Chapter1: Jurisdiction of International Dispute settlement Bodies and arbitral tribunal.

Chapter1: Jurisdiction of International Dispute settlement Bodies and arbitral tribunal. 

Mavromatis judgment of 1924 by PCIJ: (International Dispute is) A disagreement over a point of law or fact, a conflict of legal views or of interest between two persons. 

 International disputes might emerge from a variety of factors, such as strategic, political, economic, cultural and religious. 

International Conflict Vs.  International Dispute: 

General state of hostility or a wider antagonism between states should be called international conflict. 

International dispute in the traditional sense signifies a specific disagreement between subjects of international law concerning a matter of fact, law or policy in which a claim of one party is positively opposed by another. 

Dispute arises from the conflict while the existence of a conflict does not always lead to the dispute. 

A dispute exists when it is demonstrated, on the basis of evidence, that the respondent was aware,or could not have been aware, that its views were positively opposed by the applicant.  

Distinction between Legal (static) and Non- Legal (Dynamic) Disputes. Article 16 of the 1899 Hague Convention. 

Distinction between Legal and political disputes: Article 13(20 of the covenant of the League of Nation. 

ICJ:

The ICJ is closely linked to the United Nations in three aspects: 

1. Established by the Charter of the UN as the successor to the PCIJ.  The UN charter and Statute of ICJ were adopted at the same time. And further, Article 92 of the UN charter provides: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.
2. Article 93(1) of UN charter:  All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. 
3. Article 33 of ICJ statute: PACIFIC SETTLEMENT OF DISPUTES: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by:

• negotiation, 
•  enquiry, 
•  mediation, 
• conciliation, 
• arbitration, 
• judicial settlement, 
• resort to regional agencies or arrangements, 
• or other peaceful means of their own choice.

Instruments governing the ICJ:

1. The UN Charter.
2. The Statute of the ICJ.
3. The rules of the court (1978).
4. International treaties and Conventions.
5. The practice directions.

Following propelled the Multiplication of International jurisdiction: 

1. End of bipolarism and advent of multilateralism.
2. The abandonment of Marxist- Leninist interpretations of international relations.

3. The capitalist market-based economies. 

    

Importance of ICJ in International dispute settlement: (4 Main reasons): 

1. ICJ as a judicial organ is not affected by differences in political, economic and military powers between states. (hence, more useful for smaller states. Example; Libya submitted the dispute concerning Lockerbie to the ICJ and whilst UK and the US referred this dispute to the security council 
2. It is the only court with the general jurisdiction at the global level. Therefore, it can deal with all types of inter-state disputes, if the jurisdiction can be established. 
3. Unlike courts in the common law system, ICJ does not adopt the principle of binding precedents. (The court use previous decisions to secure a sufficient degree of continuity and predictability in its jurisprudence). 
4. It is generally recognized that the decisions of the ICJ have authority over the interpretation and application of rules of international law. (Court assists ILC by identifying the rule of customary international law.)

Jurisdiction: (Article 36 of ICJ statute). 

ICJ has 2 jurisdictions: 

1. Contentious Jurisdiction. 
2. Advisory Jurisdiction. 

1. Contentious Jurisdiction. 

The jurisdiction of a court or a tribunal signifies the power to decide a dispute in accordance with law. 

Jurisdiction is exercised on the basis of the consent of states and no state is bound to submit its disputes with other states to the court without its consent. This is a corollary of the principle of free choice of means. 

International court or tribunal has the power to decide on the existence and extent of its own jurisdiction concerning any dispute before it. This is called the principle of La competence de la competence. This principle is explicitly provided in the Article 36 (6) of the Statute of the ICJ.  

Models to give a state's Consent to the ICJ’s Statute: 

Source: The peaceful settlement of international disputes by Yoshifumi Tanaka. 

State’s consent can be given through four different ways: 

1. Special agreement.
2. A compromissory clause to the treaty. 
3. Forum prorogatum.
4. The Optional Clause.

I. Special Agreement

Commonly used method of consenting, which is concluded after a dispute arises. The special agreement relates to a joint referral of dispute to a court. IN this case parties to a dispute mutually recognize the existence of the dispute by concluding special agreement. 

Joint referral of dispute may be regarded as an ideal in the contentious proceedings of the court as parties have specific willingness to settle their dispute by judicial settlement and expected that parties will appear before the court and implement the decision. 

Article 40 (1) of ICJ Statute; 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. 

