THE JURISDICTION OF THE INTERNATIONAL COURT OF
JUSTICE: HOW EFFECTIVE IS IT?
Uluslararası Adalet Divanının Yargı Yetkisi: Ne kadar Etkili?
Mustafa KARAKAYA ⃰
ABSTRACT
The International Court of Justice (hereinafter may be referred as to the Court), established
to maintain peace and security, is the principal judicial organ of the United Nations.
The Court ‘has a central role to play in the promotion of the rule of law.’1 Nevertheless
it has always been criticised for its ineffectiveness in achieving international peace and
security, and some states’ failure to comply with its judgements. Its ineffectiveness may
in some part be related to the jurisdiction of the Court. In this study, it was attempted to
discuss the limits on the jurisdiction of the International Court of Justice.
Keywords: The International Court of Justice, the Jurisdiction of the Court, Contentious
Jurisdiction, Advisory Jurisdiction.
ÖZET
Birleşmiş Milletler’in temel yargı organı olan Uluslararası Adalet Divanı (Divan),
devletler arasındaki anlaşmazlıkların çözümünde ve uluslar arası barış ve güvenliğin
sağlanmasında önemli rol oynamaktadır. Divanın, hukukun üstünlüğünün sağlanmasında
kilit öneme sahip olduğu ifade edilmesine rağmen, uluslar arası barış ve güvenliğin
sağlanmasında başarısız olması ve bazı ülkelerin kendileri için bağlayıcı olan Divan
kararlarının uygulanması konusunda sıkıntı çıkarması dolayısıyla Divan sürekli olarak
eleştirilmektedir. Divanın bu başarısızlığının sebeplerinden biri olarak yargı yetkisi
gösterilebilir. Bu çalışmada Divanın yargı yetkisinin sınırları tartışılacaktır.
Anahtar Kelimeler: Uluslar arası Adalet Divanı, Divanın Yargı Yetkisi, Çekişmeli
Yargı Yetkisi, İstişari Görüş.
∗∗∗
INTRODUCTION
The International Court of Justice, established to maintain peace and security,
is the principal judicial organ of the United Nations. It is the only international
court that has a universal character of general jurisdiction on all kinds of
legal disputes between members of the United Nations.
⃰
1
Judge, Ministry of Justice of Turkey, Directorate General for International Law and Foreign Relations
Statement of Judge Hisashi Owada (President of the International Court of Justice) before the United
Nations Genaral Assembly, 29 Oct. 2010.
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The Jurisdiction of the International Court of Justice: How Effective is It?
Mustafa KARAKAYA
The Court ‘has a central role to play in the promotion of the rule of law.’2
Nevertheless it has always been criticised for its ineffectiveness in achieving
international peace and security and some states’ failure to comply with its
judgements. In order to easily understand the Court and its performance and
to discuss the problems it has, the jurisdiction of the Court has a vital role.
The starting point for any discussion of the effectiveness of the Court must be
an identification of the jurisdiction of the Court. Only after this has been done
can any intelligent assessment be made as to the performance of the Court.
The objective of this study is to discuss the limits on the jurisdiction of the
International Court of Justice. In this respect, in this paper, after briefly
examining the International Court of Justice, we will describe the provisions
which define and limit the jurisdiction of the Court in general, and engage
in a discussion of the types of jurisdiction. In doing so, we will make use of
some important cases of the Court.
I. THE INTERNATIONAL COURT OF JUSTICE
144
The International Court of Justice, which was established by the Charter
of the United Nations (UN) to maintain peace and security is the principal
judicial organ of the UN.3 In this way, the Court becomes an integral part of
the UN, unlike the relationship between the Permanent Court of International
Justice (PCIJ)4 and the League of Nations.5 The Court was founded in 1946
and is located in the Hague, Netherlands. It is based on the Statute of the
PCIJ.6
The Court is composed of fifteen independent judges from different countries.
The members of the Court are elected for nine years by the General Assembly
and by the Security Council.7
2
3
4
5
6
7
Ibid.
Article 1 of the Statute of the International Court of Justice; and also Articles 1 and 7 of the Charter
of the United Nations.
‘The establishment of the Permanent Court of International Justice (PCIJ), the predecessor of the
International Court of Justice, was provided for in the Covenant of the League of Nations. It held
its inaugural sitting in 1922 and was dissolved in 1946. The work of the PCIJ, the first permanent
international tribunal with general jurisdiction, made possible the clarification of a number of
aspects of international law, and contributed to its development.’ See: International Court of
Justice, ‘Permanent Court of International Justice’, available at: <http://www.icj-cij.org/pcij/index.
php?p1=9> [accessed 21 August 2013].
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands, Selecting International Judges:
Principle, Process, and Politics, (Oxford University Press, 2010), p. 18.
Article 92 of the Charter of the United Nations.
Articles 2-4 and 13 of the Statute of the International Court of Justice.
