Only States may be parties to cases before the Court
It is the function of the ICJ to decide in accordance with international law disputes of a legal nature that are submitted to it by States. In doing so it is helping to achieve one of the primary aims of the United Nations, which, according to the Charter, is to bring about the settlement of disputes by peaceful means and in conformity with the principles of justice and international law.
An international legal dispute is, as the PCIJ put it, "A disagreement on a question of law or fact, a conflict, a clash of legal views or of interests." Such a dispute between opposing parties may eventually lead to contentious proceedings before an international tribunal. It is conceivable that such proceedings could be between a State on the one hand and an international organization, a collectivity or an individual on the other. Within their respective fields of jurisdiction, institutions such as the Court of Justice of the European Communities in Luxembourg or the European Court of Human Rights in Strasbourg would be entitled to hear such disputes. This is not the case, however, with the ICJ, to which no case can be submitted unless both applicant and respondent are States. Despite various proposals and even the existence of a treaty providing for the possibility of proceedings before the Court between an international agency and a State, neither the United Nations nor any of its specialized agencies can be a party in contentious proceedings before the ICJ. As for private interests, these can only form the subject of proceedings in the International Court of Justice if a State, relying on international law, takes up the case of one of its nationals and invokes against another State the wrongs which its national claims to have suffered at the latter's hands, the dispute thus becoming one between States (e.g., Ambatielos, Anglo-Iranian Oil Co., Nottebohm, Interhandel, Barcelona Traction, Light and Power Company, Limited, Elettronica Sicula S.p.A. (ELSI)). Like any other court, the ICJ can only operate within the constitutional limits that have been laid down for it. Hardly a day passes without the Registry receiving written or oral applications from private persons. However heart-rending, however well founded such applications may be, the ICJ is unable to entertain them and a standard reply is always sent: "Under Article 34 of the Statute, only States may be parties in cases before the Court."
Today, the Court is open to practically every State in the world:
States Members of the United Nations, which, by signing the Charter, accepted its obligations and thus at the same time became parties to the Statute of the ICJ, which forms an integral part of the Charter; those States (Nauru and Switzerland) which have become parties to the Statute of the ICJ without signing the Charter or becoming members of the United Nations; these States have had to satisfy certain conditions laid down by the General Assembly upon the recommendation of the Security Council: acceptance of the provisions of the Statute, an undertaking to comply with the decisions of the ICJ and an undertaking to make an annual contribution to the expenses of the Court; any other State which, whilst neither a member of the United Nations nor a party to the Statute of the ICJ, has deposited with the Registry of the ICJ a declaration that meets the requirements laid down by the Security Council whereby it accepts the jurisdiction of the Court and undertakes to comply in good faith with the Court's decisions in respect of all or a particular class or classes of disputes. Many States have found themselves in this situation before becoming members of the United Nations; having concluded treaties providing for the jurisdiction of the Court, they deposited with the Registry the necessary declaration to be able to appear before the Court. Where they have been parties to a case, they have been required to contribute to the costs thereof.
The jurisdiction of the Court so far as concerns the parties entitled to appear before it - jurisdiction ratione personae - covers those States listed above. In other words, in order that a dispute may validly be submitted to the Court it is necessary that the dispute should be between two or more such States.
A case can only be submitted to the Court with the consent of the States concerned
Jurisdiction ratione personae is not, however, in itself enough. A fundamental principle governing the settlement of international disputes is that the jurisdiction of an international tribunal depends in the last resort on the consent of the States concerned. Accordingly, no sovereign State can be made a party in proceedings before the Court unless it has in some manner or other consented thereto. It must have agreed that the dispute or the class of disputes in question should be dealt with by the Court. It is this agreement that determines the jurisdiction of the Court so far as the particular dispute is concerned - the Court's jurisdiction ratione materiae. It is true that Article 36 of the Charter provides that the Security Council, which may at any stage of a dispute recommend appropriate procedures or methods of adjustment, is to "take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice". In the Corfu Channel case, however, the ICJ did not consider a recommendation by the Security Council to this effect sufficient to confer jurisdiction on the Court independently of the wishes of the parties to the dispute.
