The International Court of Justice (ICJ)

The Court in brief Powers derive from UNCh Art. 92 Composition ICJ Statute As supplemented by Rules of the Court (ICJSt Art. 30) Composition Chambers The right of a separate opinion (Art. 57) Jurisdiction In contentious cases In advisory proceedings

Jurisdiction in contentious cases #1 Disputes between states only (Arts. 34-35) Jurisdiction may be conferred … By agreement (Art. 36 § 1) Agreement ad hoc Agreement ante hoc Agreement post hoc (= forum prorogatum) By assuming juridiction conferred on PCIJ (Art. 37)

Genocide Convention, art. IX ”Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention … shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

Jurisdiction in contentious cases #2 Jurisdiction may be conferred … By unilateral declaration (Art. 36 § 2) By assuming jurisdiction conferred on PCIJ (Art. 36 § 5) Validity of declarations over time (Art. 36 § 3)

Nicaragua Case US Declaration of 14 August 1946: ”[T]his declaration shall no apply to … disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America”. (US Declaration of 14 August 1946) US Notification of 6 April 1984: “the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.” “Notwithstanding the terms of the aforesaid declaration, this proviso shall take effect immediately”.

Reservations The purport of a reservations may be to modify jurisdiction …. Ratione temporis Ratione personae Ratione materiae

Automatic reservations US Declaration of 14 August 1946: ”[T]his declaration shall no apply to … disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America”.

India (18 Sept. 1974) ”where the acceptance of the Court's compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court”

India (18 Sept. 1974) ”disputes with the government of any State which is or has been a Member of the Commonwealth of Nations” ”disputes with the government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India”

India (18 Sept. 1974) ”disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India” disputes with India concerning or relating to: (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) the determination and delimitation of its maritime boundaries”

Effect of reservations The doctrine of the lowest common denominator Reservations operate reciprocally Example: State A unconditionally accepted the jurisdiction of the Court State B excluded ”disputes relating to facts or situations originating in armed conflicts or acts of a similar nature which may affect the territory of state B”

Admissibility Criteria applied: Nationality of claim not respected Domestic remedies not exhausted No longer any dispute = the case is moot Claimant lacks a real interest Monetary Gold principle

Third party intervention To provide the Court with broader basis for decision A state may intervene … In cases concerning the interpretation of a treaty, to which that state is a party (Art. 63) In cases where it finds its interests may be affected, and the Court decides to permit intervention (Art. 62)

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)

Provisional measures Court may indicate on the condition that … Measures are necessary to preserve a right A prima facie basis for jurisdiction can be established (Art. 41) Decision is legally binding (La Grand Case) ”measures which ought to be taken”

Proceedings Case is brought before the Court (Art. 40 § 1) In case of application, Registrar communicates (Art. 40 §§ 2-3) Orders Possible preliminary objections (cp Art. 36 § 6) Case tried on the merits ”The decision of the Court has no binding force except between the parties and in respect of that particlar case.” (Art. 59)