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There are lots of judicial bodies in the international and regional arena,
such as the International Criminal Court, World Trade Organization Dispute
Settlement Body, International Tribunal for the Law of the Sea, African
Court of Justice, European Court of Human Rights, the European Court
of Justice and so on. However, only the International Court of Justice has
universal character of general jurisdiction.8 In other words, other courts deal
either with specific issues or issues between individuals and states, but the
International Court of Justice has the general authority to deal with all kinds
of legal disputes between states.
II. THE JURISDICTION OF THE INTERNATIONAL COURT OF
JUSTICE
The Court’s jurisdiction is twofold. Firstly, the Court decides upon disputes
freely submitted to it by states in the exercise of their sovereignty. Secondly,
the Court may give an advisory opinion on any legal question at the request
of General Assembly, the Security Council or all other organs of the United
Nations and agencies authorized by the General Assembly.9 To put it shortly,
the Court has two types of jurisdiction. One is contentious jurisdiction and
the other is advisory jurisdiction.10
The Court has also exercised appellate jurisdiction on the basis of the
relevant provisions of the Statute of the Administrative Tribunal of the
International Labour Organisation (ILOAT) and the Statute of the United
Nations Administrative Tribunal (UNAT), but neither the Charter of the
United Nations nor the Statute of the Court has any specific provisions for
a system of judicial appeal to the Court.11
A. Contentious Jurisdiction
Article 34/1 of the Statute of the Court provides that only states may be
parties in cases before the Court. This provision prohibits individuals and
international organisations recourse to the Court, save in a certain degree
some of the latter may be able to apply for advisory opinions.12
8
9
10
11
12
Report of the ICJ, (2012), p. 1, available at: <http://www.icj-cij.org/court/index.php?p1=1&p2=8>
[accessed 21 August 2013].
Ibid, pp. 1-2.
UN Conference on Trade and Development, Dispute Settlement, (UN, 2003), p. 11.
Mohamed Sameh M Amr, The Role of the International Court of Justice as the Principal Judicial Organ
of the United Nations, (Kluwer Law International, 2003), p. 346.
Malcolm N. Shaw, International Law, (6th edn, Cambridge University Press, 2008), p. 1072.
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Article 35/1 of the Statute of the Court declares that the Court is open to
the states parties to the Statute. All of the members of the UN are, under
Article 93/1 of the Charter of the United Nations, ipso facto parties to the
Statute of the Court. Also a state which is not a member of the UN may
become a party to the Statute of the Court on conditions to be determined
in each case by the General Assembly upon the recommendation of the
Security Council.13 In addition, a state which is neither member of the UN
nor a party to the Statute of the Court may have been permitted to have
recourse to the Court, pursuant to the October 1946 Security Council
Resolution 9.14 As of July 2012, there are 193 states who are parties to the
Statute of the Court. (the 193 States Members of the United Nations).15
However, becoming a party to the Statute of the Court doesn’t mean that the
state accepts the jurisdiction of the Court. It is one of the two prerequisites
to become a party before the Court. The other is the consent of the states
to the jurisdiction of the Court. If states have not given their consent, the
Court will not exercise its jurisdiction.16
146
States can give their consent in a variety of ways. Consent can be given
before the dispute arises by means of a compromissory clause in a treaty
or a declaration under Article 36/2 of the Court’s Statute. On the other
hand, after a dispute has arisen, consent can be given by means of a special
agreement (compromis) between the parties, or in response to the unilateral
recourse of a dispute to the Court.17 Moreover, in the event of a dispute as
to whether the Court has jurisdiction, the matter is settled by the decision
of the Court.18
1. Special Agreements (Compromis)
Article 36/1 of the Statute of the Court defines that the jurisdiction of
the Court comprises all cases which the parties refer to it. These kind of
cases normally come before the Court by notification to the Registry of
13
14
15
16
17
18
Article 93/2 of the Charter of the United Nations and Article 35/2 of the Statute of the International
Court of Justice.
James Crawford, & Tom Grant, ‘International Court of Justice’, in: Thomas G. Weiss & Sam Daws,
(Ed.) The Oxford Handbook on United Nations, (Oxford University Press, 2001), p.195. For a detailed
information see: Shaw ‘International Law’, p. 1072.
Report of the ICJ, (2012), p. 12.
Cesare P. R. Romano, ‘International Justice and Developing Countries: A Qualitative Analysis’, The
Law and Practice of International Courts and Tribunals Vol:1, 2002, p. 542.
John G. Merrills, International Dispute Settlement, (5th edn, Cambridge Books Online, 2011) p. 117.
Article 36/6 of the Statute of the International Court of Justice.
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an agreement known as a special agreement (compromis) and concluded
by the parties specially for this purpose.19
The most widely used method of giving consent to the jurisdiction of the
Court after a dispute has arisen is the negotiation of a special agreement. As
in the case of arbitral compromis, such an agreement provides the parties with
an opportunity to define the issues in dispute and, subject to the provisions of
the Statute, to indicate the basis on which the Court should give its decision.
