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ICJ Jurisdiction

The document outlines the jurisdiction of the International Court of Justice (ICJ). It discusses that only states can be parties to cases before the ICJ. States must consent to the ICJ's jurisdiction, typically through a special agreement, forum prorogatum doctrine, compromissory clause, or optional clause declaration. The document also examines advisory jurisdiction and notes that while opinions are non-binding, the ICJ will generally not refuse legitimate requests from authorized UN bodies.

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107 views12 pages

ICJ Jurisdiction

The document outlines the jurisdiction of the International Court of Justice (ICJ). It discusses that only states can be parties to cases before the ICJ. States must consent to the ICJ's jurisdiction, typically through a special agreement, forum prorogatum doctrine, compromissory clause, or optional clause declaration. The document also examines advisory jurisdiction and notes that while opinions are non-binding, the ICJ will generally not refuse legitimate requests from authorized UN bodies.

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nitya saxena
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JURISDICTION OF THE ICJ

Introduction: About the ICJ


• ICJ- est. by the Charter; ‘principal judicial organ’ (Art. 92 of the UN
Charter, Art. 1 of the ICJ Statute); functions in accordance with the ICJ
Statute
• Organization of the Court (Arts. 2-33)
• 15 Judges
• Elected by the General Assembly and by the Security Council (independent
elections in both GA and SC) from a list of persons nominated by the national
groups in the Permanent Court of Arbitration (PCA)
• Members elected for 9 years; eligible for re-election
• Term of 5 judges expires every 3 years
• Election of President and Vice-President for 3 years; may be re-elected
• Appointment of Registrar
• President and Vice-President reside at the seat of the Court
• Full Court shall sit; but quorum of 9 judges sufficient to constitute the Court
• Court can form chambers dealing with specific issues- Arts. 26-29
Legal Dispute before the Court
• Art. 36 (2), Statute: Matter brought before it should be a legal dispute
• Dispute: “disagreement over a point of law or fact, conflict of legal views or
of interests between 2 persons” [Mavrommatis Palestine Concessions case,
PCIJ, 1924]
• While political factors may be present in a legal dispute, Court is only
concerned to establish that the dispute in question was a legal dispute to
be settled in accordance with International law
• Whether there exists an int’l dispute is a matter for objective
determination by the Court, taking into account the application as a
whole/arguments/other documents etc.
• The problem of concurrent jurisdiction (other organs of UN may be dealing
with the issue) may arise; but the Court has clarified the position. Court
has functions of a legal nature. Other organs could complement it.
• [Cameroon v. Nigeria (Provisional Measures)]: Court may indicate provisional
measures at the same time as UN Sec-Gen is organising a fact-finding mission to
investigate the same events
JURISDICTION
• ‘Seisin’: The way in which the Court’s jurisdiction is first engaged
• Question relating to the establishment of jurisdiction is something for
the Court to decide
• [Qatar/Bahrain case (1995)]- “as an act constituting proceedings, seisin is a
procedural step independent of the basis of jurisdiction invoked”
Who may bring disputes before the Court? (COMPETENCE)

1. ‘States’ as parties only; States parties to the Statute only (Arts. 34 and
35(1) respectively)
• All members of UN are ipso facto parties to the Statute (Art. 93(1))
2. States not parties to the Statute to which the Court may be open (Art. 35
(2))
• SC Res 9 (1946)- access to ICJ possible for State not party to Statute if deposited a
declaration with the Registrar
• Particular declaration: (Albania; Corfu Channel Case 1949)
• General declaration : (Germany; North Sea Continental Shelf Case 1969)
3. Non-member of UN may become party to Statute on certain conditions
(Art. 93 (2), UN Charter)
• Eg- Switzerland; Japan, Liechtenstein, Nauru and San Marino (before becoming
Members)
CONTENTIOUS JURISDICTION: -Based on Consent of parties
Art. 36 (1)
• Special Agreement/Compromis
• Doctrine of Forum prorogatum (“Prorogated jurisdiction”)
• Corfu Channel case (1949)
• Certain Criminal Proceedings in France (Republic of the Congo v. France)
(2003)
• First time, since the adoption of Article 38(5) of the Rules of Court in 1978, that a State
thus accepted the invitation of another State to recognize the jurisdiction of the Court to
entertain a case against it
• Compromissory Clause
• Nicaragua v. U.S. (1986) [Art. XXIV of U.S.-Nicaragua Treaty of Friendship,
Commerce and Navigation, 1956]
• Nicaragua v. Honduras (1988) [Art. 31 of Pact of Bogota, 1948]
Art. 36 (2)
• Nature of such Declarations: dual nature
• Unilateral and decisive
• Principle of reciprocity/consensual bond [Cameroon v. Nigeria (Preliminary
Objections) 1998 ICJ]
• Could be unconditional or could have conditions subject to reciprocity
(Art. 36 (3))
• Court has jurisdiction under Art. 36 (2) where Declarations of 2
parties in dispute meet at a common point (Doctrine of Lowest
Common Denominator)
Art. 36 (5)

