Abstract
State practice provides evidence that each international situation is capable of being determined as a matter of law. Currently, sovereign independence of States is curtailed by the international rule of law. Most, if not all, judgements rendered by the World Court contribute influentially to the legal process and the pacification of international society. The Court enjoys a potentially unlimited scope of jurisdiction ratione materiae. The idea of settling judicially a space dispute was not treated as a panacea that will secure international peace and solve international conflicts. State sovereignty, as far as space disputes are concerned, remained relatively free of any relevant conventional impingement. The Court enjoys the authority and jurisdiction to hear and try a space law dispute. Out of 72 ‘optional clause declarations’, no State has included a ratione materiae reservation, therewith excluding disputes originating from a conventional space law instrument or even customary international space law. The Court remains at the service of international community in its entirety and has been radiating through the entire global community a consciousness of the international rule of law. Access to the Court has become ‘universal in nature’. Space law is a new field indeed; settlement of disputes is most certainly not. Although there is no concrete and hard evidence to support the view that a multiplicity of international tribunals has impaired the unity of jurisprudence, what the legal audience focuses on is the influence of the Court on the system of substantive law. Future cases dealing with issues of space law should be referred to the World Court as a full Court, for a wide and comprehensive experience will be needed.
Barrister, LL.M. (i) (Cantab., Hughes Hall), G – H Chambers, Head of Chambers, Of the Athens’ Bar, www.ghlaw.gr. 2015 ©.
I am indeed indebted to J. Crawford (Cantab. & I.C.J.), Chr. Greenwood (Cantab. & I.C.J.) and V. Lowe (Cantab. & Oxon.). The usual disclaimer applies.
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Notes
- 1.
G Abi-Saab, The International Court as a World Court in V Lowe & M Fitzmaurice (Eds.), 50 years of the International Court of Justice (CUP 1996) 3, 4. The political consideration was that State sovereignty could be impinged upon due to the compulsory jurisdiction of the World Court (both the Permanent Court for International Justice and the International Court of Justice, henceforth, the Court). Allot puts forward five arguments supporting his view that it is necessary to question whether the Court is a court of law, let alone a court of justice, P Allot, The International Court and the Voice of Justice in V Lowe & M Fitzmaurice (Eds.), ibid., 27. Kooijmans observes that the Court is to a large extent part of the Westphalian system and, at the same time, being one of the main organs of the UN, an organization designed as an instrument to break away from the Westphalian order; however, hesitantly and haltingly, this was put into practice, P Kooijmans, The International Court of Justice: Where does it Stand? In A. Müller, D Raič & J Thuranszky (Eds.) The International Court of Justice – Its Future Role after 50 Years (Martinus Nijhoff 1997) 407.
- 2.
Second Phase (Ethiopia & Liberia v. South Africa), Judgment of 18 July 1966, I.C.J. Reports (1966), at 6. Abi-Saab suggests that a new self-awareness and change of attitude on the part of the Court itself were presumably the most significant consequence of this crisis (note 1) 6.
- 3.
H Lauterpacht, Peaceful Change – The Legal Aspect in Sir Elihu Lauterpacht (Ed.), Hersch Lauterpacht, International Law – Collected Papers, Vol. 5, Disputes, War and Neutrality (CUP 2004) 10.
- 4.
M Sameh Amir, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (Martinus Nijhoff 2003). Bowett and Others, The International Court of Justice: Process, Practice and Procedure (B.I.I.C.L. 1997). For a recent, concise and updated review of the Court’s activities S Murphy, The International Court of Justice in C Giorgetti (Ed.) The Rules, Practice and Jurisprudence of International Courts and Tribunals (Martinus Nijhoff 2012) 11.
- 5.
Oppenheim’s International Law by Sir Robert Jennings & Sir Arthur Watts (9th Edition, Longman 1992) 12–13.
- 6.
Lord Neuberger MR, ‘The Tyranny of the Consumer and the Rule of Law’ (25th Annual Bar Conference, 6 Nov 2010), in file.
- 7.
B Tamanaha, On the Rule of Law (CUP 2004) 3.
- 8.
T Bingham, The Rule of Law (Allen Lane 2010) 110.
- 9.
