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Recourse to the International Court of Justice

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Palais de la Paix, siège de la CIJ à La Haye.

The peaceful settlement of inter-State disputes 
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The International Court of Justice (ICJ) sits in The Hague and is the principal judicial organ of the United Nations and of public international law in general. The Court has global legitimacy because it is a World Court, composed of judges from all countries of the world as set out in Article 9 of the Statute of the Court, and in addition, the Court is generalist in matters of public international law and this quality is the only one it possesses. By "generalist" we mean the fact that disputes and disputes of any kind between two or more States can be brought before the International Court of Justice. "Any" means that it can cover any subject of public international law: it can be maritime delimitation, immunity issues or whaling in Antarctic waters, territorial delimitation issues or the seizure of documents concerning persons protected by immunity.

There is no other international court with such general jurisdiction. Any other court will have limited material jurisdiction, sometimes also personal and limited. If we take the Law of the Sea Court with its headquarters in Hamburg, it deals with the law of the sea and is a conventional court under the Montego Bay Convention on the Law of the Sea and ensures the application and interpretation of that Convention. As this convention concerns the whole of the law of the sea, it is a fairly broad competence, but nevertheless limited, we cannot go to a dispute concerning immunities before a court of the law of the sea, for that to happen, we must go to the International Court of Justice. On the other hand, a dispute concerning the law of the sea may well be brought before the International Court.

When an arbitral tribunal is continued, it is quite possible to mandate arbitrators to deal with any question of international law or even any other issue, but the arbitration is limited in time, but also in personal extension. In time because it deals with a case or a series of cases and it disappears unlike the International Court of Justice, and the arbitral tribunal is also limited as to the parties, because generally, arbitration deals with a dispute between two States, and the arbitral tribunal is constituted by the two States in dispute and constitutes the common body. Third States may not intervene in proceedings before the arbitrator, as the arbitrator is a body of the States in dispute that have concluded the arbitration agreement.

The second remark on the International Court is whether the International Court is there to ensure the rule of law in international affairs? Is it a viable prospect to consider the International Court of Justice as a World Court? As a profession of faith, it is possible to say that the Court should do this, these are opinions on which there is no exclusive or scientific truth. The Court, as it is structured today in positive law, is as perceived by the litigants of States; its mission is, of course, to promote what was sometimes called the rule of law, but that this mission is only one part of these activities, the Court's main task and function is to settle disputes between States in such a way as to resolve the causes of tension and conflict. The resolution of the dispute is the contribution that the Court is being asked to make.

With regard to the rule of law and the settlement of disputes, not exclusively mutual, but in any case with a preponderance of one over the other and a fairly clear preponderance, in fact, is reflected in a whole series of realities. First of all, in the jurisprudence of the Court, the Court has declared itself for a very long time, since the distant past of the Permanent Court of International Justice. As early as the case law of the Permanent Court of International Justice, in a series of cases, the most famous of which is probably the free zones case, which was among others the Pays de Gex free zones at the end of the 1920s, the Court emphasized, by writing a sentence that has gone down in history, as what "a substitute for direct and friendly settlement between the parties". The term "substitute" means that the Court perceives itself as being subsidiary to the direct settlement is amicable between the parties.

If the parties in dispute can agree directly with each other, then the ICJ can dismiss the case and strike it from its list, it considers that the direct agreement between the parties is better than a judgment that it can give itself. The reason is that, first, when the parties agree on themselves and feel that they have not been condemned to something, but have reached an agreement, they live better with the agreement and it is more likely to contribute to a definitive settlement and to purge the dispute; and this is the great goal in international relations where tensions are already high. But also and in addition, the agreement between the parties means that the parties have been able to consider the whole of their dispute in all its psychological, social, economic, political and legal dimensions; while the International Court, for its part, will reduce the dispute to its legal aspects, which are the only ones it can deal with without any excess of power. The Court is careful not to exceed its powers. It is in a more global and balanced agreement, not only on an aspect such as the tip of the iceberg with all the part that remains submerged dangerous and sharp for the ships that would venture into its waters. It is possible to make an overall work is to consider the whole iceberg when you get it right.

