Abstract
The power of the International Court to determine its jurisdiction, as any other judicial power, cannot be analyzed in depth except in the context of the subject matter on which it is exercised. By defining this subject matter one is in fact answering the question: “What does this power mean, both to the Court and to the parties to any given dispute of which the Court is seized?” It is for this reason that an attempt to ascertain such a subject matter is carried out in this part of the study, which will however, be limited to such details as will help clarify the significance of the power in the work of the Court. In other words, the only questions that are to be raised here are those which the Court may need to answer in the course of the exercise of its power to determine its jurisdiction. This proposed limitation is subject, however, to one observation. Whereas the Court, being a judicial entity, is under no duty to give general definitions or comprehensive analyses of its jurisdictional powers, this part of the study is mainly concerned with these fundamental problems.
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References
12 cases (the Borchgrave Case being counted twice) were submitted to the Permanent Court by means of notification of a special agreement, and 6 cases (including the two phases of the Corfu Channel Case dealing with the merits and assessment) have so far been submitted to the present Court on the basis of special agreements. Two of these latter cases, other than the Corfu Channel Case, were instituted however by applications. See Appendix III (Remarks).
Notification normally includes the deposit of a copy of the agreement. When it is made by one party only “the Registrar shall forthwith notify the other party that it has been so filed” (Art. 32(a) of the Rules of the present Court). If the latter party fails to raise objections, it will be assumed that it acquiesces in the notification. See examples of this, a normal practice under the present Court, in Appendix III.
Such a possibility took place in the Borchgrave Case (Prel. Obj.), P.C.I.J., ser. A/B, No. 72 (1937), and could particularly be envisaged when a party to the agreement objects not to jurisdiction in the strict sense but to the admissibility of a specific claim as is shown infra.
It resembles, on the other hand, the institution of proceedings before municipal courts particularly in the form of “recours” known in Civil Law. See Scerni, “La Procédure de la Cour Permanente de Justice Internationale,” 65 Recueil des Cours 565, 628–9 (1938-III).
13 out of the 14 cases in which objections to the Permanent Cout’s jurisdiction were submitted were introduced by unilateral applications. As to the present Court the record shows no exception: the eighteen cases in which the preliminary objection procedure was followed were introduced by applications. This includes the Corfu Channel Case. See Appendix II.
See P.C.I.J., ser. A, No. 15 at 69–70 (Diss. Op. of Judge Nyholm). In that case, it should however be noticed, the application did rely on a pre-existing treaty but it was quite doubtful that the latter would have made a valid basis of jurisdiction.
See [1947–1948] I.C.J. Rep. 15, 35–6 (Diss. Op. of Judge ad hoc Daxner). And see, Argument of M. Vochoc, Counsel for Albania in 3 Corfu Channel Case, Pleadings, Oral Arguments and Documents 33–8 (I.C.J. 1949). In this case also the application relied on an alleged prior basis of jurisdiction. See text of application in 1 id. at 8. And see further details in Chapter IV, infra at 131.
Corfu Channel Case, [1947–1948] I.C.J. Rep. 15, 27. See also, Minority Schools Case, P.C.I.J., ser. A, No. 15 at 23–6. Both Articles 40(1) of the Statute and 32(2) of the Rules require the indication in the application of the parties involved and the subject of the dispute. The latter Article adds, inter alia, that the application “must also, as far as possible, specify the provision on which the application founds the jurisdiction of the Court ...” (Emphasis added). This was taken by the dissent in the Corfu Channel Case (first phase) as an evidence that the application must be based on an existent jurisdiction but was found by the Court as implying that “the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction.” Ibid. This was in agreement with the British Observations to the Albanian Preliminary Objection. See 2 Corfu Channel Case, Pleadings at 18. But see, Aerial Incident of 27 July 1955, Pleadings, Oral Arguments and Documents 265, 273–6 (I.C.J. 1959) (third preliminary objection of Bulgaria against the U.S. application).
