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Seizing the International Court of Justice and the International Tribunal for the Law

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) dictates the rules to be applied in resolving disputes that arise from its interpretation or application. According to this convention, “when signing, ratifying, or acceding to UNCLOS, a State may make a declaration choosing one or more of the following means for settling disputes”: one, the International Tribunal for the Law of the Sea(ITLOS), two,  the International Court of Justice (ICJ), three, An arbitral tribunal constituted in accordance with Annex VII of the Convention,  and four,  A Special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. Before a state seizes the International Court of Justice and the International Tribunal for the Law of the Sea, it must satisfy several conditions.  It is only when these conditions are satisfied that the court or the tribunal can be validly seized, leading to the case being entered on the list of pending cases before ITLOS or the ICJ.

Seizing the court is the foremost procedure that a state will have to do. This procedure is concerned with how a case is brought before the tribunal or the court. It is however important to note that the case of seizing the court or the tribunal does not concern itself with the case of jurisdiction; the two are separate. The fact that a State has seized either the ICJ or the ITLOS does not automatically mean the institution has jurisdiction over the matter.  For the sake of the court, the procedure for seizing the court can be drawn from Article 40 of the ICJ Statute. According to this article, “Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the registrar”.

From this article, it is possible to draw some of the requirements that could lead to a valid seizure. According to Kolb, there are two ways in which the court or the tribunal can be seized: either through a joint or unilateral notification of a special agreement establishing its jurisdiction. A unilateral application can only succeed under two scenarios: one, a compulsory pre-existing jurisdictional agreement; or two, an express or implied request to the respondent to agree to the court jurisdiction as per the forum prorogatum. Since the rules of ITLOS are drafted in reference to those of the court, the tribunal tends to have the same requirements. From this background, it is possible to draw the scenarios that could validate a state’s seizure of either the ICJ or the ITLOS.

Special agreement

A state may seize the ICJ or the ITLOS through a notification of a special agreement. As Article 36(1) of the ICJ statute provides, the court has jurisdiction over all the cases referred to it by the parties. Such cases normally come to the court through a notification of the special agreement (compromis) to the registrar.  This is the same with the ITLOS, which is much the same as the ICJ. In the case of a tribunal for that matter, the place for a special agreement is provided for under Article 24(1) of the Statute of the Tribunal. The agreement has to be concluded by the parties for this purpose. In concluding a special agreement, the parties to the dispute may either select ITLOS or the ICJ. Negotiating a special agreement is the most common way of seizing the two institutions. In line with Article 40(1) of the statute as well as Article 39 of the Rules, parties negotiating a special agreement have to state the issues in the dispute and the ground on which the ICJ or the ITLOS should give its decision. The court has severally been seized through special agreements. Examples of these cases include the Asylum (Colombia/Peru), Frontier Dispute (Bukina Faso/Mali), M/V Virginia G case (Panama/Guinea Bissau) and Gabcikovo-Nagymaros Project (Hungar/Slovakia) just to mention a few. It is important to point out that the concurrent will of the parties (as expressed through a special agreement) is considered decisive. This is in accordance with Article 280 of the UNCLOS which states that no part of the convention concerning the settlement of disputes that “impairs the right of any state parties to agree at any time to settle a dispute between them concerning the interpretation or application of this convention by all means of their own choice”. This is why the special agreement is considered paramount. According to Rao and Khan, a special agreement has the effect of “widening the jurisdiction ratione personae” of the Court or the Tribunal

Optional Clause Declaration

A state can validly seize the court if there is a unilateral declaration (optional clause) made under Article 36(2) of the Court’s Statute. The article allows states to make declarations accepting the Court’s jurisdiction as compulsory. Similarly, in conformity with Articles 287(1) and 298(1) of the UNCLOS, a state may make any reservation or optional exceptions in regard to making the ITLOS have a compulsory jurisdiction. When a state is making a declaration, it may do so “unconditionally or on condition of reciprocity on the parts of several states, or for a certain time”. This means that a State may choose to accept the jurisdiction of the Court or the Tribunal in so far as the other state wishing to benefit from this also reciprocates. A state therefore may seize the court or the tribunal on the basis of this compulsory declaration without the need of any other previous agreement. In such a case, the court or the tribunal will be validly seized. Most of the states accepting the compulsory jurisdiction of either the court or the tribunal do so on condition that other states must reciprocate. Others choose to put time limits. The court has been seized from this ground in several cases. For instance, Cameroon successfully prosecuted Nigeria on the basis of the optional clause. In this case, the court ruled that it had jurisdiction to entertain Cameroon’s application on the basis of the declaration made by the two parties accepting the court’s compulsory jurisdiction under Article 32(2) of the ICJ Statute.

