THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE: SOME THEORETICAL ISSUES

INTRODUCTION. The International Court of Justice is the only international judicial body established by the Charter of the United Nations as “the principal judicial organ of the United Nations”; and the obligations of States under the Charter of the United Nations shall prevail over obligations under any other international agreement (Art. 103 of the Charter of the United Nations); the execution of the decisions of the Court may be ensured by the UN Security Council (Art. 94 of the Charter of the United Nations). All UN member States, including the Russian Federation, are parties to the Statute of the International Court of Justice, and its Statute forms an integral part of the UN Charter (Art. 92). The present article explores in detail the theoretical and practical issues related to the establishment of the jurisdiction of the International Court of Justice. It contains the analysis of the features, advantages and disadvantages of the methods of establishing the jurisdiction of the Court in the context of the current practice of the Court and the legal positions of States. MATERIALS AND METHODS. The article is based on the analysis, first of all, of the documents of the Court related to the establishment of its jurisdiction in international disputes referred to it. This study also examines the practice of States in the field of recognition of the Court's jurisdiction under the Statute, as well as related scientific works of Russian and foreign scholars in the field of international law. The methods used in the course of this study include general and specific (existing in the legal science) scientific cognition methods, including the methods of formal logic, legal history and comparative legal research. RESEARCH RESULTS. The article shows that it is not legally correct to give identical meaning to the terms “competence of the Court” and “jurisdiction of the Court” used in the Statute of the International Court of Justice, although some authoritative foreign jurists do so. Within the meaning of the UN Charter, the term “competence of the Court” is broader in its meaning than the term “jurisdiction of the Court”: the latter is used only in connection with disputes of States that are resolved by the International Court of Justice, i.e. with the establishment of the jurisdiction over the dispute referred to the Court. The article classifies the ways in which States express their consent to the jurisdiction of the Court under its Statute into three main categories: (1) referral of a case to the Court by means of a special agreement concluded between the contesting States; (2) jurisdiction of the Court over disputes submitted to it on the basis of international agreements; (3) recognition by the State of the jurisdiction of the Court by means of a unilateral declaration. The article indicates the features of different ways of expressing the consent of States to the jurisdiction of the Court in the context of the practice of States and of the Court. DISCUSSION AND CONCLUSIONS. By means of illustration the authors refer to inter-state disputes, where jurisdictional issues were raised at the Court. The analysis of the use of special agreement (or “compromis”) shows that this method of consent to the jurisdiction of the Court is typical for the consideration of an already formed dispute, the existence of which the relevant States do not contest, and its transfer to the Court is expected by the respondent State. The article also reveals the legal disadvantages inherent in this method. The article reveals legally advantageous as well as problematic aspects related to disputes referred to the Court on the basis of jurisdictional clauses of treaties. Attention is devoted to the analysis of unilateral declarations of States recognizing the jurisdiction of the Court, which may be conditional. It is the practice of States to formulate legally sophisticated conditions that has objectively complicated the whole “Optional Clause” system provided for by the UN Charter. In particular, the article indicates the difficulties of interpretation and application of temporal conditions; difficulties of legal assessment of the content of some conditions made by States in their declarations recognizing the jurisdiction of the Court; cases when excessively broad conditions nullify the recognition of the jurisdiction of the Court. The authors conclude that each of the named methods of expressing States’ consent to the jurisdiction of the International Court of Justice has its own characteristics, advantages and disadvantages. The system of the Court’s jurisdiction established by the UN Charter shows its efficiency only when all legal possibilities provided for in Art. 36 of the Statute are taken into account, and when international legal norms provided in the UN Charter, especially the core principles of international law, are strictly complied with. Selective, fragmentary interpretation of the legal norms applicable to the establishment of the jurisdiction of the Court is not permitted. Each of the methods of recognizing its jurisdiction performs its function only in the general context of the rights and obligations of States under the UN Charter; every method is effective in concrete circumstances and acceptable to disputing States in accordance with their sovereign will. 

1. Akande D. Selection of the International Court of Justice as a Forum for Contentious and Advisory Proceedings (Including Jurisdiction). – Journal of International Dispute Settlement. 2016. Vol. 7. Issue 2. P. 320–344. DOI: 10.1093/jnlids/idw011

2. Alexandrov S. Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases. – Leiden Journal of International Law. 2001. Vol. 14. Issue 1. P. 89–124. DOI: 10.1017/S092215650100005X

3. Alexandrov S. Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice. Dordrecht: Martinus Nijhoff. 1995. 164 p.

4. Collier J., Lowe V. The Settlement of Disputes in International Law. Institutions and Procedures. Oxford: Oxford University Press. 2000. 395 c.

