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QUESTION| What are the parameters of contentious jurisdiction exercisable by the International Court of Justice ?
Importance of this question : Important Law Optional mains question
QUESTION POSTED ON | 31.10.2021
MODEL ANSWER WILL BE POSTED ON |01.11.2021
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ANSWER | Only States can be parties to contentious cases. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:
1. by entering into a special agreement to submit the dispute to the Court.
2. by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court.
3. through the reciprocal effect of declarations made by them under the Statute, whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.
Proceedings may be instituted in one of two ways:
• Through the notification of a special agreement: A special agreement must indicate the subject of the dispute and the parties thereto. Ex: Benin/Niger.
• By means of an application: the application, which is unilateral in character, is submitted by an applicant State against a respondent State. It is intended for communication to the latter State. In addition to the name of the party against which the claim is brought and the subject of the dispute, facts and grounds of claim, the applicant State must, as far as possible, indicate briefly on what basis it claims that the Court has jurisdiction. Ex: Nicaragua v. Colombia.
The date of the institution of proceedings, which is that of the receipt by the Registrar of the special agreement or application, marks the opening of proceedings before the Court. Contentious proceedings include a written phase, in which the parties file and exchange pleadings containing a detailed statement of the points of fact and of law on which each party relies, and an oral phase consisting of public hearings at which agents and counsel address the Court. As the Court has two official languages (English and French), everything written or said in one language is translated into the other.
After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public sitting. The judgment is final, binding on the parties to a case and without appeal (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision). Any judge wishing to do so may append an opinion to the judgment.
The procedure described above is the normal procedure. However, the course of the proceedings may be modified by incidental proceedings. The most common incidental proceedings are preliminary objections, which are raised to challenge the competence of the Court to decide on the merits of the case (the respondent State may contend, for example, that the Court lacks jurisdiction or that the application is inadmissible). The matter is one for the Court itself to decide. Then there are provisional measures, interim measures which can be requested by the applicant State if it considers that the rights that form the subject of its application are in immediate danger. A third possibility is that a State may request permission to intervene in a dispute involving other States if it considers that it has an interest of a legal nature in the case, which might be affected by the decision made. The Statute also makes provision for instances when a respondent State fails to appear before the Court, either because it totally rejects the Court’s jurisdiction or for any other reason. Failure by one party to appear does not prevent the proceedings from taking their course, although the Court must first satisfy itself that it has jurisdiction. Finally, should the Court find that parties to separate proceedings are submitting the same arguments and submissions against a common opponent in relation to the same issue, it may order the proceedings to be joined.