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Samenvatting uitwerkingen leerdoelen international and european law nabespreking 4
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EU/INTERNATION LAW PROBLEM 4Literature:
- Henriksen, International Law, Chapter 12.4 and 13
Case law:
- Nicaragua (Judgment of 27 June 1986)
- Armed Activities DRC v. Rwanda (Judgment of 3 February 2006)
1. What are the grounds of jurisdiction of the ICJ?
12.4 The International Court of Justice
The ICJ is the only court in international law with a general jurisdiction to deal with interstate
disputes. It was established as a principal organ of the UN and its Statute is attached to the
UN charter.
The ICJ decides disputes submitted to it and it can deal with both contentious cases and issue
advisory opinions. Its judgments are binding on the parties and not subject to appeal.
12.4.2 Access to the Court in contentious cases
According to art. 34 ICJ Statute, only states can be parties to a contentious case before the
Court. Access is dealt with in art. 35 and concerns who may bring or be brought before the
Court while jurisdiction concerns whether the Court has the power to settle a dispute that is
brought before it.
Art. 35 (1) specifies that the Court is open to the state parties to the Statute.
-> primary method for obtaining access to the Court
Art. 35 (2) concerns access for other states to gain access:
a. the Security Councel may provide a non-party with access
b. non-party state may gain access by ‘special provisions contained in treaties in force’
-> only treaties that were already in force when the Statute was adopted in 1945
12.4.3 Consent to jurisdiction in contentious cases
According to art. 36 ICJ Statute, consent to the Court’s jurisdiction can be expressed in
different ways:
1. In an explicit agreement; the parties agree to submit a particular dispute to the Court
2. A state consents by becoming a party to a dispute settlement treaty or a treaty that
specifies that disputes in relation to the treaty can be brought before the court
3. By making a declaration under art. 36(2) and thus accepting the Court’s jurisdiction in
international legal disputes with another state that accepts the same obligation
= ‘optional clause system’
-> a state cannot withdraw from such declaration after the Court has seized the case
-> Nottebohm rule = the Court will keep jurisdiction of a case that is seized even after
the date a declaration that was limited in time has expired
, 4. Doctrine of forum prorogatum; whereby a state that has not consented to the
jurisdiction of the Court at the time an application is filed against it subsequently
does so
-> the Court will only base it jurisdiction on forum prorogatum if it can be proven that
the state showed ‘an unequivocal indication’ of a wish to accept the Court’s
jurisdiction in a ‘voluntary and indisputable’ manner
Art. 36(6) stipulates that the Court has competence to rule on its own jurisdiction and the
decision by the Court is binding on the parties.
The consensual nature of jurisdiction means that the Court will decline to exercise its
jurisdiction in a dispute between two consenting states if it finds that the rights and
obligations of a non-consenting third state form the subject matter of the dispute.
The Court will only decline to exercise jurisdiction of the interest of the third party is central
to the case.
Art. 62 of the Statute stipulates that a state with a legal interest in a case to which it is not a
party may request permission to intervene.
12.4.4 The existence of a ‘dispute’
When the ICJ exercises its jurisdiction in a contentious case, it settles disputes of legal nature.
If, by implication, there is no dispute between the parties, there is no need for the Court’s
intervention.
According to the Court, a ‘dispute’ is a ‘disagreement on a point of law, a fact, a conflict of
legal views or of interests, and it ‘must be shown that the claim of one party is positively
opposed by the other’.
12.4.5 The power of the ICJ to indicate provisional measures
Art. 41 stipulates that the court has the ‘power to indicate, if it considers that circumstances
so require, any provisional measures which ought to be taken to preserve the respective
rights of either party’.
Provisional measures are subject to certain conditions.
1. The Court must take a prima facie determination
2. The rights asserted by the requestion party must be at least ‘plausible’ and there
must be a link between the rights forming the substance of the merits of the case and
the provisional measures sought
3. There must be ‘a real and imminent risk that irreparable prejudice will be caused to
the rights in dispute before the Court gives its final decision.
Practice by the ICJ shows that an order for provisional measures under art. 41 is legally
binding on the parties.
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