This flexibility makes special agreements attractive to states as a way of
benefiting the Court, and as a result they are applied quite regularly. For
example, concerning the dispute on the construction and operation of the
Gabcikovo-Nagymaros Barrage system between Hungary and Slovakia,
these two countries concluded a special agreement and submitted it to the
Registry of the Court. Afterwards, the Court was able to decide on the
Gabcikovo-Nagymaros case.20
2. Optional Clause Declarations
Another way of submitting to the Court’s jurisdiction in advance is by a
unilateral declaration under Article 36/2 of the Court’s Statute, known as the
‘optional clause’.21 This article provides that states parties to the Statute may
recognize as compulsory ipso facto and without special agreement in relation
to any other state accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning (a) the interpretation of a treaty, (b) any question
of international law, (c) the existence of any fact which, if established, would
constitute a breach of an international obligation, (d) the nature or extent of
the reparation to be made for the breach of an international obligation.
Article 36/3 explains that a state making a declaration accepting the Court’s
jurisdiction in advance may do so ‘unconditionally or on condition of
reciprocity on the part of several or certain States, or for a certain time.’
Therefore a state party to the Statute can choose to accept the Court’s
compulsory jurisdiction in relation to any other state which does the same.
That is to say, it is not nocessary to have a previous aggrement in order for the
Court to have jurisdiction to try a case between two parties which have both
made a declaration under Article 36/2 of the Statute of the Court. The Court
will be competent to handle a case brought to it by only one of the parties.22
19
20
21
22
International Court of Justice, ‘Basis of the Court’s Jurisdiction’, available at: <http://www.icj-cij.
org/jurisdiction/index.php?p1=5&p2=1&p3=2> [accessed 21 August 2013]
Merrills, International Dispute Settlement, p. 118.
Ibid., pp. 117-118.
Niklas Kebbon, ‘The World Court’s Compulsory Jurisdiction under the Optional Clause - Past, Present
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A substantial number of the states accepting compulsory jurisdiction under
Article 36/2 of the Statute of the Court have decided to include the condition
of reciprocity; time limits on acceptance are also common; and, in some
cases, further qualifications have been attached to the reservations.23
The optional clause has the mission of creating a universal system for
compulsory jurisdiction for the solution of disputes between states and
the choice to adhere to the Optional Clause system has been left to the
discretion of the individual states with the idea that the majority of members
of the international community would do so. However, it didn’t take place
and what is worse, in addition to the limited number of acceptances, the
states who accepted the compulsory jurisdiction of the Court often riddled
their declarations with extensive reservations and thus further limited the
jurisdiction of the Court.24
148
Since declarations function in such a way as treaties, their efficiency in
practice depends on how many states are prepared to participate in the
optional clause system and the terms on which they are willing to do so.25
There has been, relatively, a decline in the number of states participating in
the optional clause system. Some states have allowed their declarations to
expire or have terminated them. The declarations recognizing compulsory
jurisdiction of the Court deposited by Turkey, Brazil, Bolivia, Guatemala and
Thailand were made for specific periods of time and they did not renew their
declarations after they had expired. South Africa terminated its declaration
in 1967; France in 1974; and the United States and Israel in 1985. The
Government of the People’s Republic of China notified that it does not
recognize the statement made by the defunct Chinese government in 1946 in
accordance with Article 36/2 of the Statute concerning the acceptance of the
compulsory jurisdiction of the Court. Thus, apart from the United Kingdom,
none of the permanent members of the Security Council currently accepts
the Court’s compulsory jurisdiction.26 As of July 2012, a total of 67 States
have made a declaration (some with reservations) recognizing as compulsory
the jurisdiction of the Court, as contemplated by Article36/2 of the Statute.27
23
24
25
26
27
and Future’, Nordic Journal of International Law, 58, 1989, p. 258.
Crawford & Grant, ‘International Court of Justice’, p. 196.
Kebbon, ‘The World Court’s Compulsory Jurisdiction’, p. 257.
Merrills, International Dispute Settlement, pp. 117-118.
Crawford & Grant, ‘International Court of Justice’; see also United Nations Treaty Collection, available
at: <http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=I-4&chapter=1&lang=en#9>
[accessed 21 August 2013].
Report of the ICJ, (2012), p.12.