Controversy: 

1. The existence of special agreement itself may be a matter of dispute between the parties.

2. Questions may arise with regard to the interpretation of a special agreement. 

II. A compromissory clause in a treaty: 

A clause in a treaty providing that all disputes relating to the application or interpretation of the treaty may be brought by one or other party before the court by unilateral application. (Clause that specifically mentions going to ICJ in such a case). 

Example: Pact of Bogota 1948 is a well-known example. 

 

III. Forum prorogatum: 

Under Article 38(2) of the rules of court, the application shall specify ‘as far as possible’ the legal grounds upon which the jurisdiction of the court is said to be based. The qualification ‘as far as possible’ appears to imply that the specification of the legal basis of the jurisdiction of the court is not absolutely required in the application instituting the proceedings before the Court.

 (to understand: Country ‘A’ has to wait with expectation that country ‘B’ will come and if B comes then jurisdiction of court is said to be established). 

Example: 1949, Corfu Channel Case.

Here, the UK unilaterally submitted an application before the court on the basis of the recommendation of the security council. Albania then Accepted the jurisdiction of the court. 

However, the acceptance of Courts jurisdiction by respondent on the basis of forum prorogatum remains very rare. 

IV. Optional Protocol: 

Important method of conferring the jurisdiction to the court involves the optional clause enshrined in Article 36(2) of the ICJ statute. 

Nicaragua Case: The acceptance of the Optional clause is a unilateral act which creates a series of bilateral engagements with other states accepting the same obligation of compulsory jurisdiction. 

Most of the declarations accepting the Optional Clause are qualified by the compulsory Jurisdiction of the court. 

Reservation to Optional protocol:

Article 36(2) and 36(3) of ICJ Statute. 

Principle of reciprocity Concerning Reservation to the Optional Protocol:

Article 36(3): The declarations to accept the compulsory jurisdiction of the court may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. This means a state’s acceptance of jurisdiction is only valid if the other state involved in the dispute has accepted the same jurisdiction. 

In the Interhandel case, it was stated that reciprocity allows a country to use a reservation made by another country regarding the acceptance of the court's compulsory jurisdiction, even if the first country didn't make that same reservation in its own declaration.

If the claimant state has accepted the optional clause subject to reservations, the defendant state can rely upon the claimants State’s reservation by the way of reciprocity. 

According to the principle of reciprocity, the scope of jurisdiction of court is defined by the narrower of the two acceptances. Essentially, the court respects the most limiting reservations made by either country. 

Anglo Iranian Oil case; as the Iranian declaration is more limited in scope than the UK; it is an Iranian declaration on which the court must base itself. 

Principal categories of these reservations: 

1. Reservation ratione personae.
2. Reservation ratione temporis.
3. Reservation ratione Materiae. 

1. Reservation ratione Personae: 

It aims to preclude litigation of dispute with specific categories of states. The scope of states which are precluded from litigation before the ICJ may determine on the basis of:

1. Non-existence of diplomatic relations.
2. Members of a certain group or region.
3. A time element. 

In simpler terms, this type of reservation allows a country to specify that it won't handle legal cases with certain other countries based on diplomatic ties, regional membership, or a specific timeframe. 

2. Reservation ratione temporis: 

It seeks to limit the time scope of the application of the optional Clause. 

3 Types of ratione temporis are:

1. Type which seeks to limit the time scope of the application of the optional clause with regard to disputes arising from a certain date. 

For instance: the 1956 declaration of the Netherlands is limited to disputes which may arise after 5 August 1921. 

2. Second type of it aims to avoid litigation relating to a particular period of national history. 

For instance, The Israeli declaration of 1956 excluded disputes arising out of events occurring between 15 May 1948 and 20 July 1949, the period of war of Independence. 

3. Its third type seeks to ensure that only events subsequent to the declaration are subject to the court's compulsory jurisdiction. 

For instance: the declaration of Barbados accepts the compulsory jurisdiction of the ICJ over all disputes arising after the declaration is made. 

3. Reservation Ratione Materiae: 

It aims to exclude from the court’s jurisdiction certain categories of disputes.  

2. Advisory Jurisdiction of ICJ: 

 It is enshrined in:

1. UN Charter, Article 96.
2. ICJ Statute, Article 65 to 68. 

3. Rules of Court, Article 102 to 109.

    

Upcoming topics (available on 24th June) 

1. United Nations Organization 
2. Role of SG in International dispute settlement. 
3. Role of Security council in dispute settlement.
   1. Submission of dispute.
   2. Adoption of Agenda and examination of dispute.
   3. Determination of specific measures. 
4. Inter- Relation Between Security council and ICJ. 
5. Settlement of Dispute and Security Councils Role. 

                                Prepared by Madhu Dahal and Manish Rajak.

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