See a list of these cases in Chapter II, supra, p. 58, note 3. Surprisingly enough Lauterpacht cited the first of these cases (Treatment in Hungary of Aircraft and Crew of U.S.A.) as an example of the examination of questions of jurisdiction proprio motu. See Lauterpacht, The Development of International Law by the International Court 348 (1958)
Accord, Nottebohm Case (Prel. Obj.), [1953] I-C.J. Rep. 111, 122. And see Briggs, “La Compétence Incidente de la Cour Internationale de Justice en tant que Compétence Obligatoire,” 64 Rev. Gén. Dr. Int’l Pub. 217, 222 (1960); Fitzmaurice, “The Law and Procedure of the International Court of Justice, Questions of Jurisdiction, Competence and Procedure,” 34 Brit. Yb. Int’l L. 1, 14–5 (1958); Reuter, Les Modes de Solution des Conflits Internationaux (Cours de Droit International Public — Doctorat) 300 (1958); Rosenne, The International Court of Justice 257 (1957).
“Seizing” and “seisin” are, therefore, not identical terms. See Fitzmaurice, supra, note 1 at 14, n. 2. Compare the English text of the first judgment in the Nottebohm Case where both terms are used as equivalent to the French term “saisine” [1953] I.C.J. Rep. 111, 120, 122.
See Briggs, supra, note 1 at 222–7. And see details on incidental jurisdiction in Chapter IV, infra at 169.
Accord Reuter, supra, p. 87, note 1 at 302.
See Fitzmaurice, supra, p. 87, note 1 at 15–21 and particularly at 18.
See Losinger Case, P.C.I.J., ser. A/B, No. 67 (1936) (declaration of defendant expired at midnight of the day of filing the application); Phosphates in Morocco Case, P.C.I.J., ser. A/B, No. 74 (1938) (the period for which declarations of both applicant and defendant were to run expired in the course of the proceedings but declaration of respondent was renewed as from the date of the expiry of that period. See Appendix VI, Nos. 47, 48, 74.)
See 1 Nottebohm Case, Pleadings, Oral Arguments and Documents 162, 165 (I.C.J. 1955). The Government of Guatemala contended that from the moment of the expiry of its declaration of acceptance the Court had no jurisdiction, unless Guatemala so accepted, notwithstanding the fact that the expiry of the declaration took place after the seisin.
Statement of the Observations of the Government of the Principality of Liechtenstein, id. at 172–7 and particularly at 175.
Nottebohm Case, [1953] I.C.J. Rep. 111, 122.
See the principle applied to a treaty in Hudson’s Dissenting Opinion in the Electricity Company of Sofia and Bulgaria, P.C.I. J., ser. A/B, No. 77 at 123. In that instance, however, the treaty involved had a provision to the same effect.
See [1957] I.C.J. Rep. 125, 142.
See [1963] I.C.J. Rep. 15, 36. See further details of this case in Chapter V, infra at 235–36.
A clear example of this is the change of the nationality of the person in whose favor a state pursues the case, when such a change occurs after the institution of proceedings and before the judgment. But see Administrative Decision No. V (United States-German Mixed Claims Commission), 7 U.N. Rep. Int’l Arb. Awards 119 (1924).
See the expression “the Court shall be open to the states ...” as used in Art. 35 of the Statute, and the expression “states entitled to appear before the Court” as used in Arts. 40 and 66 of the Statute and in Arts. 34, 44, 75 of the Rules of Court.
See Corfu Channel Case, [1947–1948] I.C.J. Rep. 15, 38–9 (Diss. Op. of Judge ad hoc Daxner). And see, Simpson and Fox, International Arbitration 48 (1959); Fitzmaurice, “The Law and Procedure of the International Court of Justice; International Organization and Tribunals,” 29 Brit. Yb. Int’l L. 1, 41–2 (1952); Hudson, International Tribunals 67 (1944).
See the application instituting proceedings in the S.S. Wimbledon Case in P.C.I.J., ser. A, No. 1 at 6–7. And see a discussion on the proper scope of the reservation provided for in Art. 35 of the Statute, in Chapter IV, infra at 142–43.