It is for this reason that the Court claims to be a substitute, this jurisprudence is continuous, it has been constant since the 1920s, i.e. since the very beginning of the Permanent Court. What has just been said is that in international relations, the preference is to settle disputes by creating new law because reaching an agreement between the States in dispute consists in creating new standards, seeking new balances, finding viable compromises, it is a function of legislation. Disputes are settled not by the application of existing law, but by the creation of new law. In both cases, the dispute is resolved to some extent within the sphere of law. Even if the agreement is a legislative and therefore a political function, the law is not evacuated because the result obtained, if there is a result and disputes are resolved, if there is such an agreement, the result recorded in the agreement is consolidated in legal terms, but by amending existing law rather than by applying pre-existing law. The consequence is that the rule of law does not have the same value in international cases as in domestic cases. When in domestic cases, there is a contract, we will go before the judge, it will not necessarily be through the creation of new rights that we will settle it. In international cases, it will be more than otherwise, and therefore the pre-eminence of law being weaker, it also explains why the Court itself does not consider it necessary to change its case law on the substitute.

It is important to see this, because it leads to the understanding that the International Court of Justice is above all a court of justice of services. It is a Court that provides services, there is no compulsory jurisdiction that would be incompatible with their sovereignty, there is not even an obligation to go through the Court, there is freedom of choice of means, it is possible to prefer negotiation, to prefer mediation or to establish arbitration, the Court is open, but it is perfectly possible not to go to the Court of Justice. It also relativizes the rule of law since there is the choice of settling the dispute through political or legal means. If these disputes are to be resolved by political means, the rule of law is again dismissed. Once the Court is seized, it considers itself to be subsidiary to any agreement it may wish to reach. The Court always gives States the possibility to negotiate directly, for example by suspending the procedure and giving the possibility to seek a solution to disputes directly and to return to the Court if the solution is not found.

La Cour internationale de Justice : généralités et compétences[edit | edit source]

General information[edit | edit source]

The Permanent Court of International Justice and the International Court of Justice? What is this all about? It is not the same Court because it has a different name, and because if it were the same, it would have the same name. What is he doing? This is above all a historical point.

The Permanent Court was independent of the League of Nations, it is not an organ of the League of Nations, but it was financed by the budget of the League of Nations. The International Court of Justice, in Article 7 of the Charter, says that it is the principal judicial organ of the United Nations, but Article 7 in paragraph 1 is not precise in terms of technical legal matters because obviously an International Court of Justice, and above all the organ of the parties to the Statute of the Court. It is possible to be a party to the Statute of the Court without being a member of the United Nations, there are also States Parties to the Court, but not members of the United Nations, but which are part of the "ICJ community", so it is more than the main organ of the United Nations, it is mainly the organ of States Parties to the Statute.

The Permanent Court was created in 1920 at the time of the League of Nations, it was provided for in Article 14 of the Covenant of the League of Nations which provided for this Court. It had practically the same missions as the current Court and was dissolved in 1948 for reasons related to technical problems and not to a disallowance by the Permanent Court; on the contrary, it was a highly successful Court since the Permanent Court's judgments were all executed from 1920 to 1946. Having all the stops executed in such a turbulent period is a good assessment. It was dissolved in 1946 for technical reasons. The International Court of Justice was created by taking over almost word for word the Statute of the Permanent Court.

So, from a legal point of view, there is no continuity between the two jurisdictions, the current Court is not the successor of the Permanent Court, it is a new jurisdiction. Nevertheless, from a material, and therefore not a formal, point of view, the current Court is indeed the successor of the former Court. First of all, because the statute is almost identical, only cosmetics, very small things have been modified, and it has also been necessary to update the procedure for electing judges, but also to modify terms, and this is also reflected in the fact that the current Court cites the case law of the former Court as being its own. Moreover, a tribute to the Permanent Court, when the current Court cites the case law, its case law, it does so in chronological order, it starts with the oldest judgments, always leading to a Permanent Court judgment on almost all questions because there is almost always a precedent dating from the 1920s and rather from 1922 which is the first case becoming the Permanent Court until 1940 which is the last case registered.

