One need not profess adherence to that school of legal thought which conceives of law as “the prophecies of what the courts will do in fact,” in order to recognize the prominance of the part played by courts in the development of law. Montesquieu’s assertion that judges are nothing but “la bouche qui prononce les paroles de la loi1 has long been abandoned. Instead, it is now realized that judicial organs have possibly preceded legislative organs in different domestic legal systems.2 This, at any rate, is obviously so in relation to international law. In this system the centralization of the “law-applying” function has partly been accomplished, whereas centralized universal “law-making” and “law-enforcing” organs are yet lacking. “Natural legal evolution — wrote Kelsen — tends first toward an international judiciary, and not toward international government or legislation.”3


International Tribunal Arbitral Tribunal Judicial Action Legal Thought Arbitral Award 
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  1. 1.
    Montesquieu, L’Esprit des Lois, Liv. XI, ch. VI at 181 (Edit. de Leyde 1749).Google Scholar
  2. 2.
    See Kelsen, “Compulsory Adjudication of International Disputes,” 37 Am. J. Int’l L. 397, 400 (1943) Politis, La Justice Internationale, 252–53 (1924). Compare, Lauterpacht, The Function of Law in the International Community, 423–25 (1933).Google Scholar
  3. 3.
    Kelsen, supra, note 2 at 400.Google Scholar
  4. 4.
    See L. Gross, “Some Observations on the International Court of Justice,” 56 Am. J. Int’l L. 33, 41 (1962); Delbez, Les Principes Généraux du Contentieux International, 15 (1962).Google Scholar
  5. 1.
    The consensual basis of jurisdiction is not altogether alien to domestic courts. It is generally the rule in cases brought against Governments before such courts that jurisdiction could in principle be exercised only after the Government involved has waived its judicial immunity either on ad hoc basis or by a general enactment. Even in private suits, the consent of the parties has been the test of jurisdiction in exceptional cases. This latter phenomenon was known in Roman law under the name of jurisdictio in consentientes. Known now as “prorogated jurisdiction,” it still has modern applications. See e.g., I Erskine, An Institute of the Law of Scotland, 42 (new ed. Macallan 1838); Tunc, Cours de Procédure Civile, 235–8 (1961).Google Scholar
  6. 2.
    It is pendantic to affirm the importance of jurisdictional issues in the jurisprudence of the International Court. More has been written in the work of the present Court on jurisdiction than on the merits. Out of the 28 judgments rendered by this Court 15 judgments related exclusively to jurisdiction and admissibility. [See Appendix I]. In fact only 9 out of these 28 judgments did not deal with issues related to the Court’s jurisdiction [Appendix II-B]. As to the Permanent Court, 8 judgments out of a total of 31 related only to jurisdiction (besides the first interlocutory judgment accepting Poland’s intervention in the S.S. Wimbledon (1923)) [Appendix I]. Jurisdictional questions, were discussed in 15 other judgments, leaving only 7 judgments where no jurisdictional issue was mentioned [Appendix II-A]. The importance of the question of jurisdiction is not less apparent in the advisory function of the Court as will later be shown.Google Scholar
  7. 3.
    See Maine, On Early Law and Custom, 389 (1890).Google Scholar
  8. 4.
  9. 5.
    Stat. Int’l Ct. Just., art. 34, para. 1.Google Scholar
  10. 1.
    Cf., Lauterpacht, The Development of International Law by the International Court, 201 (1958). And see Ch. de Visscher, Theory and Reality in Public International Law, 345 (Trans. by Corbett, 1957).Google Scholar
  11. 2.
    Rosenne, The International Court of Justice, 338 (1957).Google Scholar
  12. 3.
    Arbitrators were withdrawn from abritai tribunals after unfavorable decisions affirming the tribunals’ jurisdiction. A noted example of this is the recall of the Rumanian arbitrator from the Hungarian-Roumanian Mixed Arbitral Tribunal after its decision in the Hungarian Optants case (Kulin v. Etat Roumain, 7 Rec. des déc. des trib. arb. mixtes, 138 (1927)). See Deák, The Hungarian-Rumanian Land Dispute, 74 (1928). Withdrawal of national arbitrators resulted also in suspending or ending the arbitral procedure before the first French-Mexican claims commission, see its Decision No. 23, in 5 U.N. Rep. Int’l Arb. Awards, 559 (1929), and in the German-United States Mixed Claims Commission in the case of Lehigh Valley Railroad Company where a decision was eventually given in the absence of the German Commissioners. See 8 id. at 225 (1939). Before international courts, where their institutionalized nature makes such a withdrawal unlikely, some Governments responded to unfavorable decisions on jurisdiction by absenting themselves from further proceedings. See the telegram of the Albanian Government dated 15.11.1949 in 2 Corfu Channel Case, Pleadings, Oral Arguments, and Documents 288 (I.C.J., 1949), and the last judgment in this case in [1949] I.C.J. Rep., 244, 248.Google Scholar
  13. 4.
    For a list of arbitral awards refused execution on the basis of an alleged excessive excercise of jurisdiction (excès de pouvoir) on the part of the tribunal, see Carlston, The Process of International Arbitration, 88–155 (1946); Hambro, L’Exécution des Sentences Internationales, 11–29 (1936). It will be shown that the same basis was invoked in the only instances where a decision or an order of the Court were not complied with.Google Scholar