N Politis, ‘Le Problème des Limitations de la Souveraineté et la Theorie de l’ Abus des Droits dans les Rapports Internationaux’, (1925) 1 RC 5. S. Chesterman, ‘An International Rule of Law?’, available at http://ssrn.com/abstract=1081738 (last visit 30 Jul 2015) 38. J Morin spoke of an emerging international rule of law, ‘L’ État de Droit: Emergence d’ un Principe du Droit International’ (1995) 255 RC 9, 27. I Brownlie, The Rule of Law in International Affairs (Brill 1998). For a quite novel approach, E Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to foreign Stakeholders’ (2013) 107 AJIL 295.
- 10.
H Lauterpacht, The Judicial Settlement of International Disputes in Sir Elihu Lauterpacht (Ed.), (note 3) 72.
- 11.
S Rosenne, Three Central Elements of Modern International Law in Essays on International Law and Practice (Martinus Nijhoff 2007) 621. As per the concepts of statehood and sovereignty, inter alia, J Crawford, The Creation of States in International Law (2nd Edition, OUP 2007) 31. The Court has stated that ‘[I]t is sufficient to say that State sovereignty evidently extends to the area of its external policy, and that there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State’, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judgment of 27 July 1986, I.C.J. Reports (1986) p. 133 para. 265, also available at http://www.icj-cij.org/docket/files/70/6503.pdf (last visit 30 Jul 2015). It had already observed that ‘it is no doubt true that the Islamic Revolution of Iran is a matter “essentially and directly within” the national sovereignty of Iran; […] however a dispute which concerns diplomatic and consular premises and the detention of internationally protected persons, and involves the interpretation or application of multilateral conventions codifying the international law governing diplomatic and consular relations, is one which by its very nature falls within international jurisdiction’, United States Diplomatic and Consular Staff in Tehran (USA v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports (1979) p. 15–16 para. 25, also available at http://www.icj-cij.org/docket/files/64/6283.pdf (last visit 30 Jul 2015). As per the so-called Treaties of Protection and their impact on sovereignty, the Court held that they amount to ‘a form of organization of a colonial territory on the basis of autonomy of the natives [and] suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations’, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Merits, Judgment of 10 October 2002, I.C.J. Reports (2002) p. 405 para. 205, also available at http://www.icj-cij.org/docket/files/94/7453.pdf (last visit 30 Jul 2015).
- 12.
The Rule of Law in International Society (The First Milon Kumar Banerji Memorial Lecture 16 Jan 2013), available at http://www.youtube.com/watch?v=JNaup3oQzxM (last visit 30 Jul 2015).
- 13.
All members of the UN are ipso facto contracting parties to the Court’s Statute and (are) bound by the latter’s pronouncements, not in the sense of res judicata but as authoritative findings as per the substantive rules and norms of international law.
- 14.
It must be remembered that in February 1944 the Inter-Allied Committee on the future of the PCIJ adopted a report. It was proposed that the revised Statute of the Court should not provide for any kind of obligatory jurisdiction, for any such step was considered premature. Inter-temporal issues on the jurisdiction of the Court are well addressed in N Gallus, The Temporal Jurisdiction of International Tribunals (OUP 2017).
- 15.
C Tams, The ICJ as a ‘Law-Formative Agency’: Summary and Synthesis in C Tams & J Sloan (Eds.) The Development of International Law by the International Court of Justice (OUP 2013) 379.
- 16.
P Couvreur, The Effectiveness of the International Court of Justice in the Peaceful Settlement of International Disputes in A. Müller, D Raič & J Thuranszky (Eds.) (note 1) 85.
- 17.
Sir Robert Jennings, Contributions of the Court to the Resolution of International Tensions in C. Peck & R. Lee (Eds.) Increasing the Effectiveness of the International Court of Justice (Martinus Nijhoff 1997) 83.
- 18.
M Bedjaoui¸ The International Court of Justice at 50 – Introduction in C. Peck & R. Lee (Eds.) (note 17) 20. Also, A Adede, Judicial Settlement in Perspective in A. Müller, D Raič & J Thuranszky (Eds.) (note 1) 49, V Lowe, ‘The Function of Litigation in International Society’ (2012) 61 ICLQ 209.
- 19.
H Lauterpacht, The Absence of an International Legislature and the Compulsory Jurisdiction of International Tribunals in Sir Elihu Lauterpacht (Ed.), (note 3) 205–206, emphasis added.