See P.C.I. J., ser. A, No. 6 at 11 (1925). As to the question whether this was an indication hat the Court would not review the issue proprio motu, see Chapter II, supra, p. 65, note 2.
See the text of this note in 2 Corfu Channel Case, Pleadings, Oral Arguments and Documents 25 (I.C.J. 1949).
[1947–1948] I.C.J. Rep. 4, 5 (Order of July 31, 1947).
Accord, Rosenne, supra, p. 87, note 1 at 238–9.
See [1947–1948] I.C.J.Y.B. 34.
Compare, e.g., Kelsen, The Law of the United Nations 537n. (1951) with Jully, “Le Premier Arrêt de la Cour Internationale de Justice,” 48 Friedens-Warte 144, 148–149 (1948).
See Bos, Les Conditions du Procès en Droit International Public 275 (1957). The same writer refers to another authority (Dolleman, Preliminaire Excepties voor het Internationaal Gerechtshof 48 (1949)) as saying that the Court should examine the judicial capacity of the parties only “when its absence is obvious and seems probable.” See Bos, id. at 284–5 n. 9
See Lighthouses Case between France and Greece, P.C.I.J., ser. A/B, No. 62 at 13 (1934).
See Anglo-Iranian Oil Company Case (Prel. Obj.), [1952] I.C.J. Rep. 93, 106–7. And see for the significance of the practice followed in this case Rosenne, supra, p. 87, note 1 at 314–5.
See e.g., Mavrommatis Palestine Concessions Case (Merits) P.C.I.J., ser. A, No. 5 at 27 (1925); Minority Schools Case, P.C.I.J., ser. A, No. 15 at 23–6 (1928); Chorzow Factory Case (Merits), P.C.I.J., ser. A, No. 17 at 37 (1928); Société Commerciale de Belgique Case, P.C.I.J., ser. A/B, No. 78 at 174 (1939). And see further details of jurisdiction completed by instruments or facts subsequent to the initiation of proceedings in infra at 100–1 and in Chapter IV at 128–34.
P.C.I.J., ser. A, No. 10 at 12 (1927). The statement quoted above related to the definition of the dispute submitted rather than to the Court’s jurisdiction to deal with it.
P.C.I.J., ser. A, No. 23 at 17–8 (1929).
See a view based on the Court’s statement in the S.S. Lotus Case to the effect that the Court distinguished between cases brought by a notification of a special agreement and cases brought by application, and considered subsequent submissions irrelevant in the former cases only, in Feller, “Conclusions of the Parties in the Procedure of the Permanent Court of International Justice,” 25 Am. J. Int’l L. 490, 492 (1931).
P.C.I.J., ser. A, No. 15 at 26 (1928).
Id. at 53.
See Ambatielos Case, Pleadings, Oral Arguments and Documents 24 (Mémoire Hellénique of August 30, 1951) (I.C.J. 1953).
See [1952] I.C.J. Rep. 28, 39. And see further details on this case in Chapters IV and V infra.
Id. at 51. And cf., The Monetary Gold Case, [1954] I.C.J. Rep. 19, 34.
Cf., Rosenne, The Time Factor 38–9 (1960).
See details on the effect of the modification of the case in the course of the proceedings in Chapter V.
This letter was confined to the following: “Pursuant to the instructions of my Government, I have the honour to submit to the jurisdiction of the Court under Article 36 of the Statute, the Salomon-Lozano Treaty concluded between the Governments of Peru and Colombia, this treaty not having been executed in the latter country, as will be established by evidence provided by my Goverment in due course.” P.C.I.J. Ann. Rep., ser. E, No. 9 at 76 n. 2 (1933).
Ibid. (Emphasis added).
See infra, Chapter IV at 128, and Chapter V at 201–2. And see Temple of Preah Vihear Case [1961] I.C.J. Rep. 17, 31 where the Court added only one observation: “The only formality required is the deposit of the acceptance [by means of a declaration] with the Secretary General of the United Nations under paragraph 4 of Article 36 of the Statute.”