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Although Article 36/3 provides that reservations may be made on condition
of reciprocity or for a certain period of time, it does not say that only these
matters are the proper object of a reservation, and in practice different types of
reservations have been made. For example, Suriname’s reservation excludes
disputes which have arisen or may arise with respect to or in relation with
the borders of the Republic of Suriname.28
Limitations on a state’s acceptance of the Court’s jurisdiction are sometimes
provide a state with protection in the sense that they can prevent certain
claims from being brought against it. But they have a negative effect as
well, because they may prevent the reserving state from taking disputes
to the Court in which it could appear as the plaintiff. For example, in the
Certain Norwegian Loans case, the Court decided that it had no jurisdiction
to hear this case filed by France against Norway because France had made a
reservation and excluded ‘differences relating to matters which are essentially
within the national jurisdiction as understood by the Government of the
French Republic.’ Although Norway had not made such reservation, the
Court held that Norway was entitled to invoke the reservation in the French
declaration and remove the case from the Court’s competence.29
A state declares in advance consent to be bound by the Court’s jurisdiction
in terms of all or certain categories of disputes. When a dispute that falls
within the scope of that consent is submitted to the Court, the state finds
itself subject to the Court’s jurisdiction. Giving their consent in advance
with respect to all or certain categories of disputes, including future disputes,
expose states of unpredictability and vulnerability. For instance, when the
United States accepted compulsory jurisdiction of the Court under Article
36/2 of the Statute in 1946, it was not possible for the United States to
predict the deterioration of its relations with Nicaragua. But the relations
had deteriorated in time and in 1984 Nicaragua decided to file a suit against
the United States before the International Court of Justice.30
The Nicaragua case is a good example of the Court’s jurisdiction under
Article 36/2 of the Statute. Since the decision of the Court put not only the
United States but also the Court on trial, it would be useful to examine this
matter in some detail.31
28
29
30
31
Crawford & Grant, ‘International Court of Justice’, p. 195.
Merrills, International Dispute Settlement, p. 120.
Stanimir A. Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice: How
Compulsory Is It?’, Chinese Journal of International Law, 2006, Vol. 5, No. 1, p. 34.
Joyce Fernando, ‘The International Court of Justice: A Critique of Its Role’, Sri Lanka Journal of
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The United States had good relations with the Nicaraguan Government
until the Sandinista movement took control of the country in 1979. The new
Nicaraguan Government’s relations with the U.S. rapidly deteriorated. The
U.S. alleged that the new Government was encouraging insurgent movements
in the region. In 1981, ‘Contras,’ opponents of the Nicaraguan Government
(Sandinista), started a guerilla insurgency movement. Its activities were
operated from bases in neighbouring states, and funded and assisted by
the United States. Moreover, several Nicaraguan harbours were mined by
CIA personnel. Nicaragua asserted that the United States support for the
Contras constituted an unlawful use of force against it, as well as unlawful
intervention in its internal affairs.32
150
On 09 April 1984 Nicaragua filed an application instituting proceedings
against the United States before the International Court of Justice relying on
the United States’ acceptance of the Optional Clause of the Court in 1949 and
Treaty of Friendship, Commerce and Navigation between the United States
of America and the Republic of Nicaragua signed in 1956. But three days
before, on 06 April 1984, the United States decided to make a reservation to
the optional clause and excluded cases involving disputes with any Central
American state or related to events in Central America.33
The United States then claimed that the Court had no jurisdiction and that the
application was inadmissible. But on 26 November 1984, the Court rejected
the allegations of the United States34 and decided that ‘it has jurisdiction
to entertain the Application filed by the Republic of Nicaragua on 9 April
1984, on the basis of Article 36, paragraphs 2 and 5, of the Statute of the
Court’ and that ‘it has jurisdiction to entertain the Application filed by the
Republic of Nicaragua on 9 April 1984, in so far as that Application relates
to a dispute concerning the interpretation or application of the Treaty of
Friendship, Commerce and Navigation between the United States of America
and the Republic of Nicaragua signed at Managua on 21 January 1956, on
the basis of Article XXIV of that Treaty’35 Thereupon the United States
withdrew from the proceedings in the Nicaragua Case. In its statement of
32
33
34
35
International Law, 27, 1992, p .30.
James Crawford, ‘Jurisdiction and Applicable Law’, Leiden Journal of International Law, 2012, 25(2),
p. 472.
Ibid., p. 472.
Ibid.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, para. 113.
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18 January 1985 concerning withdrawal from proceedings in the Nicaragua
case, the United States government manifested the long-term implications
for the Court itself as follows:
“We are profoundly concerned also about the long-term implications for the
Court itself. The decision of November 26 [on jurisdiction and admissibility]
represents an overreaching of the Court’s limits, a departure from its tradition
of judicial restraint, and a risky venture into treacherous political waters. We
have seen in the United Nations, in the last decade or more, how international
organizations have become more and more politicized against the interests
of the Western democracies. It would be a tragedy if these trends were to
infect the International Court of Justice. We hope this will not happen,
because a politicized Court would mean the end of the Court as a serious,
respected institution. Such a result would do grievous harm to the goal of
the rule of law.