  14. 1.
    Bos, Les Conditions du Procès en Droit International Public [19 Bibliotheca Visseriana], 103 (1957). And see Hudson, International Tribunals, 130–1 (1944).Google Scholar
  15. 2.
    See Lauterpacht, The Development of International Law by the Permanent Court of International Justice, 105 (1934): “Once a State has accepted the jurisdiction of the Court in a given case or generally, the metaphysical majesty of sovereignty has largely departed from it ....” But cf., 2 Oppenheim, International Law, 64–65 (7th ed. Lauterpacht 1952).Google Scholar
  16. 3.
    Stat. P. Ct. Int’l Just., art. 36, para. 4; Stat. Int’l Ct. Just., art. 36, para. 6.Google Scholar
  17. 4.
    See the Letter From the Minister of Foreign Affairs of Guatemala dated September 9, 1952 addressed to the President of the Court, in, 1 Nottebohm Case, Pleadings, Oral Arguments and Documents 162, 166 (I.C.J. 1955).Google Scholar
  18. 5.
    Lauterpacht, supra, p. 3, note 1 at 95–96.Google Scholar
  19. 1.
    See a reference to the dangers involved in letting English courts determine the limits of their jurisdiction before the Great Law Reform, in Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951–1954: Questions of Jurisdiction, Competence and Procedure,” 34 Brit. Yb. Int’l L. 1, 26 n. 5 (1958).Google Scholar
  20. 2.
    See the Report of Leon Bourgeois on the Draft of the Advisory Committee of Jurists for the Establishment of a Permanent Court of International Justice, presented to the Council of the League of Nations on August 3, 1920. Société des Nations, Cour Permanente de Justice Internationale 23 (1920).Google Scholar
  21. 3.
    Rosenne, supra, p. 3, note 2 at 249. And see a detailed distinction between internal and international adjudication in Balasko, Causes de Nullité de la Sentence Arbitrale en Droit International Public, 1–5 (1938). See also infra, Chapter II at 68 for the application of the concept of excès de pouvoir to international decisions, and Chapter III at 107 for the distinction between jurisdiction and admissibility.Google Scholar
  22. 4.
    Case Concerning Certain German Interests in Polish Upper Silesia, P.C.I.J., ser. A, No. 6 at 19 (1925).Google Scholar
  23. 1.
    In the Mavrommatis Palestine Concessions Case (1924), M. Politis (Counsel of the Greek Government) suggested that the very invocation of objections to the jurisdiction of the Permanent Court was “l’imitation d’une habitude courante dans les moeurs judiciaires des pays anglo-saxons ...” P.C.I.J., ser. C., No. 5-I at 43 (1924). This remark was refuted in the dissenting opinion of Judge Moore who found that the Court’s ascertaining of its jurisdiction was an “elementary conception common to all systems.” P.C.I.J., ser. A, No. 2 at 57–8 (1924). It should be particularly noticed in this respect that in the domestic field objections to jurisdiction present themselves mainly as questions of forum (which of two or more possible forums is the correct one), whereas in the international field the question is usually whether the parties have agreed that any tribunal at all has jurisdiction. See Fitzmaurice, supra, p. 5, note 1 at 11; Rosenne, supra, p. 3, note 2 at 249. And see The Anglo-Iranian Oil Co. Case (Interim Measures), [1951] I.C.J. Rep., 89, 96 (Joint Diss. Op. of Judges Winiarski and Badawi).Google Scholar
  24. 2.
    See Nottebohm Case, [1953] I.C.J., 111, 119. And see details in Chapter I, infra.Google Scholar
  25. 3.
    See this term as used in the Nottebohm Case, id. at 121 and in the case concerning the Effect of Awards of Compensation made by the United Nations Administrative Tribunal, [1954] I.C.J. Rep., 47, 58–9 (Adv. Op.).Google Scholar
  26. 4.
    See Lauterpacht, supra, p. 3, note 1 at 201, 202, 205. Even the framers of the present Statute “confidently anticipated that the jurisdiction of this tribunal [the International Court of Justice] will be extended as time goes on ...” Report of Mr. Al-Farsy, the Rapporteur of Committee IV/1 to Commission IV of the San Francisco Conference, Doc. 913, IV/1/74(1) 1 13 U.N. Conf. Int’l Org. Docs. 381, 393 (1945).Google Scholar
  27. 1.
    Instead, the Court has preferred to use in this context terms such as “competence” and “power.” See examples of this practice and an explanation of its wisdom in Rosenne, “The Advisory Competence of the International Court of Justice,” 30 Éevue de Droit International (The Int’l L. Rev.) 10, 12–3 (Geneva, 1952).Google Scholar
  28. 2.
    See an extract from the minutes of the discussions that took place between the members of the Permanent Court on the occasion of the last revision of its Rules of procedure, in P.C.I.J., ser. D, No. 2 (4th Add.) at 248–9 (1936).Google Scholar
  29. 3.
    See Letter of the Czechoslovak Government dated 16 January 1950 addressed to the Registrar of the Court, Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Pleadings, Oral Arguments, and Documents 204 (I.C.J. 1950).Google Scholar
  30. 4.
    Rosenne, supra, note 1 at 32.Google Scholar
  31. 1.
    “Were one jurisdictional issue leads to another, and the first jurisdictional issue is whether the tribunal has jurisdiction to determine the second, then the second issue might, in relation to the first, be said to constitute the ‘merits’ of the case. Fitzmaurice, supra, p. 5, note 1, at 23.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1965

Authors and Affiliations

  • Ibrahim F. I. Shihata
    • 1
  1. 1.S.J.D.HarvardUSA

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