Free Zones Case, P.C.I.J., ser. A, No. 22 at 13 (1929).
[1962] I.C.J. Rep. 319, 330. See also id. at 416 (Sep. Op. of Judge Jessup).
[1947–1948] I.C.J. Rep. 4, 5.
See e.g., the declaration of Egypt (U.A.R.) [Appendix VI, No. 34]. Whether this is a declaration proper under the Optional Clause system or an addition of a compromissory clause to the Suez Canal Convention (made by an offer from the Government of Egypt and tacitly accepted by the other parties to the Convention) has a clear effect on the Court’s jurisdiction. Only when it is characterized as a declaration would the declaring state be able to require the other parties in a given case to have adhered to the Optional Clause system and to invoke the reservations in these parties’ declarations.
See Appendix III A. As to treaties invoked as basis of jurisdiction they were all registered except the Mandates and the treaties concluded before the establishment of the League of Nations. See Appendix IV.
For the operation of the principle of forum prorogatum as a perfecting element of non-registered agreements, see Rosenne, The International Court of Justice 273 n. 1 (1957). And see, generally, Broches and Boskey, “Theory and Practice of Treaty Registration,” Part II, 4 Nederlands Tijdschrift voor Internationaal Recht 277–92 (1957).
See [1951] I.C.J. Rep. 71, 78.
Judge Armand-Ugon put to the Agents of the parties in the Monetary Gold Case (1954) the question whether the Washington Statement in which the U.S.A., the U.K. and France accepted the Court’s jurisdiction over the issue, was registered with the Secretariat of the U.N. Pending information on this question, Sir Gerald Fitzmaurice, then Agent of the U.K., submitted in his “Rejoinder” that he was not sure “that it has been the usual habit of countries to register agreements in the nature of a compromis whose specific object it is to provide for the submission of some question to an international tribunal.” He then doubted, as an example, that the special agreement for the submission of the Minquiers Case (1953) was registered. Case of the Monetary Gold Removed From Rome in 1943, Pleadings, Oral Arguments and Documents 165 (I.C.J. 1954). (In fact the special agreement for the submission of the Minquiers Case was registered in the course of the proceedings in that case. See 118 U.N.T.S. 149.) The question was not pursued in the Monetary Gold Case as it was later proved that the Washington Statement was duly registered. See Pleadings, op. cit. at 210.
See [1962] I.C.J. Rep. 319, 332. The Court based this conclusion on three grounds: a) that if the mandate was ab initio null and void because of non-registration “it would follow that the Respondent has not and has never had such a title for its administration of the territory,” b) that Art. 18 provided for registration of “every treaty or international engagement entered into hereafter by any member of the League” whereas the Mandate involved was agreed upon in fact before the Covenant took effect, and c) that “Article 18, designed to secure publicitly and avoid secret treaties, could not apply in the same way in respect of treaties to which the League of Nations itself was one of the Parties as in respect of treaties concluded among individual Member States.”
Id. at 372 (Sep. Op. of Judge Bustamante). This opinion added four grounds to the reasoning of the Court, most important among which is the argument that “the exact meaning of Article 18 of the Covenant does not ... extend to nullifying unregistered treaties ipso jure but simply creates for one of the parties the right if it wishes of raising the objection of inadmissibility of the obligation to perform the treaty. Any other interpretation will destroy the principle of good faith.”
Id. at 421 (Sep. Op. of Judge Jessup).
See e.g., [Lauterpacht] International Law Commission, Report on the Law of Treaties, U.N. Doc. A/CN.4/63 at 217–8 (1953).
Accord, Broches and Boskey, supra, p. 97, note 3 at 290–1.
See id. at 291–2; Lauterpacht, supra, note 3 at 218.
But see, Broches and Boskey, supra, p. 97, note 3 at 291–2. Although they submitted that non-registration is unlikely in most cases to defeat the objective of Article 102, they concluded that: “It is another matter to assert that that objective can never demand registration of a Special Agreement. Consequently one cannot conclude that Special Agreements as a category are not required to be registered.”
