-DHARMIL DOSHI, SVKM’s Pravin Gandhi College of Law, Mumbai University.

The International Court of Justice (ICJ): The United Nations Charter not only requires States to solve their conflicts peacefully; but also provides a forum for the judicial settlement of disputes in accordance with international law. States “should be fully aware” of the role of the International Court of Justice, which is the principal judicial organ of the United Nations, for the settlement of legal disputes among them. Article 94 of the UN Charter states that “each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”

Questions of Jurisdiction:  In international law, admissibility of a dispute refers to the character that an application, a pleading or evidence must present to be examined by the authority it is submitted to[1]. In several cases, States have questioned the jurisdiction of the ICJ to adjudicate upon a matter.

Competence de la competence principle of law provides a court the prerogative to determine whether the court possesses the judicial right of exercising jurisdiction in a given matter. The ICJ is specifically empowered to exercise this right under Article 36(6) of its Statute which states that “in the event of a dispute whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of subsequently accepting such jurisdiction to enable the Court to entertain the case; the Court, thus has the jurisdiction as of the date of acceptance under the forum prorogatum rule. Generally, in the advisory, contentious and as mentioned above in the compulsory jurisdiction of the ICJ, the consent of the State parties is incorporated for Judicial recourse.

Objections to Admissibility: If objections to jurisdiction are not successful, the ICJ would usually initiate proceedings to rule on the admissibility of the claims[2]. Not only shall ICJ have the relevant jurisdiction, but also the dispute must be admissible before the court. While raising issues upon admissibility, the respondent must have consented to the Court’s jurisdiction ab initio, but objects to the determination of the dispute by virtue of other grounds. Inadmissibility of a claim may be declared on such grounds including the inexistence or character of a dispute[3], the exhaustion of local remedies[4] or procedural issues such as lis pendens.[5]

The Character of a Dispute: The definition of the dispute, or the formulation of the legal question that the Court is asked to decide is a key element of any agreement. It is essential to locate this legal question in order to give substantive existence to the dispute The range of possible questions that can be presented to the Court is very broad. The Parties may ask the Court to provide a potentially definite answer to their dispute, or they may ask the Court to simply establish or enunciate which rules of international law apply to the dispute[6]. In the case related to certain German interests in the Polish Upper Silesia[7], the Permanent Court of Justice (PCIJ) states “a difference of opinion does exist as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views”. The above indicates that an international dispute must be settled objectively, with the dispute defining itself through its intrinsic nature as opposed to the subjective classification the parties define it. This subjective classification was contested in the Case concerning border and transborder armed actions[8]where it was contested that “It is a politically-inspired, artificial request which the Court should not entertain consistently with its judicial character” where the Court clarified that the objective of recourse to the ICJ is the peaceful settlement of disputes and the ICJ’s judgment is a legal pronouncement, and it cannot divulge with any political motivations which renders a state to opt for judicial settlement.

Exhaustion of Local Remedies: The issue of the actuality of the dispute was raised in the Case Concerning Land Reclamation by Singapore In And Around The Straits Of Johor before ITLOS[9], when in the event that the respondent party refused to proceed to consultations, the adverse party contested to prove the relevance of its case, in consonance with the principle of prior exhaustion of negotiations or local remedies, which extends to judicial bodies beyond the ICJ too.

In the ELSI case[10], the ICJ holds that “…for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the Tribunals having jurisdiction and pursued as far as permitted by local law and procedures, and without success.” The exhaustion of domestic remedies was solidified in being circumstantially viewed as a prerequisite to adjudicate upon or consider the admissibility of the application.

Legal Reservations: When it comes to objecting the admissibly, legal exemptions arising out of International Treaties often land up as submissions by the Respondent State on procedural grounds. In the Nicaragua Case[11], The USA argued that the multilateral treaty reservation debars the Court from considering the Nicaraguan claims based on customary international law. The multilateral treaties in question consist of certain legal standards agreed between the Parties which govern their mutual rights, and the conduct of the respective Parties shall continue to be governed by the said treaties, irrespective of what the Court may decide on the customary law issue, in light of the principle of pacta sunt servanda.

Conclusion: The ICJ is considered an option for unlocking diplomatic impasses peacefully. In this light, submitting a dispute to the Court should not be viewed as an unfriendly act[12]. In the juxtaposition of the binding power of International Law, often states will attempt to uphold their sovereign decisions by avoiding judicial explanations. Thus, it is imperative that the sanctity of ICJ shall not be demeaned by frivolous or incomprehensive objections. The output of the various State forces should strive to provide a clear and undisguised path to Judicial discourse, upholding the integrity of peaceful settlement of disputes (Chapter VI of the UN Charter).

END NOTES:

---

[1] Paris Sirey, Dictionary of International law terminologies, 1960, 750 p., p504

[2] Ian Brownlie, Principles of Public International Law (6th edition, Oxford University Press 2003) 457

[3] Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 19 January 2009 ICJ Reports 2009, para 21.

[4] Interhandel Case (Switzerland v. United States of America) Preliminary Objections, Judgment of 21 March 1959ICJ Reports I959 6, 23/24

[5] Lis Pendens, in general terms, refers to a pending legal action, or a formal notice of one.

[6] Handbook on accepting the jurisdiction of the International Court of Justice; Berne, The Hague, Montevideo, London, Vilnius, Tokyo and Gaborone, July 2014; New York, July 2014.Mr. Miguel de Sera Soares, Under-Secretary-General for Legal Affairs and the United Nations Legal Counsel.

[7] Case Concerning Certain German Interests in Polish Upper Silesia, PCIJ, Series A, Judgment No.  6 of 25 August 1925, Series A, No. 6. P. 19

[8] Case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, Z.C.J. Reports 1988, p. 69, para 52.

[9] Case Concerning Land Reclamation By Singapore In And Around The Straits Of Johor (Malaysia v. Singapore), order of 10 September 2003, ITLOS reports 2003, International Tribunal for the Law of the sea [ITLOS]

[10]  Case concerning Elettronica Sicula S.P.A. case (ELSI),( United States of America v. Italy), Judgment  of  20    July 1989,  p.46, para 59.

[11] Case Concerning Militarv and Puramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 14

[12] UN General Assembly, Manila Declaration on the Peaceful Settlement of International Disputes, 15 November 1982, A/RES/37/10,

Edited by: Vidhi Dugad, Zeel Davda.