The rationale behind the option clause was to create a universal system on the understanding that more states would be forced to reciprocate in order to benefit from the convention. Unfortunately, this goal was not achieved. Most of the states that opted for an optional clause introduced many reservations which ended up limiting the jurisdiction of the court and the tribunal. Others refrained. The challenge limits the way a state can seize the court or the tribunal. As Karakaya observes, ‘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 on the terms on which they are willing to do so”. Substantial numbers of States have refused to participate in the optional clause system in the way it was intended. States like Brazil, Turkey, Guatemala, and Bolivia have not renewed their optional clause after the lapse of time. South Africa on the other hand has terminated its optional clause.

Optional clause is akin to giving consent in advance in relation to the compulsory jurisdiction of the Court or the Tribunal. There are both advantages and disadvantages of this move. With the condition of reciprocity, a state is able to access the court in relation to other states that have also accepted the court jurisdiction. The flexibility of introducing reservation serves to protect a State from specified manner of dispute, but may also limit State prosecutorial avenues. For instance, in Norwegian Loans case, France failed to seize the court due to the reservations it had made on her optional clause. The reservation that France had made was declared as a self-judging reservation. Giving unreserved consent in advance, however, may expose a state to unlimited future disputes. Nicaragua, in Nicaragua v United States of America, has seized the court through this route to the extent that the US withdrew from its acceptance of compulsory jurisdiction under Article 36(2) of the ICJ statute.

What can be drawn from the court cases, Like the Nigeria and the Nicaragua cases is that once a state accepts the compulsory jurisdiction of the court, it forms a consensual bond with all other states that may or will do the same. Basically speaking, once a state submits a declaration under Article 36(2) or under Articles 287(1) and 298(1) of the UNCLOS, the state becomes a “sitting duck”.

Cases provided for in treaties and conventions

A state may seize the Court or the Tribunal on the basis of treaties and conventions that provide either of the institutions with the competence to determine the case. In Article 36(1), the Court’s Statute provides that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force. Similarly, Article 21 of the Tribunal Statute provides that the Tribunal has jurisdiction over any dispute concerning the interpretation or application of UNCLOS, and “over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal”. Essentially, there are close to 300 multilateral and bilateral conventions conferring jurisdiction on the Court. The Tribunal benefits from close to 12 such conventions. A state that has accented to these conventions is assumed to have submitted itself to the jurisdiction of the institutions conferred. As such, any state may validly seize the Court or the Tribunal without any special agreement or ad hoc consent from the defending state. However, a state has to be a party to a treaty for it to invoke its provision against another member state. In both institutions, the procedure for filing the case is through a written application that includes the nature of the dispute and the ground on which the applicant thinks that the Court or the Tribunal has the jurisdiction to hear the case.

Both the Court and the Tribunal, courtesy of some of the conventions have issues that they enjoy exclusive jurisdiction. ITLOS for instance, despite being the default procedure under Article 287 also has exclusive jurisdiction in two cases. One is where the parties to a dispute have failed to agree, within a given time, the procedure they are going to use to resolve their dispute. Two, the Seabed Dispute Chamber, under the ITLOS, has compulsory jurisdiction over disputes concerning activities in the Area. States can therefore rely on the provision of a treaty or a convention to seize the Court or the Tribunal.

The main challenge with the Courts or Tribunal seizure through jurisdiction provided by treaties and conventions is the reluctance of Member States to give consent to the jurisdiction of the two institutions. Where a treaty or a convention has an opt-in or opt-out mechanism, some of the states have resulted in making reservations that greatly hamper the jurisdictions of these institutions. A good example of such a state is the United States which has constantly made reservations to several treaties such as the compromissory clause of Article IX of the Genocide Convention and Article 22 of the Convention on the Elimination of Racial Discrimination. In its reservation, the US demands that its consent has to be obtained before a case against it is submitted to the ICJ.

Forum Prorogatum

In the event that all of the above avenues are unavailable, a State can still seize the Court or the Tribunal through the doctrine of forum prorogatum. This is where the defendant state has not accepted the jurisdiction of the Court or the tribunal, but there are chances that it can accept the jurisdiction of the court post hoc. As such, for the Court or the tribunal to acquire jurisdiction the defendant state must consent to their competence. Such consent, as Revillo points out may be “shown not only expressly, like in the Corfu Channel case but also through actes concluants from which that consent may be unequivocally deduced”. Quitana has explained the doctrine of forum prorogatum as “an imperfect seisin of the Court that later comes to be regularised by actions on the part of the potential respondent, with the result that the jurisdiction of the Court is established in a retroactive way”. This provides the basis for a unilateral application, which is followed by the consent of the defending party.