Personal competence[edit | edit source]

The term "competence" always means a legal power to do something. On the other hand, questions of jurisdiction and admissibility are of particular importance in courts. A political body is often and easily led to believe that it can talk and treat everyone. A legal body cannot ignore the limits and limitations imposed on its competence. There is a nuance between "limit" and "limit", the "limit" being something inherent, and the "limitation" is something that is voluntarily imposed from the outside.

The judge knows that he is not allowed to talk about everything he wants, even if only because he is there to apply the law and nothing else, at least in principle. By the "principle", it is not that he usurps his powers, it is that sometimes there are unusual functions that the judge may be granted, in particular to judgments ex aequo et bono under Article 38§2 of the Statute. The International Court, at least since 1920, has never been allowed to rule in pure fairness, but the Statute would allow it to do so. But this would go beyond the applicable positive law.

These are issues of great importance because applying the law also means applying the limits that the law sets for the judicial function. It would be that not properly applying the law that ventures into areas that are not covered by the jurisdiction to do. That is why the International Court of Justice has an important part of the case law devoted to questions of jurisdiction and admissibility, perhaps 30% to 35% of the case law is devoted to it, there are huge judgments of several hundred pages which only deal with these preliminary questions - can it be expressed on the merits - so there are battles of proceedings upstream to determine exactly how far the Court can express itself, or even not.

With regard to jurisdiction, there are the three main grounds, namely personal, material and consensual jurisdiction.

Personal jurisdiction in the ICJ means, in contentious proceedings, that only States may be parties to a case before the Court. You have to be a State in order to be able to appear before the Court, either as plaintiff or defendant. This is also true for so-called "incidental" proceedings, here again, it is necessary to be a State in order to be able to intervene before the Court within the meaning of Articles 62 or 63 of the Statute.

What is an incidental procedure? Imagination is an important weapon of the lawyer, a lawyer is not a good lawyer if he is simply someone who knows the paragraphs well in a dry and uninspired way. Imagination is not only very important because we are sometimes confronted with entirely new and unexpected questions, and we must be able to imagine arguments quickly enough to be powerful enough to convince without having been able to prepare ourselves at length. The terms mean what they mean, when we say "incident", it means something. An incidence is something that is grafted onto something else, it is an incident in relation to something main, just as the seat is grafted onto the main and that is why it is separated by commas to indicate the mental excursion. These proceedings we are talking about are proceedings that are grafted onto a case already before the Court. Two States have a dispute before the Court on any issue, another State considers itself concerned by this legal issue because it is also affected by the dispute and is also a party to the treaty governing the issue. Since the procedure has already been initiated, it is possible, under a series of conditions, to intervene, i.e. open an incise, a lateral procedure in order to be heard. This means that it would be possible to submit procedural documents and plead before the Court. This is an incident of procedure, the main proceedings are taking its course and there are small apartheids with, for example, the intervention of a third State, a request for the indication of provisional measures to ensure that the subject matter of the dispute is protected and that the defendant does not resort to attitudes that would have the effect of completely sterilising the utility of the final judgment once it has been delivered. This means that a procedure before the Court can be enriched like a molecule of a whole series of lateral arms, tentacles that have complicated it and met the demands of justice.

Material competence[edit | edit source]

With regard to material competence, there must be a dispute, it must be of a legal nature and, in principle, it must concern the application or interpretation of norms of international law.

Consensual competence[edit | edit source]

Consensual jurisdiction is the most important and controversial jurisdiction. It is rare for the Court to have to consider whether an entity appearing before it is a State or not. When Germany presents itself and Italy is on the other side, the Court will not ask itself whether Germany is a State and whether Italy is a State, it would, moreover, be, if it did, seriously discourteous. It is therefore very rare for this question to arise, but it may arise, it may arise mainly in order to determine whether a State is a party to the Statute or not; which is not an absolute condition for remaining before the Court, but if a State is not a party to the Statute, there are stricter conditions for going before the Court. Whether a State is a party to the Statute of the Court, which is a treaty, can be a sometimes sensitive issue. Sometimes there are difficulties.