- 20.
Sir Robert Jennings, The proper Work and Purposes of the International Court of Justice in A. Müller, D Raič & J Thuranszky (Eds.) (note 1) 37.
- 21.
G Guillaume, ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848.
- 22.
F Lyall & P Larsen, Space Law – A Treatise (Ashgate 2009) 559.
- 23.
With regard to the Outer Space Treaty, the USSR insisted on ‘consultation’ (UN Docs A/6352 of 16 Jun 1966), while the USA supported a ‘referral clause’ to the Court (UN Docs A/AC.105/32 of 17 Jun 1966).
- 24.
It has been pronounced that ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extend of their legal rights, and their nature depends upon the need of the community’, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, I.C.J. Reports (1949), p. 178, also available at http://www.icj-cij.org/docket/files/4/1835.pdf (last visit 30 Jul 2015). The legal nature and status of a non-State entity, albeit in a limited context, was examined by the Court, its Opinion being that ‘taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion […] Decides […] Palestine may also take part in the hearings’, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 19 December 2003, I.C.J. Reports (2003), p. 429, para. 2, also available at http://www.icj-cij.org/docket/files/131/1527.pdf (last visit 30 Jul 2015).
- 25.
S Rosenne, The Role of Controversy in International Legal Development in (note 11) 561. It encapsulated the traditional belief that ‘any surrender of the powers associated with sovereignty is an acknowledgement of national weakness and will indeed lead to a prerogative diminution of state power’, analysed by C Weeramantry, Emerging Dimensions of Sovereignty in International Law, in Universalising International Law (Martinus Nijhoff 2004) 106.
- 26.
G Meishan-Goh, Dispute Settlement in International Space Law (Martinus Nijhoff 2007) 22.
- 27.
Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24UST 2389, 10 ILM 965 (1971) (entered into force 1 September 1972) [Liability Convention].
- 28.
L Brillmayer (et al.), International Claims Commissions: Righting Wrongs after Conflict (Elgar 2017).
- 29.
Sir Franklin Berman, The International Court of Justice as an ‘Agent’ of Legal Development in C Tams & J Sloan (Eds.) (note 15) 10.
- 30.
Icelandic Fisheries Case (UK v. Iceland), Merits, Judgment of 25 July 1974, I.C.J. Rep. (1974) p. 23–24, para. 53, also available at http://www.icj-cij.org/docket/files/55/5977.pdf(last visit 30 Jul 2015).
- 31.
S Oda, ‘The Compulsory Jurisdiction of the International Court of Justice’ (2000) 49 ICLQ 251. Also S Rosenne, The Law and Practice of the International Court, 1920–2005, Volume II (Martinus Nijhoff 2006) 701, J Merrills, The Optional Clause at Eighty in N. Ando, E McWhinney & R Wolfrum (Eds.) Liber Amicorum Judge Shigeru Oda (Brill Nijhoff 2002), vol. 1, 438, R Kolb, The International Court of Justice (Hart 2013) 447, J Quintana, Litigation at the International Court of Justice (Brill Nijhoff 2015) 95 and C Tomuschat, in A Zimmermann et al., The Statute of the International Court of Justice (OUP 2006) 589.
- 32.
Certain Norwegian Loans (France v. Norway), Judgment of 6 July 1957, I.C.J. Reports 1957, p. 9, 23, also available at http://www.icj-cij.org/docket/files/29/4773.pdf (last visit 30 Jul 2015). Critical comments on the Court’s interpretation with regard to the optional clause are noted, too. A Mark Weisburd, Failings of the International Court of Justice (OUP 2016) 112–117.
- 33.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Jurisdiction and Admissibility, Judgment of 26 November 1984, I.C.J. Reports (1984) p. 418, para. 60, also available at http://www.icj-cij.org/docket/files/70/6485.pdf (last visit 30 Jul 2015).
- 34.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment of 11 June 1998, I.C.J. Reports (1998) p. 291, para. 25, also available at http://www.icj-cij.org/docket/files/94/7473.pdf (last visit 30 Jul 2015).
- 35.
Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objection, Judgment of 22 July 1952, I.C.J. Reports 1952, p. 105 and 107, also available at http://www.icj-cij.org/docket/files/16/1997.pdf (last visit 30 Jul 2015).