The way in which States manifest consent to their disputes of a legal nature being decided by the ICJ is defined in Article 36 of the Statute. Paragraph 1 thereof provides: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force."
The first possibility envisaged here is where the parties bilaterally agree to submit an already existing dispute to the ICJ and thus to recognize its jurisdiction over that particular case. Such a special agreement conferring jurisdiction on the Court is often referred to as a compromis (its name in French). Once such a special agreement has been lodged with the Court, the latter can entertain the case. Eleven disputes were referred to the PCIJ and 13 cases have been brought before the ICJ in this way (Asylum, Minquiers and Ecrehos, Sovereignty over Certain Frontier Land, North Sea Continental Shelf (two cases), Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Delimitation of the Maritime Boundary in the Gulf of Maine Area (case referred to a chamber), Continental Shelf (Libyan Arab Jamahiriya/Malta), Frontier Dispute (Burkina Faso/Republic of Mali) (case referred to a chamber), Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (case referred to a chamber), Territorial Dispute (Libyan Arab Jamahiriya/Chad), Gabcíkovo-Nagymaros Project (Hungary/Slovakia) Kasikili/Sedudu Island (Botswana/Namibia)) (see table on following page).
It can also happen that a dispute is brought before the Court while at the time of the institution of the proceedings only one of the disputing States has validly recognized its jurisdiction over the case in question and the other has not, and that this latter State recognizes the Court's jurisdiction subsequently; this is a fairly rare situation and is known as forum prorogatum (*Mavrommatis Jerusalem Concessions, *Rights of Minorities in Upper Silesia, Corfu Channel). It has also happened ten times that a State has instituted proceedings in the ICJ whilst recognizing that the opposing party has not recognized the Court's jurisdiction and inviting it to do so: hitherto, this has always met with a negative response.
Treaties and conventions
The second possibility envisaged in Article 36, paragraph 1, of the Statute is where treaties or conventions in force confer jurisdiction on the Court. It has become a general international practice to include in international agreements - both bilateral and multilateral - provisions, known as jurisdictional clauses, providing that disputes of a given class shall or may be submitted to one or more methods for the pacific settlement of disputes. Numerous clauses of this kind have provided and still provide for recourse to conciliation, mediation or arbitration; others provide for recourse to the Court, either immediately or after the failure of other means of pacific settlement. Accordingly, the States signatory to such agreements may, if a dispute of the kind envisaged in the jurisdictional clause of the treaty arises between them, either institute proceedings against the other party or parties by filing a unilateral application, or conclude a special agreement with such party or parties providing for the issue to be referred to the ICJ. The wording of such jurisdictional clauses varies from one treaty to another. Model jurisdictional clauses have been prepared by, inter alia, the Institute of International Law (1956). Jurisdictional clauses are to be found in treaties or conventions having as their object the pacific settlement of disputes between two or more States and providing in particular for the submission to judicial decision of specified classes of conflicts between States subject sometimes to certain exceptions; having an object other than the pacific settlement of disputes, in which case the jurisdictional clause of the treaty or convention in question will refer solely to disputes concerning the interpretation or application of the treaty or convention or only some of its provisions (e.g., disputes where the issue relates to a peremptory rule of international law - jus cogens). Such clauses may be included in the body of the text or in a protocol annexed to the treaty. They may likewise be compulsory or optional and may be open to reservations or not.
Now such jurisdictional clauses confer jurisdiction on the ICJ. Those that were drawn up before the creation of the United Nations conferred it on the PCIJ. In order to prevent these from losing their effectiveness, the present Statute provides that the ICJ is to be substituted for the PCIJ. Provided that the agreement to which they relate is still in force and that the States concerned are parties to the Statute of the ICJ, any dispute that arises can be submitted to the ICJ in the same way as it could have been to the PCIJ. The few hundred treaties or conventions that confer jurisdiction on the Court in this way will normally have been registered with the Secretariat of the League or the United Nations and will appear in the collections of treaties published by those two Organizations. In addition, the PCIJ and the ICJ have published lists of and extracts from such treaties and conventions. It is not always easy to determine which of them are still in force. They probably number some 400 or so, some being bilateral, involving about 60 States, and others multilateral, involving a greater number of States.
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