The problem arises for the Court when events occur that do not require prior action by the United Nations. There may be cases of State succession and it is not known whether there is continuity of the former State or whether there is succession. If it is not a new State, if it is not a State session, but a continuity, then, legally, the new State is considered to be the same as the old one and therefore it does not need to join. When Russia came on the international scene and the former USSR ceased to exist, it was considered that there was State continuity, Russia being the successor of the USSR, it is not a new State, there is legal identity between the two. So Russia was automatically a member of the United Nations, in other words, it remained a member of the Security Council, otherwise it would have had to apply for a new accession to the Charter and this could happen for the Statute.

In the case of Russia, this is very clear, because everyone has accepted continuity. In other cases, knowing whether a State is a successor or a continuator poses problems because there are very divergent views and the criteria in international law are not entirely clear. In other words, and to be correct, it is combined with a lot of politics and when it is combined with a lot of politics, the legal criteria are not clear. This is the case with Serbia. Whether Serbia was a continuator or not in relation to the former Federal and Socialist Republic of Yugoslavia is an issue that has divided the United Nations for years. The link between the two was a little weaker than Russia's with the USSR and the interests were not the same. There were not the atomic agreements that had to be passed from the USSR to Russia without interruption, there was no seat for the great power on the Security Council. For Serbia, it was difficult to know for years; the Court was confronted with this thorny issue in the case of the Bosnia genocide against Serbia, because it was not known whether Serbia could be a defendant before the Court. It did not meet the conditions to remain before the Court if it was not a party to the Statute, so it had to be a party to the Statute to be a defendant. But it was a party to the Statute only if it was a continuing State of the federal and socialist republic. It was not clear. That is the main hypothesis. It is not the status of a State, actually, but rather the status of a party to the Statute that may give rise to serious doubts.

It is a specificity that the procedure before the international courts requires the consent of the parties to the dispute for the court in question to have jurisdiction. It is not only the ICJ that is concerned, but all international tribunals. The reason is to be found in the sovereignty of States. The fact that the specific consent of litigants is required for a court to settle their disputes considerably changes the legal situation prevailing in international law compared to that found in domestic law. Under domestic law, the State has for some time prided itself on providing its litigants with available and effective remedies, and when it fails to do so, the State is slapped on the wrists, at least in Europe by the European Court of Human Rights. In international cases, and particularly in ICJ cases, no State is obliged to submit to its jurisdiction, except when it has given its consent.

There are very different ways of expressing this consent, that consent is a rich and subtle matter, sometimes this consent is quite implicit, but the Court, nevertheless, verifies it with a certain meticulousness. It is a question of its credibility, the Court knows very well that if it does broad and bold things that displease States, States will desert it, because in the end, when you can consent to go before a court, you can also not consent, and when the court does not like it, because its case law would be too adventurous, for example, the choice will be not to go there. Ultimately, if his competence has been recognised, we will take advantage of the free choice of means and the substitute to escape as quickly as possible from his asphyxiating wings. The Court is very aware of this and is therefore attentive to the element of consent, avoiding offending or adventurous jurisprudence.

How can this consent be expressed? There are two main modalities that are purely descriptive, but have a great legal impact. It is possible to express this consent either before a dispute arises or after a dispute has arisen. This is a distinction that is not in itself legal, but purely descriptive between "before" and "after", there is no legal difference in the sense that the result is the same, the Court has jurisdiction in both cases. But there is a significant political-psychological and also legal dispute between these two categories. When a State agrees to submit to the jurisdiction of the Court before a concrete dispute arises, a State does not know the dispute to which it may be a party in the future. There is a blindfolded, empty engagement without knowing what the state is going to be consumed on. It is therefore a very strong form of commitment for a State, especially since the extent of the commitment is for a series of disputes that are not only unpredictable, but also multiple. Disputes that may arise in the future.