The Secretary General of the U.N. is required ex officio to register the declarations made under Art. 36(2) of the Statute after they have entered into force. See 5 Repertory of United Nations Practice, Art. 102, paras. 24, 47 at 293, 299 (U.N. Pub. Sales No. 1955, v. 2. (vol. V)).
See Right of Passage Gase (Prel. Obj.), [1957] I.C.J. Rep. 125, 146.
See, e.g., Goldschmidt, “Projet de Règlement pour Tribunaux Arbitraux Internationaux” (Présenté à l’Institut de Droit International), Art. 32(1), 6 Rev. Dr. Int’l & Lég. Comp. 421, 447, (1874); Revon, L’Arbitrage International, Son Passé — Son Présent — Son Avenir 518 (1892); Acrement, La Procédure dans les Arbitrages Internationaux 157 (1905); Carlston, The Process of International Arbitration 64–6 (1946).
See P.C.I.J., ser. D, No. 2 (3d Add.) 67–9, 845. Defects in the application may also be rectified by subsequent documents submitted by the applicant itself. See Interpretation of the Statute of the Memel Territory, P.C.I.J., ser. A/B, No. 49 at 351 (1932) (Diss. Op. of Judge Anzilotti). On the other hand, if the application was not invalid at the time when it was filed it “must be considered as real and as remaining real unless it is formally withdrawn.” Monetary Gold Case, [1954] I.C.J. Rep. 19, 29, 30.
3 Corfu Channel Case, Pleadings, Oral Arguments and Documents 47 (Exposé de M. Vochoc).
Id. at 49.
[1947–1948] I.C.J. Rep. 15, 45 (Diss. Op. of Judge ad hoc Daxner).
Accord, Chung, Legal Problems Involved in the Corfu Channel Incident 83–4 (1959).
[1961] I.C.J. Rep. 17, 34. And see Separate Opinion of Judge Morelli, in id. at 45 to the effect that invalidity “could reside only in a genuine nullity, a nullity absolute and ipso jure [Ft. nullité absolue et de plein droit]. See also, Mavrommatis Palestine Concessions Case P.C.I.J., ser. A, No. 2 at 34 (1924).
This obviously presents a problem different from the problem of litispendence when different instruments confer jurisdiction over a given question on the Court as well as on other organs. This latter problem is dealt with in Chapter V, infra at 257–61. The problem discussed above is also different from the problem created when one or more instruments confer two types of jurisdiction, one advisory and one contentious, in relation to the same subject matter. This problem is dealt with in Chapter IV, p. 125, note 1.
See P.C.I.J., ser. C., No. 83 at 10, 67, 83, 116, 129. And see, Hudson, The Permanent Court of International Justice 475–6 (2d ed. 1943).
See examples of treaties made subsequent to declarations free from the reservations included in the latter, of treaties that have been modified to take account of declarations made by the parties thereto, and of the possibility of the modification of declarations by means of bilateral instruments in Hudson, id. at 468, 473–5.
P.C.I.J., ser. A/B, No. 77 at 76 (1939).
Id. at 77, 80, 83. But see, id. at 90 (Diss. Op. of Judge Anzilotti), at 103–5 (Diss. Op. of Judge Urrutia), at 109–12 (Diss. Op. of Judge Van Eysinga), and at 123–32 (Diss. Op. of Judge Hudson). All these dissenting judges agreed that the treaty should have prevailed. But whereas Judge Anzilotti found the effect of the treaty to be “not the abrogation of the Declarations but its temporary suspension,” id. at 93, Judge Urrutia denied that the treaty had cancelled, abrogated or suspended the legal effects of the declarations finding instead that it made them “subject to such conditions that, during the term of the treaty, the Court’s jurisdiction may only be exercised in accordance with those conditions.” Id. at 105.
Certain Norwegian Loans Case, Pleadings, Oral Arguments and Documents 163, 173 (I.C.J. 1957).