We will continue to support the International Court of Justice where it acts
within its competence - as, for example, where specific disputes are brought
before it by special agreement of the parties.… Nonetheless, because of our
commitment to the rule of law, we must declare our firm conviction that the
course on which the Court may now be embarked could do enormous harm
to it as an institution and to the cause of international law.”36
In addition to this, in that period, the United States Ambassador to the UN,
Jeanne Kirkpatrick described the International Court of Justice as a “semilegal, semi-juridical, semi-political body, which nations sometimes accept
and sometimes don’t.”37
A few months later, in October 1985, the United States gave notice that it
had decided to withdraw its acceptance of compulsory jurisdiction under
Article 36/2 of the Statute of the Court.38
The court held that the United States had violated the rules of international law
and illegally intervened in Nicaragua’s domestic affairs. However the United
States refused to recognise the Court’s decision and vetoed a Security Council
resolution that would have enforced the judgement. Consequently the authority
of the Court and the system of the optional clause were severely damaged.
36
37
38
‘US Statement Concerning US Withdrawal from the Nicaragua case’, 18 January 1985.
China Mieville, Between Equal Rights: A Marxist Theory of International Law, (Brill Academic
publishers, 2005), p. 298.
United Nations Treaty Collection, available at: http://treaties.un.org/Pages/ViewDetails.
aspx?src=IND&mtdsg_no=I-4&chapter=1&lang=en#9 [accessed 21 August 2013]
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Unilateral declarations are made erga omnes, once the consent is given, every
declarant state must be deemed to take into account the possibility of finding
itself subjected to the obligation of under Article 36/2 of the Statute of the
Court. This is known as a “sitting duck” or “hit-and-run” problem. A good
example of this idea of a sitting duck problem is the Case Concerning the
Land and Maritime Boundary between Cameroon and Nigeria. Cameroon
had given it’s consent to the jurisdiction of the Court on 3 March 1994, and
filed an application on 29 March 1994. Nigeria, which had given it’s consent
earlier, asserted that it had been subjected to a “trial by ambush.” 39
Nigeria’s allegations was not accepted by the Court and it stated that:
152
“Any State party to the Statute, in adhering to the jurisdiction of the Court in
accordance with Article 36, paragraph 2, accepts jurisdiction in its relations
with States previously having adhered to that clause. At the same time, it
makes a standing offer to the other States party to the Statute which have
not yet deposited a declaration of acceptance. The day one of those States
accepts that offer by depositing in its turn its declaration of acceptance,
the consensual bond is established and no further condition needs to be
fulfilled.”40
What can be clearly seen from the Court’s decision is that if a state deposits
a declaration under Article 36/2, the state becomes a “sitting duck.”41
3. Cases provided for in treaties and conventions
Article 36/1 of the Statute of the Court alleges that the jurisdiction of the
Court also comprises all matters specially provided for… in treaties and
conventions in force. Some treaties contain compromissory clause which
provides for dispute resolution by the Court. States express their consent to
the jurisdiction of the Court by becoming parties to such treaties, and in these
cases no further consent is required and any state party to such a treaty can
submit to the Court a dispute with another state party without any special
agreement or ad hoc consent of the other side.42 As of July 2012, there are
currently in force around 300 multilateral and bilateral conventions providing
for the jurisdiction of the Court.43
39
40
41
42
43
Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice’, pp. 34-35.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), ICJ Reports
1998, p. 291, para. 25
Alexandrov,’The Compulsory Jurisdiction of the International Court of Justice’, pp. 34-35.
Ibid., p. 30.
Report of the ICJ, (2012), p. 12.
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Article 37 of the Statute of the Court states that whenever a treaty or convention
in force provides for reference of a matter to a tribunal to have been instituted
by the League of Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the Statute, be referred to the International
Court of Justice. Thus, other treaties and conventions concluded earlier and
conferring jurisdiction upon the Permanent Court of International Justice must
be added to these treaties.
On the other hand, Article 102 of the Charter of the United Nations provides
that ‘no party to any such treaty or international agreement which has not
been registered in accordance with the provisions of paragraf 1 of this Article
may invoke that treaty or agreement before any organ of the United Nations.’
This means that, since the Court is one of the organs of the United Nations,
this provision entitles the Court to refuse to entertain jurisdiction based on an
unregistered treaty invoked before the Court for such purpose.
As was previously mentioned, in the Nicaragua case, the Court decided to
entertain the application on the basis of the relevant provisions of Treaty
of Friendship, Commerce and Navigation between the United States and
optional clause of the Statute of the Court. Then the United States withdrew its
acceptance of the optional clause, and hence this system was severely damaged.
The Nicaragua case, on the other hand, had affected negatively the quality and
the quantity of treaties including compromissory clauses. In this respect, states
have continued to make provision to apply to the Court in dispute-settlement
clauses in treaties, but the rate of doing so is less than before and they are
qualified with some reservations. According to information on the Court’s
website, at least 35 treaties including compromissory clauses have entered
into force since the Nicaragua case such as Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (1988), Convention
on Biological Diversity (1992), Chemical Weapons Convention (1993),
International Convention for the Suppression of Terrorist Bombings (1997),
UN Convention against Corruption (2003) and so on.44 The number of such
treaties after the Nicaragua case is by far lower than earlier decades. Generally,
treaties with compromissory clauses drafted after the Nicaragua case have
generally been framed to enable states to withhold consent from the Court’s
jurisdiction, while earlier treaties didn’t always have such an explicit opt-out
feature.45
44
45
International Court of Justice, ‘Treaties’, available at: <http://www.icj-cij.org/jurisdiction/index.
php?p1=5&p2=1&p3=4> [accessed at 21 August 2013].