Interestingly, both statutes of the Court and of the tribunal make no reference to the doctrine of the forum prorogatum but based on the wide leeway of Article 36(1), that doctrine finds its legal foundation. More importantly, Article 38(5) of the Rules of the ICJ gives room to this doctrine. Article 54(5) of the Rules of the Tribunal borrows from the Rules of the ICJ to equally give room for this doctrine.  Despite this weaker legal background, Bedjaoui still considers this doctrine to be “an original instrument of seising the court”.

Although this doctrine is now duly recognised as a valid way of seizing the court or the tribunal, it is rarely applied. A few factors can explain this outcome. First, the doctrine arouses anxiety among States that jealously safeguard their sovereignty. Most states do not approve of being taken to court or a tribunal without their consent. Secondly, the doctrine is open to political abuse.

Due to such challenges, the doctrine of forum prorogatum has not gained wide acceptability among the states. There are only about five cases that have been brought to Court via this avenue. In one case for instance, the Republic of Djibouti unilaterally applied to have France surcharged for violating its obligations on mutual assistance in criminal matters. France consented to the jurisdiction of the Court under the forum of forum prorogatum. However, as Karakaya explains, the case was not too vital to France, and therefore it should not be taken as a wider acceptance of the doctrine.

Conclusion

Basically, the four options are the ways through which a state can seize the Court or the tribunal. The forum to use depends on the circumstances at hand. Special agreement, though, remains the most widely mechanism of seizing the ICJ or the ITLOS. It is important to underscore that ITLOS is much the same as the ICJ, as far as the procedure for seizure is concerned. It appears that the rules of ITLOS borrowed much from the rules of the ICJ. Nonetheless, each of the institutions has areas in which it enjoys exclusive jurisdiction courtesy of different treaties and conventions.

Bibliography

Books and Journals

Alexandrov, S ‘The compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It? [2006] 5 Chinese Journal of International Law 1, 29-38

Bedjaoui,  M “the forum prorogatum before the International Court of Justice: The Resources of an Institution or the hidden face of consensualism” (ICJ Yearbook, 1996)

Clapham, A. “Briely’s law of nations”, (OUP, 7th ed, 2012)

Karakaya, M “The Jurisdiction of the International Court of Justice: How Effective is it? (2013) IV Law & Justice Review 2, pp.143-165

Klabbers, J. “International Institutional Law”, (CUP, 2nd ed, 2009)

Kolb, E “The Elgar Companion to the International Court of Justice”, (Edward Elgar Publishing, 2014)

Merrills, J “International Dispute Settlement”, (Cambridge University Press, 5th ed, 2011)

Quintana, J “Litigation at the International Court of Justice: Practice and Procedure”, (BRILL, 2015)

Rao, P and R Khan, ‘The International Tribunal for the Law of the Sea: Law and Practice’, (Martinus Nijhoff Publishers, 2001)

Revillo, M “The Contentious and Advisory jurisdiction of the International Tribunal for the Law of the Sea”, (BRILL, 2015)

Sands, P., Y Shany and R Macenzie, “Manual on International Courts and Tribunals”, (OUP, 2nd ed, 2010)

Statutes and Cases

Cameroon v Nigeria, [1998] ICJ Rep 1998, para 1-19

Charter of the United Nations

Djibouti v France [2008] ICJ Rep 177

France v Norway [1957] ICJ Rep 9

Nicaragua v United States of America [1984] ICT Rep 392

Statute of the International Tribunal for the Law of the Sea

Statute of the International Court of Justice, 1945

United Nations Convention on Law of the Sea

[1] Article 40, Statute of the International Court of Justice, 1945

[2] J Klabbers, “International Institutional Law”, (CUP, 2nd ed, 2009)

[3] P Rao and R Khan, ‘The International Tribunal for the Law of the Sea: Law and Practice’, (Martinus Nijhoff Publishers, 2001), at p.122

[4] Cameroon v Nigeria, [1998] ICJ Rep 1998, para 1-19

[5] M Karakaya, “The Jurisdiction of the International Court of Justice: How Effective is it? (2013) IV Law & Justice Review 2, pp.143-165; Merrills, international Dispute Settlement, pp 117-118

[6] Article 290(5) of the UNCLOS

[7] Article 187 of the UNCLOS

[8] M Karakaya, “The Jurisdiction of the International Court of Justice: How Effective is it? (2013) IV Law & Justice Review 2, pp.143-165, at p.154

[9] P Sands, Y Shany and R Macenzie, “Manual on International Courts and Tribunals”, (OUP, 2nd ed, 2010)

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