- 36.
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J. Reports 1998, p. 453, paras 46–49, also available at http://www.icj-cij.org/docket/files/96/7533.pdf (last visit 30 Jul 2015). Re-affirmed in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014, p. 244, para. 36, available at http://www.icj-cij.org/docket/files/148/18136.pdf (last visit 30 Jul 2015). Also, P Couvreur, The International Court of Justice and the Effectiveness of International Law (Brill 2017) 63.
- 37.
Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment of 21 June 2000, I.C.J. Reports (2000), p. 32, para. 48, also available at http://www.icj-cij.org/docket/files/119/8088.pdf (last visit 30 Jul 2015).
- 38.
Inter alia, G Törber, The Contractual Nature of the Optional Clause (Hart 2015).
- 39.
Contra K Böckstiegel, Equipping the Court to deal with Developing Areas of International Law: Space Law in C Peck & R Lee (Eds.) (note 17) 447, G Meishan-Goh, (note 26).
- 40.
For the full list, please visit the official site of the Court at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3 (last visit 30 Jul 2015).
- 41.
Australia, Belgium, Bulgaria, Canada, Costa Rica, Denmark, Egypt, Finland, Germany, Greece, Hungary, India, Ireland, Italy, Japan, Lithuania, Luxembourg, Mexico, the Netherlands, New Zealand, Nigeria, Norway, Pakistan, Peru, Philippines, Poland, Portugal, Romania, Spain, Sweden, Switzerland and the UK.
- 42.
Austria, Belgium, Denmark, Finland, Germany, Greece, India, Ireland, Italy, Japan, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland and the UK.
- 43.
Certain Norwegian Loans (France v. Norway), Judgment of 6 July 1957, I.C.J. Reports 1957, p. 27 (note 32). Re-affirmed in Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J. Reports 1998, p. 432, para. 47 (note 36).
- 44.
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J. Reports 1998, p. 432, paras 49–50 (note 36). Re-affirmed in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014, ibid., (note 36). In the former case, the Court ruled that ‘reservations from the Court’s jurisdiction may be made by States for a variety of reasons; sometimes precisely because they feel vulnerable about the legality of their position or policy. Nowhere in the Court’s case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations […] The fact that a State may lack confidence as to the compatibility of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations’ (para. 54). The Court continued by upholding its finding in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), Jurisdiction and Admissibility, Judgment of 26 November 1984, p. 418, para. 59 (note 33) and repeated that ‘declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations’.
- 45.
Inter alia, S Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (Martinus Nijhoff 1995). Conditions and other ‘generic’ types of reservations (e.g. of domestic jurisdiction, temporal, multilateral, commonwealth, war, etc.) remain outside the ambit of this presentation.
- 46.
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J. Reports 1998, p. 432, para. 62 (note 36).
- 47.
S Rosenne, (note 31) 794.
- 48.
G Meishan-Goh (note 26) 139, 169–191, I Diederich-Verschoor, ‘The Settlement of disputes in Space: New Developments’, 26 J. Sp. L. (1998) 41–9. Also, ILA: Report of the Space Law Committee (Helsinki 1996 & Taipei 1998), M Williams (Rapporteur) 457–476 & 239–272, respectively.
- 49.
In short, their main arguments were cases of overlapping jurisdictions, forum shopping, serious risk of conflicting jurisprudence and fragmentation of international law. Brown believes that limiting factors on the development of cross-fertilization of rules are traced in the particular drafting of constituent instruments and the fact that international courts may have their own specific agendas and functions, C Brown, A Common Law of International Adjudication (OUP 2009) 235.
- 50.
For an overview, inter alia, H Caminos, The Growth of Specialized International Tribunals and the Fears of Fragmentation in International Law in N Boschiero, T Scovazzi et al. (Eds.), International Courts and the Development of International Law (Springer 2013) 55, where the views expressed by Judge Shigeru Oda, Judge Rosalyn Higgins, Jonathan Charney, Shabtai Rosenne, Sir Robert Jennings and Bruno Simma. A Lang, ‘The Role of the International Court of Justice in a Context of Fragmentation’ (2013) 62 ICLQ 777.
- 51.
2006 YBILC II, Part 2.
- 52.