Lori Damrosch, ‘The impact of the Nicaragua case on the Court and Its Role: Harmful, Helpful or
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As expected, the United States has constantly refused to give its consent to
the Court’s jurisdiction whenever it has become party to treaties after the
Nicaragua case, or it has made a reservation to the relevant article where the
clause in question does not explicitly provide for an opt-in/opt-out mechanism.
For example, the United States made a reservation against the compromissory
clause of Article IX of the Genocide Convention in 1988 and against Article
22 of the Convention on the Elimination of Racial Discrimination in 1994.
In both treaties the United States expressed that its specific consent would
be required in each case as a condition of the jurisdiction of the Court. It
also invoked the opt-out clause of the Convention against Torture in 1994.46
Moreover, in 2005, the United States denounced the Optional Protocol to
the Vienna Convention on Consular Relations Concerning the Compulsory
Settlement of Disputes, by which Germany47, Paraguay48 and Mexico49 each
filed an application against the United States before the Court regarding the
consular rights of their nationals on death row in the United States.50
154
Most recently, Colombia has withdrawn from a treaty that recognises the
Court’s rulings over disputes between parties. As a result of the territorial
and maritime dispute between Colombia and Nicaragua, in 2001 Nicaragua
filed an application against Colombia before the Court.51 Colombia stated his
objections to the jurisdiction of the Court. However, the Court concluded that
it had jurisdiction under the Pact of Bogota (1948), a treaty by which Latin
American states recognise the jurisdiction of the Court. On 19 November
2012, the Court ruled to grant Nicaragua control of a large amount of the
surrounding waters and seabed. Colombia, however, rejected the judgement
of the Court and decided to withdraw from the Pact of Bogota.52
4. Forum Prorogatum
If the jurisdiction of the Court has not been recognised by the state at the
time when an application is filed against it, that state subsequently has the
46
47
48
49
50
51
52
In Between?’, Leiden Journal of International Law, 2012, 25(1), pp. 139-140.
Ibid, p. 140.
LaGrand (Germany v United States), ICJ, 2001.
Case Concerning the Vienna Convention on Consular Relations, (Para. v. U.S.), ICJ, 1998.
Avena and Other Mexican Nationals (Mexico v. United States of America), ICJ,2004.
Carsten Hoppe, ‘Implementation of LaGrand and Avena in Germany and the United States: Exploring
a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights’, European Journal
of International Law, 2007, 18(2), p.324
Territorial Dispute and Maritime Delimitation (Nicaragua v. Colombia), ICJ, 2001.
<http://www.lexology.com/library/detail.aspx?g=f9f49643-0563-40d7-b6cb-9da8efb8ea18>
[accessed 21 August 2013].
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option to accept specific jurisdiction to enable the Court to rule over the
case: In this way, the Court has jurisdiction as of the date of acceptance
of the jurisdiction of the Court.53
Article 38/5 of the Rules of Court firstly allows the Court to transmit to
a State an application made against it. The Court does not have authority
to take any action in the proceedings until consent to its jurisdiction on
the specific dispute has been explicitly given by the respondent State. The
state which is asked to consent to the Court’s jurisdiction is entirely free
to respond as it sees fit.54 For Example, on December 2002 the Republic
of Congo filed an application against France, alleging that France violated
the principle of sovereign equality and the criminal immunity of a foreign
head of state. The Republic of the Congo sought to found the jurisdiction
of the International Court of Justice, pursuant to Article 38/5 of the Rules
of Court, on the consent of France. France then stated that it ‘consented to
the jurisdiction of the Court to entertain the Application pursuant to Article
38/5 of the Rules of Court.55
By means of forum prorogatum, states do not need to conclude a special
agreement. It acts to provide states with an alternative means of accepting
the Court’s jurisdiction in a current dispute.56 The doctrine of forum
prorogatum provides an informal way for a state to express consent to the
Court’s jurisdiction.57
However, applying to forum prorogatum to establish the Court’s initial
jurisdiction may cause some anxiety in those states that guard against any
violation of their sovereignty or even any appearance thereof. The state
may resent being taken before the Court without its consent even though
the Court may not adjudicate upon the matter unless that state gives its
consent. The respondent may feel that its sovereignty is violated when it
is unilaterally arraigned before the Court without its consent to such an
eventuality. It seems that states consider the Court to be the ultimate stage
on which their sovereignty is showcased and they would only appear on that
53
International Court of Justice ‘Basis of the Court’s Jurisdiction.’