[1957] I.C.J. Rep. 9, 25.
But see id. at 71–3 (Diss. Op. of Judge Basdevant).
See Charles de Visscher, Problèmes d’Interprétation Judiciaire en Droit International Public 214 (1963).
Rosenne, supra, p. 87, note 1 at 274. The statement quoted above clearly supports the Court’s power to consider a jurisdictional title not raised by the applicant.
See generally, Verzijl, “Affaire Relative à Certains Emprunts Norvégiens,” 4 Nederlands Tijdschrift voor Internationaal Recht 373, 395 (1957).
Mavrommatis Palestine Concessions Case, P.C.I.J., ser. A, No. 2 at 29–30 (1924).
See Free Zones Case, P.C.I.J., ser. A, No. 22 at 12, 15 (Order of August 19, 1929); id., ser. A, No. 46 at 161 (1932).
See e.g., Right of Passage Case, [1957] I.C.J. Rep. 125, 141–4.
See e.g., Judgments of the Administrative Tribunal of the I.L.O., [1956] I.C.J. Rep. 77, 84 (Adv. Op.) (The decisive factor in assuming jurisdiction in this case was, in fact, the compatibility of the instrument conferring jurisdiction (Statute of the Administrative Tribunal of the I.L.O., Rule XII) with the Statute of the Court.) And cf., The Voting Procedure of the General Assembly in the Matter of Petitions from South-West Africa, [1955] I.C.J. Rep. 67, 76 (Adv. Op.) where, speaking of the General Assembly, the Court affirmed the principle that an organ cannot act except in accordance with its constituent instrument.
See the statutory rules described as “constitutional provisions” in the Free Zones Case, P.C.I.J., ser. A, No. 22 at 13 (1929). And see the term as used in Hudson, supra, p. 102, note 2 at 413; Reuter, Les Modes de Solution des Conflits Internationaux 289 (1958).
Minority Schools Case, P.C.I.J., ser. A, No. 15 at 22 (1928); Chorzow Factory Case (Merits), P. C.I.J., ser. A, No. 17 at 37 (1928). The Court acted upon this principle when it exercised its jurisdiction on matters governed by municipal law in the Serbian Loans and the Brazilian Loans cases (ser. A, No. 20/21 (1929)). But see, Bruns, “La Cour Permanente de Justice Internationale, son Organisation et sa Compétence,” 62 Recueil des Cours 551, 632–6 (1937-IV).
See Chapter II, supra, at 47–52, and Chapter VI, infra.
Carlston, The Process of International Arbitration 169–70 (1946). (Emphasis added).
For the Court’s attitude in the ascertainment of jurisdictional facts, see Chapter V, infra, at 239–57. And see Simpson and Fox, International Arbitration 198–9 (1959) for the attitude of arbitral tribunals.
See Smith, The Relation between Proceedings and Premises no (1962).
See e.g., Nottebohm Case (First Phase), [1953] I.C.J. Rep. 111, The Anglo-Iranian Oil Co., [1952] I.C.J. Rep. 93; Aerial Incident of 27 July 1955 (Israel v. Bulgaria), [1959] I.C.J. Rep. 127; Temple of Preah Vihear Case (Prel. Obj.), [1961] I.C.J. Rep. 17.
See e.g., Mavrommatis Palestine Concessions Case, P.C.I.J., ser. A, No. 2 (1924); Pajzs, Csdky, Esterházy Case, P.C.I.J., ser. A/B, No. 68 (1936); Panevezys-Saldutiskis Railway Case, P.C.I. J., ser. A/B, No. 76 (1939); Electricity Company of Sofia and Bulgaria, P. C.I.J., ser. A/B, No. 77 (1939); Nottebohm Case (Second Phase), [1955] I.C.J. Rep. 4; Interhandel Case, [1959] I.C.J. Rep. 6, South-West Africa Cases, [1962] I.C.J. Rep. 319.
See generally, Parisot et Jauffret, Manuel de Procédure Civile 17–18 (7th ed. 1962); 1 Solus et Perrot, Droit Judiciaire Privé 290–1 (1961); Tunc, Cours de Procédure Civile 57–9 (1961).