Where, on the other hand, and by contrast, a State commits itself after a dispute has arisen, the State accepts the Court's jurisdiction only in respect of that specific dispute. The extent of acceptance or consent differs significantly in both cases.

In each of these categories, there are two ways to express consent. Two ways of expressing it before the dispute arises and two ways of expressing it about a concrete dispute that has already crystallized.

Before birth, a State accepts the jurisdiction of the Court either by agreements and treaties, general agreements or special compromises, and the State is then bound by the mechanisms provided for under Article 36§1. Article 36 concerns the consensual jurisdiction of the ICJ, it is the sedes materiae that we are currently dealing with.

There are very different ways of expressing this consent, that consent is a rich and subtle matter, sometimes this consent is quite implicit, but the Court, nevertheless, verifies it with a certain meticulousness. It is a question of its credibility, the Court knows very well that if it does broad and bold things that displease States, States will desert it, because in the end, when you can consent to go before a court, you can also not consent, and when the court does not like it, because its case law would be too adventurous, for example, the choice will be not to go there. Ultimately, if his competence has been recognised, we will take advantage of the free choice of means and the substitute to escape as quickly as possible from his asphyxiating wings. The Court is very aware of this and is therefore attentive to the element of consent, avoiding offending or adventurous jurisprudence.

How can this consent be expressed? There are two main modalities that are purely descriptive, but have a great legal impact. It is possible to express this consent either before a dispute arises or after a dispute has arisen. This is a distinction that is not in itself legal, but purely descriptive between "before" and "after", there is no legal difference in the sense that the result is the same, the Court has jurisdiction in both cases. But there is a significant political-psychological and also legal dispute between these two categories. When a State agrees to submit to the jurisdiction of the Court There are also, independently of the general or special agreements that can be concluded, arbitration clauses. These are treaty commitments, but they are included in treaties whose purpose is not the settlement of disputes. General or special agreements are agreements on the settlement of disputes in which it is provided that the Court will have jurisdiction over a particular aspect or dispute. An arbitration clause is a clause inserted in a treaty whose object is not the settlement of disputes, but any other object. This may be the protection of the environment, customs duties or otherwise, a clause is inserted inside for the settlement of disputes providing that if there will be differences in the interpretation or application of this Agreement, the Court will have jurisdiction by means of certain conditions which may be specified.

There are either dispute settlement agreements or arbitration clauses.

Article 36§2 refers to the optional clause. It is a system of unilateral declarations that States can undertake and that creates a network of competence between all States that have made such a declaration. We are talking about the compulsory jurisdiction of the Court, because we cannot say that there is jurisdiction without consent, we simply mean that when we have undertaken in this way, it is possible to be unilaterally cited before the Court on the basis of these titles of jurisdiction such as, for example, unilateral declarations of optional clauses.

If we look at the means of engaging after a dispute has arisen, it is the special compromise on a particular case, so it is an agreement that asks the Court to deal with a particular dispute that States specify in their agreement. For example, the Court will be asked to draw the border between Burkina Faso and Mali by specifying the sector in which the two States wish the Court to draw that border, or it will be the extended forum, which may have several meanings. The main meaning of the extended forum is either informal consent, i.e. a State consents to the jurisdiction of the Court, but outside all other traditional avenues as in a letter, or jurisdiction is achieved if a State does not oppose the applicant's allegation of jurisdiction. A plaintiff may bring an action before the Court, there is no evidence of jurisdiction, but the defendant does not object. Before a concrete dispute arises, a State does not know the dispute to which it may be a party in the future. There is a blindfolded, empty engagement without knowing what the state is going to be consumed on. It is therefore a very strong form of commitment for a State, especially since the extent of the commitment is for a series of disputes that are not only unpredictable, but also multiple. Disputes that may arise in the future.

Where, on the other hand, and by contrast, a State commits itself after a dispute has arisen, the State accepts the Court's jurisdiction only in respect of that specific dispute. The extent of acceptance or consent differs significantly in both cases.

In each of these categories, there are two ways to express consent. Two ways to express it before the dispute arises and two

Annexes[edit | edit source]

References[edit | edit source]