Probleem 7
Bronnen:
- Hendriksen – International Law – Chapter 12 & 13
- Nicaragua case
- Armed activities case
1. When does the ICJ have jurisdiction?
Access (art. 35 ICJ Statute) = who may bring or be brought before the Court
Parties that are member of the UN have access to the ICJ (art 34 ICJ Statute). Moreover, because of art. 93(2) ICJ Statute,
parties that are not part of the UN can also gain access to the ICJ. There are two ways for other states to gain access (art
35(2) ICJ Statute):
1) The Security Council will provide access
2) By special provisions contained in treaties in force before October 1945
Jurisdiction = the competence of the Court to handle a dispute
For the ICJ to have jurisdiction, the parties must give their consent. This consent can be given in a particular case, or in a
category of disputes that the existing case is part. Consent can be expressed in different ways (art. 36 ICJ Statute):
- Compromise = parties agree to submit a case to the court
- Becoming a party of a dispute treaty in which future disputes are submitted to the ICJ
- Optional clause = declaring the Court’s jurisdiction for international disputes when the other state accepts the
same obligation (art. 36(2) ICJ Statute).
- Forum prorogatum = a state does not explicitly accept the jurisdiction it can be supposed to do so when they
show up to court and it looks like they accept the jurisdiction of the court. This can only be done when it can be
proven that the state showed a direct indication of accepting the Court’s jurisdiction in a voluntary and
indisputable manner (Armed activities case).
If there is a third party in the case, and this party is the central to the case, it has to give its consent too. Also, a state that
has legal interest in a case can intervene based on art. 62 ICJ Statue, the parties of the case do not have to give their
consent about this.
In the Armed Activities case the court ruled that the erga omnes norms and the rule of consent to jurisdiction are
two different things. The mere fact that rights and obligations erga omnes may be at issue in a dispute would not
give the court jurisdiction to entertain tat dispute.
The power of the ICJ to indicate provisional measures
The Court can take provisional measures to preserve the respective rights of the parties pending the decision of the Court
(art. 41 ICJ Statute). An order for provisional measures is binding on the parties. Taking measures has a few conditions:
1) The court must have jurisdiction over the essence of the case
2) The rights claimed by the requesting party must be acceptable. There must be a link between the rights which
form the case and the provisional measures sought.
3) Urgent need for action.
The effects of the Court’s decision
The Court’s decision is final and without appeal and is binding on the parties to the dispute (art. 60 ICJ Statute). The
meaning and scope of the judgement can be settled by request of a party. An unknown fact which could have been a
decisive factor can cause a review of the judgement (art. 61 ICJ Statute). If a party who is member of the UN does not
comply to the judgement, the UN Security Council can take measures (art. 94 UN Charter).
The Security Council and the court can both handle a dispute. The Court can handle a case which the Security Council is
also working on. The Council has political functions, and the Court only exercises judicial functions.
Advisory opinions
The court may give advice to authorized parties. Those parties are mentioned in art. 65(1) ICJ Statute:
- The General Assembly and the Security Council.
- Organs and specialized agencies authorized by the General Assembly.
The opinions are not binding but help organs to settle an issue itself. The motive for requesting an advisory opinion is not
relevant. The only relevant thing is that it must be a legal question concerning terms of law and problems of international
law.
Bronnen:
- Hendriksen – International Law – Chapter 12 & 13
- Nicaragua case
- Armed activities case
1. When does the ICJ have jurisdiction?
Access (art. 35 ICJ Statute) = who may bring or be brought before the Court
Parties that are member of the UN have access to the ICJ (art 34 ICJ Statute). Moreover, because of art. 93(2) ICJ Statute,
parties that are not part of the UN can also gain access to the ICJ. There are two ways for other states to gain access (art
35(2) ICJ Statute):
1) The Security Council will provide access
2) By special provisions contained in treaties in force before October 1945
Jurisdiction = the competence of the Court to handle a dispute
For the ICJ to have jurisdiction, the parties must give their consent. This consent can be given in a particular case, or in a
category of disputes that the existing case is part. Consent can be expressed in different ways (art. 36 ICJ Statute):
- Compromise = parties agree to submit a case to the court
- Becoming a party of a dispute treaty in which future disputes are submitted to the ICJ
- Optional clause = declaring the Court’s jurisdiction for international disputes when the other state accepts the
same obligation (art. 36(2) ICJ Statute).
- Forum prorogatum = a state does not explicitly accept the jurisdiction it can be supposed to do so when they
show up to court and it looks like they accept the jurisdiction of the court. This can only be done when it can be
proven that the state showed a direct indication of accepting the Court’s jurisdiction in a voluntary and
indisputable manner (Armed activities case).
If there is a third party in the case, and this party is the central to the case, it has to give its consent too. Also, a state that
has legal interest in a case can intervene based on art. 62 ICJ Statue, the parties of the case do not have to give their
consent about this.
In the Armed Activities case the court ruled that the erga omnes norms and the rule of consent to jurisdiction are
two different things. The mere fact that rights and obligations erga omnes may be at issue in a dispute would not
give the court jurisdiction to entertain tat dispute.
The power of the ICJ to indicate provisional measures
The Court can take provisional measures to preserve the respective rights of the parties pending the decision of the Court
(art. 41 ICJ Statute). An order for provisional measures is binding on the parties. Taking measures has a few conditions:
1) The court must have jurisdiction over the essence of the case
2) The rights claimed by the requesting party must be acceptable. There must be a link between the rights which
form the case and the provisional measures sought.
3) Urgent need for action.
The effects of the Court’s decision
The Court’s decision is final and without appeal and is binding on the parties to the dispute (art. 60 ICJ Statute). The
meaning and scope of the judgement can be settled by request of a party. An unknown fact which could have been a
decisive factor can cause a review of the judgement (art. 61 ICJ Statute). If a party who is member of the UN does not
comply to the judgement, the UN Security Council can take measures (art. 94 UN Charter).
The Security Council and the court can both handle a dispute. The Court can handle a case which the Security Council is
also working on. The Council has political functions, and the Court only exercises judicial functions.
Advisory opinions
The court may give advice to authorized parties. Those parties are mentioned in art. 65(1) ICJ Statute:
- The General Assembly and the Security Council.
- Organs and specialized agencies authorized by the General Assembly.
The opinions are not binding but help organs to settle an issue itself. The motive for requesting an advisory opinion is not
relevant. The only relevant thing is that it must be a legal question concerning terms of law and problems of international
law.