The S.S. Wimbledon, P.C.I.J., ser. A, No. 1 at 20 (1923).
Mavrommatis Palestine Concessions Case, P.C.I.J., ser. A, No. 2 at 10 (1924).
Ibid.
P.C.I.J., ser. A, No. 6 at 13. This was the contention that a submission in the application was equivalent to a request for an advisory opinion.
Id. at 19.
See e.g., Losinger Co. Case, P.C.I.J., ser. A/B., No. 67 at 23–24 (Order of June, 27 1936, joining both the objections against jurisdiction and those against admissibility to the merits); Pajzs, Csáky, Esterházy Case, P.C.I.J., ser. A/B No. 68 at 51 (1936).
See e.g., Electricity Company of Sofia and Bulgaria, P.C.I.J., ser. A/B, No. 77 at 141 (J939) (Sep. Op. of Judge Erich). And cf., Minority Schools Case, P.C.I.J., ser. A, No. 15 at 69 (1928) (Diss. Op. of Judge Negulesco, who, however, wanted to assimilate the plea against jurisdiction before the Court to the fin de non-recevoir so that it could be raised at any stage of the proceedings.)
2 Corfu Channel Case, Pleadings, Oral Arguments and Documents 25–6 (Original French text in 5 id. at 136–138).
2 id. at 9–12.
Corfu Channel Case (Prel. Obj.), [1947–1948] I.C.J. Rep. 27.
[1952] I.C.J. Rep. 93, 114.
[1953] I.C.J. Rep. 10, 23.
See Chapter II, supra, at 76–77.
“Once this condition has been satisfied — wrote the Court referring to the condition of a valid seisin — the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits.” [1953] I.C.J. Rep. 111, 123.
See [1959] I.C.J. Rep. 6, 23–4. And see details of this case in Chapter VI.
Id. at 29–30.
See id. at 54 (Sep. Op. of Judge Spender); at 78–9 (Diss. Op. of J. Klaestad); at 85 (Diss. Op. of Judge Armand — Ugon); and at 95–100 (Diss. Op. of Judge Lauterpacht). It is interesting to observe here that in his dissenting opinion in the Norwegian Loans Case, [1957] I.C.J. Rep. 9, 34, Judge Lauterpacht dealt first with the objection related to the character of the dispute, id. at 35–8, then with the question of the exhaustion of local remedies, id., at 39–41, and finally with the objection to jurisdiction founded on the “self-judging” reservation, id. at 43–66.
See [1962] I.C.J. Rep. 319, 349, 386 (Sep. Op. of Judge Bustamante).
See id. at 449.
Id. at 328. The use of the preposition “or” demonstrates again the uninterestedness of the Court in characterizing the issue one way or the other. However, this point was generally dealt with in the individual opinions as a matter of admissibility. See Chapter V, infra for further details on the requirement of a dispute between the parties to the case.
Id. at 565.
See e.g., Wittenberg et Desrioux, L’Organisation Judiciaire, la Procédure et la Sentence Internationales 103 (1937); Bos, Les Conditions du Procès International 256 (1957).
[1962] I.C.J. Rep. 319, 574 (Emphasis added.) It should be noticed that the validity of the application is commonly dealt with as a condition of a valid seisin of the Court (that comes before jurisdiction) and not as a condition of the admissibility of the claim. But see, Corfu Channel Case (Prel. Obj.) [1947–1948] I.C.J. Rep. 15, 27.
Accord, Fitzmaurice, “The Law and Procedure of the International Justice . . .,” 34 Brit. Yb. Int’l L. 1, 12–13 (1958); Rosenne, The International Court of Justice 354 (1957). And see Chapter II, F, supra.
