearing in the case is to challenge the jurisdiction (Armed Activities)  Rules of the Court Article 38(5): case by unilateral application will not be entered onto Court’s list unless other state responds positively  Deals with ‘fishing’ for jurisdiction that used to happen in cases in which state would make Article 40(1) application when no basis for jurisdiction was available other than forum prorogatum and see how other potential party reacted Jurisdiction under optional clause Article 36(2) o Creates mutual obligation

o State may make a unilateral declaration by which it accepts the Court’s jurisdiction in all “legal disputes” vis a vis all other states that make such declarations  Therefore a form of compulsory jurisdiction subject to certain limitations (reservations to the Court’s jurisdiction that State has attached to its declaration OR restrictions to the Court’s jurisdiction that arise from the principle of reciprocity)  Bc commitment based partly in relation to any other state fulfilling the conditions of the Statute, aspect of compulsory jurisdiction (although submission of declaration in the first place still entirely consensual)  Court has accepted that states may attach reservations to their declarations in addition to the conditions which they may attach in accordance with Article 36(3)  Principle of reciprocity: a state accepts the Court’s jurisdiction vis a vis any other state only insofar as the state has accepted it also o Jurisdiction is conferred on the Court only to the extent to which the two declarations coincide in conferring it o Introduced to cover the case where a state might want only to be bound by Court’s jurisdiction if a worthwhile number of other states were bound or if a state whose acceptance was particularly important to it was bound o Nicaragua limitation: principle of reciprocity only applies to the scope and substance of the judgments entered into; it does NOT extend to the formal conditions of their creation, duration, or extinction (therefore US not permitted to rely on the “terminable upon notice” limitation in the Nicaraguan declaration)  Where declaration for an indefinite period of time, terminable on reasonable notice (Nicaragua)  Therefore bound to accept jurisdiction vis a vis any other state that made a unilateral declaration insofar as the acceptances coincide o Independent declarations binding in that withdrawal possible only in accordance with principles analogous to law of treaties (Nicaragua) o Character and interpretation of declarations:  Nicaragua: optional clause declarations are unilateral acts establishing a series of bilateral engagements  Fisheries Jurisdiction: interpretation of declarations made under Article 36 = aimed to establishing whether mutual consent has been given to jurisdiction of the court  Declaration of acceptance of the compulsory jurisdiction of the Court is a unilateral act of State sovereignty  The court will thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction from the Court o Intention may be deduced not only from text of relevant clause but context in which clause to be read and examination of

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evidence regarding circumstances of its preparation/purposes intended to be served Jurisdiction to decide ex aequo et bono (power of arbitrators to dispense with consideration of the law BUT consider solely what they think = fair/equitable to the case at hand) – Article 38(2) o Qualifies Article 38(1), which refers to function of court as being to decide in accordance with international law o Has not yet been exercised – not easily reconciled with judicial character of the Court Third States in Contentious Litigation: (East Timor): Article 36(2) application o Third party does NOT wish to become involved: court may NOT give judgment on a case bw States A-B where it woul require it to rule upon international llaw rights and obligations of State C and state C had NOT given its consent to this happening by i) becoming a party to the case, or ii) making an optional clause declaration  East Timor: Indonesia had NO wish to become a party to the case AND, unlike Australia, could NOT be brought before the court under Article 36(2) as it had NOT made an optional clause declaration o Where third party wishes to participate in a case without becoming a party to it: may become a party with the consent of other party (treaty, Article 36(2), ad hoc by special agreement, Article 62(1) or Article 63)  Article 62: state can submit request if has legal interest affected by decision in a case  El Salvador v Honduras: Nicaragua given permission to intervene under Art 62 becaue decision in favour of Hondurans would equally affect legal interests of Nicaragua  No need for a jurisdictional link (capacity to be party to case itself) to be granted permission to intervene – sufficient to simply show affected legal interest o Burden of proof on state seeking to intervene to identify the legal interest it considered may be affected, and showth way in which it would be affected)  Intervention under Article 62 is a matter for the court – NO RIGHT to intervene; parties may only seek to persuade the court to adopt the view that they may intervene  Article 63: applies where state is a party to the treaty being interpreted by the court  Court must first decide whether it qualifies (denied in Nicaragua, granted in Whaling in the Antarctic) Provisional measures in contentious litigation: (LaGrand, Article 41) o Question of whether the indication of provisional measures was legally binding and whether the US had complied with it (German citizens execution case)  YES binding (used all sources of interpretation referred to in VCLT including preparatory work; did not contradict conclusions of bindingness) – related to idea that parties in a case must abstain from any measure capable of exercising a prejudicial effect… which might aggravate or extend the dispute

