Jurisdiction and Admissibility

Question 1

What is jurisdiction?

What two considerations should we make?

Answer 1

The power to adjudicate

1) The existence = consent
2) The scope = personal, territorial and temporal jurisdiction.

Question 2

What is admissibility?

Answer 2

Whether court or tribunal should adjudicate.

Question 3

What is contentious jurisdiction?

Answer 3

Art 34(1) - only states may be parties before the Court.

Question 4

What is advisory jurisdiction?

Answer 4

Art 65 ICJ Statute - allows international organisations to request advisory opinions of the Court.

Question 5

What are the four main methods of consent?

Answer 5

1) Special Agreement
2) Compromissory Clause
3) Forum Prorogatum
4) Optional Clause Declaration

Question 6

What is a special agreement?

Answer 6

Art 36 of ICJ Statute:

Relates to the joint referral of a dispute to the Court. Parties will mutually recognise the existence of the dispute by concluding special agreement.

Eg Gulf of Maine and North Sea Continental Shelf.

Question 7

What are the main problems that arise with special agreements?

Answer 7

1) The existence of a special agreement (Aegean Sea Continental Shelf
2) The interpretation of a special agreement (Libya/ Malta)
3) How the court can be seised of a case (Qatar/ Bahrain)
4) State which isn’t a party has legal interest in very subject matter (Monetary Gold case)

Question 8

What happened in the Aegean Sea Continental Shelf case?

Answer 8

Turkish Government argued a joint communique did not amount to an agreement under international law.

JC did not constitute an immediate commitment by Greek and Turkish prime ministers to accept unconditionally the unilateral submission of present dispute.

Question 9

What happened in Libya/ Malta case?

Answer 9

Malta wanted interpreted the agreement so that the Court would draw a delimitation line.

Libya only wanted the principles and rules of IL applicable.

Court said since it was required to decide how principles and rules of IL could be applied, this entailed the indicated of a method and hence, would form at least an approximate line.

Question 10

What happened in Maritime Delimitation (Qatar v Bahrain)?

Answer 10

Minutes provided extra time for Saudi King to exercise good offices. If he didn’t come to conclusion on how to approach territorial right, Qatar could bring to court.

Qatar unilaterally submitted but only included certain parts of the disputes. Would have constituted a special agreement, but can partially submit the dispute.

Question 11

What is a compromissory clause?

Answer 11

Clause in treaty providing all disputes relating to the interpretation or application of the treaty may be brought by unilateral application.

Prospective.

Question 12

What is forum prorogatum based on?

Answer 12

Art 38(5): Consent yet to be given.

Where party to a dispute has no basis for jurisdiction, brings case with expectation respondent state may consent to proceed.

Question 13

How can a state consent via forum prorogatum?

Answer 13

Corfu Channel - Letter

Case Concerning Criminal Proceedings in France - France consented on basis of consent yet to be given.

Right of Minorities in Polish Upper Silesia - Poland first objected on second written pleadings, having argued the merits of the case in its first written pleadings.

Question 14

Where can description of optional clause declaration be found?

Answer 14

Art 36(2) of ICJ Statute

Question 15

What is intended by optional clause declaration?

Answer 15

Should states A and B accept the optional clause, State A can unilaterally submit a dispute with State B to court.

Question 16

What is the character of the relationships created by a declaration? (Collier and Lowe)

Answer 16

A declaration is a unilateral act by the state making it, but creates a bilateral relationship between states which make declarations.

A relationship is created in relation to any other state accepting the same obligation and the mutual obligations arise at the time time the second declaration is made - even though no communication between states.

Once state A has filed a declaration, State B cannot, unless it has reserved the right to do so, withdraw its declaration to deprive the court of jurisdiction over case. (Right of Passage/ Nic v US)

Question 17

How is consent demonstrated within ICSID?

Answer 17

Art 9 of ICSID:

1. Contract between host state and investor
2. Domestic legislation - offering would be litigants redress through ICSID.
3. Bilateral investment treaty - clauses by which each state party consents to submit disputes to ICSID.

Question 18

What three ways can the scope of jurisdiction be limited?

Answer 18

1) Ratione personae
2) Ratione temporis
3) rationae materiae

Question 19

What is ratione personae?

Answer 19

PERSONAL JURISDICTION:

UNCLOS Art 291: States can bring claims.