A less significant consequence may, however, result from the differentiation; if the question of jurisdiction is agreed upon between the parties each can still raise objections against admissibility. But see the Borchgrave Case, P.C.I.J., ser. A/B, No. 72 (1937), where Spain objected to both the jurisdiction of the Court and the admissibility of the claim though the case was submitted by means of the notification of a special agreement between the parties. Another practical difference arises, as will be shown, in regard to the question of the joinder of the preliminary objection to the merits.
It is “logical” because the alternative solutions lead to unacceptable results. As Lauterpacht put it, “if in such cases the [Court] declines jurisdiction there is the danger that it may have done so by reference to pleadings which lack completeness, [and if] it declares itself competent it may do so in reliance upon a reasoning which prejudges some of the aspects of the case upon the merits.” Lauterpacht, The Development of International Law by the International Court 113 (1958).
P.C.I.J., ser. A, No. 6 at 15 (1925).
P.C.I.J., ser. A/B, No. 52 at 15 (Order of 4 February 1933).
See Pajzs, Csáky, Esterházy Case, P.C.I.J., ser. A/B, No. 66 at 9 (Order of 23 May 1936); Losinger Co. Case, P.C.I.J., ser. A/B, No. 67 at 23 (Order of 27 June 1936); Panevezys-Saldutiskis Railway Case, P.C.I.J., ser. A/B, No. 75 at 56 (Order of 30 June 1938). It was in this “frequency of the joinder of jurisdictional objections to the procedure on the merits” that Lauterpacht found “an instructive example of the attitude of caution in the matter of jurisdiction.” See Lauterpacht, supra, p. 113, note 1, at 113.
The preliminary objection was joined to the merits by the agreement of the parties in the Norwegian Loans Case (See [1957] I.C.J. Rep. 9, 12) and two of the six bases of the Indian objection in the Right of Passage Case were joined to the merits by the Court’s decision dismissing the other four grounds (see [1957] I.C.J. Rep. 150, 152).
Panevezys-Saldutiskis Railway Case, note 2 at 56.
See Appendix II. (The South-West Africa Cases (1962) are counted as two cases.)
See Ambatielos Case, [1952] I.C.J. Rep. 28, 48 (Indiv. Op. of Judge Levi Carneiro).
Judgment of the Administrative Tribunal of the I.L.O. (Adv. Op.), [1956] I.C.J. Rep. 77, 123 (Diss. Op. of Judge Badawi, referring to the jurisdiction of the Administrative Tribunal). Cf., Acquisition of Polish Nationality Case (Adv. Op.), P.C.I.J., ser. B. No. 7 at 22 (Observations by Lord Finlay): “The question of relevancy is in its nature preliminary, but if it depends on a point which is also decisive of the merits, both questions may most properly be considered together.”
In this light one can easily understand the insistence of Judge Lauterpacht, in the Interhandel Case, that the question of the validity of the U.S. declaration could not be joined to the merits. See [1959] I.C.J. Rep. 99, 100.
Fitzmaurice, supra, p. 112, note 2 at 25.
See Judge Read’s dissent in the Judgment of the International Tribunal of the I.L.O. (Adv. Op.), [1956] I.C.J. Rep. 77, 143 where he wrote that the notion of jurisdiction “applies at all stages of proceedings: commencement; pleadings; oral proceedings; and above all, at the crucial stage, delivery of judgment,” and that “it is the duty of every tribunal ... to satisfy itself that it is competent to deliver the judgment ...” As a result, Judge Read defined the merits to be “the question whether the decision is right or wrong.”
Salvioli, “Les Rapports entre le Jugement sur la Compétence et celui sur le Fond dans la Jurisprudence Internationale,” 36 Rev. Gén. Dr. Int’l Pub. 108, 112 (1929). This conclusion was based on the assumption that an objection against jurisdiction amounts to an assertion that the act in dispute was not committed in violation of the rule the violation of which confers jurisdiction on the Court. “Ainsi, inévitablement, en tranchant la question de compétence on préjuge le fond.” Id. at 111.
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Shihata, I.F.I. (1965). The Process of the Court’s Determination of Its Substantive Jurisdiction. In: The Power of the International Court to Determine Its Own Jurisdiction. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5908-3_4
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