5. Crawford J. Brownlie's Principles of Public International Law. 8th ed. Oxford: Oxford University Press. 2012. 888 p.

6. Devaney J.J. Fact-Finding before the International Court of Justice. Cambridge: Cambridge University Press. 2016. 306 p. DOI: 10.1017/CBO9781316498972

7. Goldstone R.J., Hamilton R.J. Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Tribunal for the Former Yugoslavia. – Leiden Journal of International Law. 2008. Vol. 21. Issue 1. P. 95–112. DOI: https://doi.org/10.1017/S0922156507004748

8. Higgins R. Problems and Process: International Law and How We Use It. Oxford: Oxford University Press. 1995. 304 p.

9. Kozhevnikov F.I., Sharmanazashvili G.V. Mezhdunarodnyi Sud OON: organizatsiya, tseli, praktika [The International Court of Justice: structure, objectives, practice]. Moscow: Mezhdunarodnye otnosheniya Publ. 1971. 160 p. (In Russ.)

10. Krylov S.B. Mezhdunarodnyi Sud Organizatsii Ob"edinennykh Natsii [The International Court of Justice]. Moscow: Gosyurizdat Publ. 1958. 167 p. (In Russ.)

11. Lee L.T., Quigley J. Consular Law and Practice. 3rd ed. Oxford: Oxford University Press. 2008. 684 p.

12. Mackenzie R. [et al.]. The Manual on International Courts and Tribunals. 2nd ed. New York: Oxford University Press. 2010. 500 p.

13. Morgan-Foster D. 2015. V poiskakh vykhoda iz labirinta: slozhnyi put' k yurisdiktsii v dele “Khorvatiya protiv Serbii”. Reshenie Mezhdunarodnogo suda OON ot 3 Fevralya 2015 goda [Searching for the other Side of the Labyrinth: the complex path to jurisdiction in the Croatia v. Serbia case. Judgment of the International Court of Justice of February 3, 2015]. – Mezhdunarodnoe pravosudie. 2015. No. 3 (15). P. 3–18. (In Russ.)

14. Pineda A.C.R. Recourse to International Dispute Settlement Mechanisms, Including Recent International Court of Justice Decisions. – ILSA Journal of International & Comparative Law. 2015. Vol. 21. Issue 2. P. 385–394.

15. Polyanskii N.N. Mezhdunarodnyi Sud [The International Court of Justice]. Moscow: Izd. Akademii Nauk SSSR Publ. 1951. 235 p. (In Russ.)

16. Rosenne S. The Law and Practice of the International Court: 1920–1996. Vol. II. Dordrecht: Martinus Nijhoff. 1997. 1960 p.

17. Shaw M. International Law. 8th ed. Cambridge: Cambridge University Press. 2017. 1033 p.

18. Simma B. Human Rights before the International Court of Justice: Community Interest Coming to Life? – The Development of International Law by the International Court of Justice. Ed. by C. Tams, J. Sloan. Oxford: Oxford University Press. 2013. P. 301–326. DOI: 10.1093/acprof: oso/9780199653218.003.0013

19. The Statute of the International Court of Justice: A Commentary. 2nd ed. Ed. by A. Zimmermann [et al.]. Oxford: Oxford University Press. 2012. 1745 p.

20. Thirlway H. The International Court of Justice. New York: Oxford University Press. 2016. 224 p.

21. Törber G. The Contractual Nature of the Optional Clause. Oxford: Hart Publishing. 2015. 410 p.

22. Timokhin K.V. Rassmotrenie sporov otnositel'no ostrovnykh territorii Mezhdunarodnym Sudom OON [Settlement of Disputes concerning Insular Territories in the Framework of the International Court of Justice]. – Moscow Journal of International Law. 2007. No. 2 (66). P. 199–215. (In Russ.)

23. Vylegzhanin A.N. Resheniya Mezhdunarodnogo Suda OON po sporam o razgranichenii morskikh prostranstv [The Decisions of the International Court of Justice regarding Disputes concerning the Delimitation of Maritime Spaces]. Moscow: Izdatel'stvo “Yuridicheskaya literatura” Publ. 2004. 222 p. (In Russ.)

24. Vylegzhanin A.N., Alferyeva K.E. Vklad Mezhdunarodnogo Suda OON v razvitie mezhdunarodnogo ekonomicheskogo prava [Contribution of the International Court of Justice to the Development of International Economic Law]. – Moscow Journal of International Law. 2016. No. 3 (103). P. 31–48. (In Russ.)

25. Vylegzhanin A.N., Churilina N.A. Mezhdunarodnopravovye osnovaniya yurisdiktsionnogo immuniteta gosudarstv [The Entitlement of a State to Jurisdictional Immunity under International Law]. – Moscow Journal of International Law. 2015. No. 2 (98). P. 35–51. (In Russ.)

26. Waldock H. Decline of the Optional Clause. – British Yearbook of International Law. Vol. 32. 1956. P. 244–287.