ICSID Art 25: states and investor that is national of different state.

Art 34 ICJ Statute: State parties.

Precludes litigation of certain categories of states: (1) non-existence of diplomatic relations; (ii) members of certain groups or region (ii) a time element.

Eg Israeli Declaration of 1956 - excludes dispute with any other state which doesn’t recognise israel or refuses to establish or maintain normal diplomatic relations with Israel.

Question 20

What is ratione temporis?

Answer 20

TEMPORAL JURISDICTION
Can bring claim on issue that happened at any time

However, can limit the time scope of the application of optional clause.

Examples:
- Declaration of Netherlands - disputes arises after acceptance of optional clause.

• Israeli Declaration of 1956 - period war of independence.
• Declaration of Barbados - events subsequent to the declaration.

Question 21

What is Ratione Materiae?

Answer 21

SUBJECT MATTER JURISDICTION :

Precludes:

1) Disputes where some other means of peaceful settlement has been agreed (Certain Phosphate lands in Nauru)
2) Disputes arising under multilateral treaties (Nicaragua v US (Merits))
3) Specific Subject Matters of Disputes (Japan - research on, or conservation, management or exploitation of living resources of the sea)

Question 22

What are the four main objections to grounds of admissibility?

Answer 22

1) Hypothetical nature of the case
- (Northern Cameroons)
- (Certain phosphate lands)

2) Case has become moot
- (Nuclear Tests)
- (Burkino faso/ Niger)

3) Lack of interest in the subject matter
- (South West Africa)
- (Barcelona Traction)

4) Legal interest of a third state
- Monetary Gold
- Nicaragua v US
- Certain Phosphate Lands
- East Timor

Question 23

What did Court say in Northern Cameroons?

Answer 23

Facts; Cameroon claimed maladministration by UK as trustee of former trust territory of Northern Cameroons

Court: This was hypothetical and lacking in any real purpose, nothing would come of possible decision.

Question 24

Did court find case of Certain Phosphate Lands in Naura hypothetical?

Answer 24

NO.

Facts: Australia argued termination of trusteeship agreement precluded subsequent allegation of breaches of the agreement being examined.

Court: Dispute already existed before termination of agreement and that everyone then knew differences continued.

Question 25

What was decided in Nuclear Tests?

Answer 25

The french government state promising it would refrain from undertaking more testings was to be binding and so binding on France on IL.

Therefore, case was moot.

Question 26

What happened in Burkina Faso/ Niger?

Answer 26

Facts: BF asked judge to declare that the to portions of their border founded an agreed upon boundary line. Wanted court to include these boundary lines in its operative paragraph.

Court: Has to relate to court’s functions - no real dispute between parties and wouldn’t exercise its functions then on basis of admissibility.

Question 27

Why was South West Africa inadmissible?

Answer 27

Ethiopia and Liberia didn’t have sufficient interest of their own to bring case against SA.

Controversial.

Question 28

What happened in Monetary Gold?

Answer 28

Facts: Gold originally belonging to Albania was removed by Italian to Rome during WW2, and then removed to Germany by Germans. Italy had a claim to the gold by way of reparation for a previous international wrong allegedly done to it by A.

France, UK and USA formed a tripartite commission under Treaty to deal with restitution - UK said it had claim post corfu channel.

Issue: Italy’s objection - Albania wasn’t present to proceedings.

Court: Upheld this - Italian claim was based on right to redress of wrong committed by Albania. Deciding upon international responsibility of Albania. The ‘very subject matter’ of its decision.

Question 29

Why did monetary gold not apply to Nicaragua v US?

Answer 29

US argued El Salvador, Costa Rica and Honduras weren’t present. However, their interests might only be affected by decision. Wasn’t very subject matter of it.

Question 30

Why did monetary gold not apply to Certain Phosphate Lands?

Answer 30

N (and the rehabilitation of phosphate lands) under mandate of UK, Australia and NZ.

Here, UK and NZ weren’t present. They were not ‘in pari materia’ and their interests didn’t form very subject matter.

Question 31

Did monetary gold apply to East Timor?

Answer 31

Facts; Indonesia and Australia - negotiated to delimit their continental shelves.

Court: Couldn’t assess Australia’s behaviour without considering why Ind couldn’t lawfully have concluded the treaty.