55
Sienho Yee, ‘Forum Prorogatum Returns to the International Court of Justice’, Leiden Journal of
International Law, 16, 2003, p. 702.
Merrills, International Dispute Settlement, p. 119.
Sienho Yee, ‘Forum Prorogatum and the Advisory Proceedings of International Court’, American
Journal of International Law, 2001, Vol.95(2), p. 381.
54
56
57
Vincent Pouliot, ‘Forum Prorogatum before the International Court of Justice, the Djibouti v. France
case’, Hague Justice Journal, Volume 3/Number3/2008, p. 31.
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stage on the condition of absolute equality and with the dignity appropriate
to sovereign states.58
Also the application of forum prorogatum causes abuse of the judicial
process by some states for political gains. The applicant may know that the
respondent would never accept its invitation to appear before the Court, but
nonetheless may file a unilateral application in order to gain undue publicity
in the international arena.59
Accordingly, forum prorogatum does not appear to have been widely
embraced by states, and from the Haya de la Torre case in 1951 until Certain
Criminal Proceedings in France in 2003, the Court did not appear to have
relied on this doctrine in any decision to establish its jurisdiction.60
156
At the last two cases on forum prorogatum, the respondent state was France and
the applicant states were Djibouti (the Djibouti v. France case) and Republic of
Congo (Certain Criminal Proceedings in France), former colonies of France.
France has not accepted the compulsory jurisdiction (optional clause) of the
Court. But when these two former colonies filed an application against France,
it decided to send it’s consent to the jurisdiction of the Court. Because these
cases were not too vital for France to resent it’s former colonies. Therefore, it
might be misleading to accept the consent of France as a resurgence of forum
prorogatum for the benefit of international justice.
5. The Court itself decides any questions as to its jurisdiction
Article 36/6 of the Statute of the Court provides that in the event of a dispute
as to whether the Court has jurisdiction, the matter will be settled by the
decision of the Court.
Since jurisdiction of the Court is based on consent shown by a legal act, there
is sometimes disagreement as to whether the parties have given the Court
the necessary competence. In this situation, the question of jurisdiction is
resolved by the Court, proceeding under the above mentioned article, which
confers what is known as the comp´etence de la comp´etence. For example,
in the Right of Passage case, India raised some objections based on the terms
of the parties’ respective optional clause declarations, but the Court rejected
them all and went on to decide the substantive issue.61
58
59
60
61
Yee, ‘Forum Prorogatum Returns to the International Court of Justice’, pp.706-707.
Ibid.
Ibid., p. 707
Merrills, International Dispute Settlement, p. 119.
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B. Advisory Jurisdiction
As previously mentioned, in addition to deciding on disputes between
states, the Court may also give an advisory opinion on any legal question.
Article 65 of the Statute of the Court provides that ‘the Court may give an
advisory opinion on any legal question at the request of whatever body may
be authorized by or in accordance with the Charter of the United Nations
to make such a request.’ Under Article 96 of the Charter of the UN, the
General Assembly or the Security Council may request that the Court give
an advisory opinion on any legal question. Also other organs of the United
Nations and specialized agencies may request advisory opinions of the Court
on legal questions arising within the scope of their activities. These organs
may at any time be authorized by the General Assembly. Some of them are
International Civil Aviation Organization, International Labour Organization,
International Monetary Fund, World Health Organization and so on.62 The
Court does not give any opinion to the states. It only gives advisory opinions
to the organ which is entitled to request it.63
The Court may give an advisory opinion.64 However, this is ‘more than an
enabling provision… The Statute leaves discretion as to whether or not it will
give an advisory opinion that has been requested of it, once it has established
its competence to do so.’65 Nonetheless, the Court has repeatedly stated that a
reply to a request for an opinion ‘in principle should not be refused.’ Because
the jurisdiction of the Court in advisory proceedings represents the Court’s
participation in the activities of the UN. Since its inception, the Court has
never refused, based on the discretionary power of the Court, to act upon a
request for an advisory opinion.66 In the case concerning Legality of the Use
by a State of Nuclear Weapons in Armed Conflict, the Court refused to give
the World Health Organization an advisory opinion67 on the grounds that
the request did not fall within the scope of the activities of the specialized
agency (WTO).68
62
63
64
65
66
67
68
Report of the ICJ, (2012), p. 12.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ, 8 July 1996, paras. 14-19.
Article 65 of the Statute of the International Court of Justice.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ, 8 July 1996, paras. 12-13
Ibid., para. 14.
The Legality of the Threat or Use of Nuclear Weapons case, Communique, ICJ, No:96/23, 8/07/1996,
p. 4.
Crawford & Grant,’International Court of Justice’, p. 198.