Judge P Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy’ (2007) 56 ICLQ 741.
- 53.
S Rosenne, A Role for the International Court of Justice in Crisis Management? (note 11) 61.
- 54.
V Gowlland-Debbas, Judicial Insights into Fundamental Values and Interests of the International Community in A. Müller, D Raič & J Thuranszky (Eds.) (note 1) 349.
- 55.
Oscar Chinn Case, PCIJ Ser. A/B No 63 (1934) 146, also available at http://www.icj-cij.org/pcij/serie_AB/AB_63/05_Oscar_Chinn_Opinion_Eysinga.pdf (last visit 30 Jul 2015).
- 56.
Articles 50–51 of the Statute of the Court and articles 62 & 67 of its Rules of the Court are quite clear. An excellent example can be found in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgment of 31 March 2014, para. 20–22 (note 36). A Riddel & B Plant, Evidence before the International Court of Justice (B.I.I.C.L. 2009) 62. M Mbengue, ‘Scientific Fact-finding by International Courts and Tribunals’ (2012) 3 JIDS 509. C Foster, ‘New Clothes for the Emperor? Consultation of Experts by the International Court of Justice’ (2014) 5 JIDS 139.
- 57.
Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ Ser. B No 5, 28, also available at http://www.icj-cij.org/pcij/serie_B/B_05/Statut_de_la_Carelie_orientale_Avis_consultatif.pdf (last visit 30 Jul 2015).
- 58.
Western Sahara, Advisory Opinion of 16 October 1975, Declaration of Judge Gros, I.C.J. Reports (1975), p. 73, para. 6, also available at http://www.icj-cij.org/docket/files/61/6199.pdf (last visit 30 Jul 2015).
- 59.
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion of 30 March 1950, I.C.J. Reports (1950), p. 71, also available at http://www.icj-cij.org/docket/files/8/1863.pdf (last visit 30 Jul 2015). Followed by Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint filed against the International Fund for Agricultural Development, Advisory Opinion of 1 February 2012, I.C.J. Reports (2012), p. 48, para. 96, also available at http://www.icj-cij.org/docket/files/146/16871.pdf (last visit 30 Jul 2015).
- 60.
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, I.C.J. Reports (1980), p. 88, para. 35, also available at http://www.icj-cij.org/docket/files/65/6303.pdf (last visit 30 Jul 2015).
- 61.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, I.C.J. Reports (2004), p. 156, para. 44, also available at http://www.icj-cij.org/docket/files/131/1671.pdf (last visit 30 Jul 2015).
- 62.
C Greenwood, Judicial Integrity and the Advisory Jurisdiction of the International Court of Justice in G Gaja & J Stoutenburg (Eds), Enhancing the Rule of Law through the International Court of Justice, (Brill/Nijhoff 2012) 68.
- 63.
C Weeramantry, The International Court of Justice at 50 – Introduction in C. Peck & R. Lee (Eds.) (note 17) 1.
- 64.
S Rosenne, The Perplexities of Modern International Law (Martinus Nijhoff 2004) 2. Also, S Bouwhuis, ‘The Role of an International Legal Adviser to Government’ (2012) 61 ICLQ 939.
- 65.
Sir Franklin Berman, (note 29) 13.
- 66.
Sir Herch Lauterpacht, The Development of International Law by the International Court (CUP 2010) 5.
- 67.
A Zimmermann, Between the Quest for Universality and its Limited Jurisdiction: The Role of the International Court of Justice in Enhancing the International Rule of Law in G Gaja & J Stoutenburg (Eds), (note 62) 34.
- 68.
M Shahabudeen, The World Court at the turn of the Century in A. Müller, D Raič & J Thuranszky (Eds.) (note 1) 8. Also, C Romano, ‘A Taxonomy of International Rule of Law Institutions’ (2011) 2 JIDS 241.
- 69.
League of Nations, Document Concerning the Action Taken by the Council of the League of Nations Under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (1921) 243.
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Georgilas, S.G. (2019). Judicial Settlement of Space-Related Disputes: Sovereignty’s Final Fetters. In: Kyriakopoulos, G.D., Manoli, M. (eds) The Space Treaties at Crossroads. Springer, Cham. https://doi.org/10.1007/978-3-030-01479-7_9
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