o Thirlway: criticism: in light of travaux preparatoires and the general trend of interpretation of the text in practice, Court’s view of Article 41 may be regarded as revolutionary  Wonders whether this will have negative influence on advance acceptance of jurisdiction, increasing temptation for states to commence proceedings on shaky jurisdictional foundation in the hope of getting at least the short-term benefit of binding order for provisional measures o Circumstances in which provisional measures can be indicated before the Court’s jurisdiction has been established to hear the merits of a case:  Difficulty: find a rule that properly takes account of both the fact that the Court may ultimately decide that it lacks jurisdiction to hear the case VS the fact that the parties’ rights may be irreparably damaged before decision re jurisdiction is taken  Genocide Convention: Court need NOT satisfy itself that it has jurisdiction BUT MUST APPEAR prima facie to have a basis on which jurisdiction might be established  4 requirements for indication of provisional measures:  I) prima facie jurisdiction  II) existence of a link between the provisional measures requested and the rights subject to the main proceedings  III) urgency – must be real and imminent risk of irreparable prejudice to the rights in dispute before the Court has delivered its judgment  IV) rights asserted by the party must be at least plausible (Belgium v Senegal) o Generally states have NOT respected provisional measures against them – Armed Activities (Uganda held NOT to have complied with an order to refrain from any action that would aggravate or extend dispute before the Court)  Oda: have hardly any practical effect Jurisdictional reservations/exceptions: - Matters of domestic jurisdiction - Time limits and reservations ratione temporis (Interhandel) o Determining the critical date: Right of Passage:  Facts or situations to which regard must be had are those with regard to which dispute has arisen (ONLY those which must be considered as being the SOURCE of the dispute, those which are its REAL CAUSE)  It is true that a dispute may presuppose the existence of some prior fact/situation, but it does NOT follow that the dispute arises in regard to that situation/fact  Situations/facts which are the source of the dispute ONLY are the ones to be taken into account for purpose of applying Delaration accepting the jurisdiction of the Court - Reservation of past disputes o Common; involves states that want to exclude disputes already existing at the time they make their declaration o Reservation may be extended using the ‘Belgian formula’

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Limits the acceptance of compulsory jurisdiction to disputes arising after a certain date (exclusion date) + situations or facts giving rise to that dispute must be subsequent to that date Heavily used in practice BUT criticized:  Lauterpacht: restrictive clause of considerable indefiniteness; alarmingly comprehensive; many arbitration cases would not have been within jurisdiction if past events were excluded  Hambo: disputes take a long time to mature; there are often lengthy dispute negotiations that take place before it is decided that a conflict is concrete enough to be a claim before an international tribunal; therefore Belgian formula and reservation of past disputes poses problem ADVISORY JURISDICTION

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Article 65(1), Article 68 Locus Standi: o Article 96 of the UN Charter: GA and SC are authorised by the Charter to request opinions o States may NOT request advisory opinions, BUT they are permitted (along with international organisations) to participate in proceedings before the court (Article 66, ICJ Statute) Bindingness: NOT binding in law o Have, over the years, usually been accepted and acted upon by states concerned o Provision can be made in advance for opinion to be binding (“opinion rendered by the Court shall be accepted as decisive by the parties”) When to request an AO: specific disputes or situations (South-West Africa), interstate disputes referred to Court without the consent of all the parties (Wall), general and abstract questions (Reservations) o Controversial bc many of the requests originate in actual disputes Objections re subject matter of request: discretionary refusal (Eastern Carnelia) o Eastern Carnelia: only case in which the Court declined, in the exercise of its discretion, to give an opinion that fell within its jurisdiction. USSR had objected and refused to participate in the proceedings (opinion brought by Council of the LON on interpretation of a peace treaty between Finland and USSR that bore upon a dispute bw them on status of Eastern Carnelia). Court concerned that it would, in effect, be deciding dispute without the consent of one of the parties and without its account on the facts  Court therefore refused juris on basis that requesting organ NOT competent to seek an opinion in the circumstances (NO state can be compelled to submit disputes to tribunal w/o its consent, and USSR was not bound by the Covenant)  Distinguished in Namibia, Western Saraha, Wall: situations involved did NOT constitute interstate dispute, and political organ making request concerned in the exercise of its own functions under the Charter (NOT settlement of particular dispute)

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Article 96(2): Objections re subject matter of request: jurisdictional grounds (plea of domestic jurisdiction – Peace Treaties; WHO refused opinion on legality of nuclear weapons bc not within scope of activities of WHO, BUT opinion given on same issue to GA) o Refusal to give opinion in WHO Nuclear Weapons case different from Eastern Carnelia in that it was based on jurisdictional grounds o Court held question did NOT fall within the scope of the WHO’s activities, as required by Art 96(2) when question put to Court by authorised specialised agency  Question put to court surrounded legality, rather than effects, of use of nuclear weapons (matter that did NOT fall within WHO’s remit) o Nuclear Weapons: only compelling reasons would justify the Court refusing a request Article 65: issue re jurisdiction and politics: o Statute refers to “any legal question – however controversial and far reaching its implications, issues of treaty interpretation arising in context of the Charter ...