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The Court’s advisory jurisdiction does not derive from the specific consent
of states with respect to every dispute, but from a state’s general acceptance
of Article 96 of the Charter of the UN and Article 65 of the Statute of the
Court. Neither the absence of the concerned state’s consent does affect the
Court’s advisory jurisdiction nor the consent or agreement of the concerned
states can enlarge the Court’s advisory jurisdiction.69 In the Western Sahara
opinion, the Court pointed out that ‘its competence to give an opinion did not
depend on the consent of the interested States, even when the case concerned
a legal question actually pending between them.’ Similarly in the Israeli Wall
case70 the Court stated that ‘the lack of consent to the Court’s contentious
jurisdiction by interested States has no bearing on the Court’s jurisdiction
to give an advisory opinion.’71
158
Unlike contentious cases, the purpose of the advisory function is not to settle
disputes between states, but to offer legal advice to the organs and institutions
requesting the opinion.72 The Court’s practise of advisory jurisdiction is not
restricted to rendering opinions advising UN organs on their own course
of action. Nowhere in the Statute of the Court or the Charter of the United
Nations is there a requirement that an advisory opinion must be for the
internal use of the organ requesting the opinion. The only limitations are
that the opinion must be ‘on any legal question’ and requested by an organ
which is entitled to do it.73 In this regard, in the Israeli Wall case the Court
did not accept the view that it had no jurisdiction because of the political
character of a question put before it and held that:
“…the Court cannot accept the view, which has also been advanced in the
present proceedings, that it has no jurisdiction because of the ‘political’
character of the question posed. As is clear from its long standing jurisprudence
on this point, the Court considers that the fact that a legal question also has
political aspects…”74
69
70
71
72
73
74
Yee, ‘Forum Prorogatum and the Advisory Proceedings of International Court’, p .383.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, ICJ Reports 2004, p. 136.
Andrew L. Strauss, ‘Cutting the Gordian Knot: How and Why the United Nations Should Vest the
International Court of Justice with Referral Jurisdiction’, Cornell International Law Journal, 2011,
Vol. 44, No. 3, p. 634.
The Legality of the Threat or Use of Nuclear Weapons case, Communique, ICJ, No:96/23, 8/07/1996,
p.4.
Strauss, ‘Cutting the Gordian Knot’, p. 634.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, ICJ Reports 2004, p. 136. para. 41.
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Mustafa KARAKAYA
Under the Statute of the Court and the Charter of the United Nations, advisory
opinions of the Court have no binding effect. Nevertheless, in spite of its
non-binding effect, advisory opinions of the Court carry great legal weight
and moral authority. They are used as an instrument of preventive diplomacy
and to strengthen peaceful relations between states. They also have peacekeeping virtues.75 On the other hand, if the requesting organ decides to use
these advisory opinions in a provision of an international instrument, they
may have binding effect.76
CONCLUSION
In 1974, the General Assembly encouraged states to submit to the compulsory
jurisdiction of the Court, and provide in treaties for the submission of future
disputes to the Court. In 1992, former UN Secretary-General Boutros-Ghali
recommended that all Member States accept compulsory jurisdiction of the
Statute, without any reservation, before the year 2000. At the 60th anniversary
celebration of the Court in 2006, former Secretary-General Kofi Annan invited
‘all states that have not yet done so to consider recognizing the compulsory
jurisdiction of the Court’.77 Most recently at the 67th General Assembly
Plenary Meeting UN Secretary-General Ban Ki-moon pressed all states to
accept jurisdiction of the International Court of Justice.78 As understood from
the remarks of the Secretary-Generals of the UN, jurisdiction of the Court is
of great importance for the effectiveness of the Court, and the United Nations
has been the primary proponent of an effective Court.
On the other hand, when we look at the Court’s experience, a Statute without
limitations of jurisdiction is desperately utopian. Even in this case, the
compliance rate of decisions of the Court initiated by special agreement is
85.7 per cent, by treaty 60 per cent and by optional clause jurisdiction only
40 per cent.79
75
76
77
78
79
International Court of Justice, ‘Advisory Jurisdiction’, available at : http://www.icj-cij.org/jurisdiction/
index.php?p1=5&p2=2 [accessed 21 August 2013]
Peter H. F. Bekker, Commentaries on World Court Decisions: (1987-1996), (Kluwer Law International,
1998), p. 24.
Aloysius P. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court
of Justice’, European Journal of International Law, 2007, 18(5), p. 816.
United Nations General Assembly, press release available at: http://www.un.org/News/Press/
docs/2012/ga11290.doc.htm [accessed 21 August 2013]
Eric Posner & John Yoo, ‘Judicial Independence in International Tribunals’, California Law Review,
2005, Vol.93 No.1, p. 37.
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Hence, one should be forgiven for being skeptical about the jurisdiction
without limitation. Some practices of certain countries, as discussed in this
study, (such as withdrawing their consent, declaring the Court’s decision as
non-binding, rejecting to enforce the Court’s decisions and so on.) already
support this view.
∗∗∗
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