2. Regarding Declarations made under Art. 36 (2) and still in force with
respect to ICJ [Art. 36 (5)]
• Aerial Incident (Israel v. Bulgaria) (1959)
• Israel invoked its Declaration of 1956 and the Bulgarian Decl. of 1921. Bulgarian
Declaration of 1921 under Protocol to Statute of the PCIJ- had been ratified by it but it
was not a signatory to the UN Charter at the 1945 San Francisco Conference
• Question before the Court- Whether Art. 36 (5) of the Statute is applicable to Bulgarian
Declaration of 1921?
• Reasoning of the Court- there was a fundamental difference between signatory States
and those who later made Declarations; Bulgarian Declaration lapsed, thus no
‘transformation’ effect; only new obligation could be created
• Decision- Court without Jurisdiction
ADVISORY JURISDICTION (Art. 65-68)
Art. 65
• Who can bring requests? : Art. 34 says that contentious jurisdiction is open
only to States parties. Thus, Advisory Jurisdiction is a special mechanism
for International Organizations, specialized agencies of the UN, and other
intergovernmental organizations and bodies.
• Nature of the question: Request should be based on a legal question
• Nature of the opinion: not binding
• General rule (earlier)- Court will not give advisory opinion if the party is not
represented
• Rule followed in the Status of the Eastern Carelia (1923)
• It can be said that the rule has been eroded over the years
• Interpretation of Peace treaties advisory opinion (1950)
• Bulgaria, Romania and Hungary were not members of the UN, according to them there was no
consent and Court could not give an advisory opinion
• Court said- “The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in
contentious cases. The situation is different in regard to advisory proceedings even where the
Request for an Opinion relates to a legal question actually pending between States. The Court's
reply is only of an advisory character: as such, it has no binding force. It follows that no State,
whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion
which the United Nations considers to be desirable in order to obtain enlightenment as to the
course of action it should take. The Court's Opinion is given not to the States, but to the organ
which is entitled to request it ; the reply of the Court, itself an "organ of the United Nations",
represents its participation in the activities of the Organization, and, in principle, should not be
refused” (p.10 of the Adv. Opinion, 1950) .
• Western Sahara advisory opinion (1975)
• Spain suggested that since it did not give its consent, Court should not give the advisory opinion
• Different from Eastern Carelia (Court said that Spain was a member of the UN, unlike Soviet Union
which was not a member of the League of Nations)
ADVISORY JURISDICTION (contd.)
• Art. 65- “Court may…advisory opinion..request” (thus, Court can refuse to give
an advisory opinion)
• Only once has the Court refused to give an advisory opinion in the Legality of the
use by State of nuclear weapons in armed conflict (1996)
• “In view of the health and environmental effects, would the use of nuclear
weapons by a State in war or other armed conflict be a breach of its obligations
under international law including the WHO Constitution?”
• Court said that there are three conditions which must be satisfied in order to
found the jurisdiction: (Court said that the first 2 conditions were satisfied; third
was not and hence refused to give the advisory opinion)
• Agency requesting the opinion must be duly authorized under the Charter of the UN
• Opinion requested must be on a legal question
• Question must be arising within the scope of the activities of the requesting agency
• Reasoning of the Court:
• “Question related not to the effects of use of nuclear weapons on health, but to the legality of the use of
such weapons in view of their effects on health and environment
• Competence of WHO to deal with these effects is not dependent on the legality of the acts that caused
them”
• ‘principle of specialty’- I.Os and such agencies possessed general powers but these were limited by
common interests of the States which had created them. WHO’s competence lay in the matters of public
‘health’ and questions concerning armament/disarmament, use of force etc lay outside its competence
This is the outline which you should preferably follow while studying
jurisdiction of the ICJ
• Art. 34-35 (States as parties)
• Art. 36(1)- Consent of parties
• Special Agreement
• Doctrine of Forum prorogatum
• Compromissory Clause
• Art. 36 (2) and Art. 36 (3) Compulsory Jurisdiction/Optional Clause
Declaration
• Unconditional Declaration/Condition of reciprocity
• Art. 36 (5)- ‘Transformation’ (Declarations under the Statute of the PCIJ and
still in force)
• Art. 36 (6)- Doctrine of Kompetenz-Kompetenz applicable to ICJ
• Art. 37
• Art. 65 (Advisory opinion)

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