APLIKOVAN

PRVO 1/2008

TOM MACH

A Legal Dispute
Between States: On
the Conditions of the
ICJs Jurisdiction in
Contentious Cases

In the following lines, the writer shall focus on key attributes to be fullled
by cases to be admissible before the International Court of Justice (hereinafter ICJ),
namely parties and the existence of a legal dispute. In over 60 years of its existence
(representing also continuance of the PCIJ) the court has ruled on these issues in
(relatively) numerous cases and has developed certain principles in this regard that
can be generalized. The objective of this article is to focus on key rulings from this
area and provide the reader with a constant overview of resulting doctrines thereto
related in regard to the ICJs jurisdiction in contentious cases. This article shall
specically deal with two areas, namely the matters of jurisdiction in regard to relevant parties and their necessary participation and secondly with the matters of an
existence of a legal dispute to be resolved.
Prior to focusing on these two areas, however, a brief introduction to the
specication of a party to a contentious dispute before the ICJ pursuant to its Status will be sketched out; in this context the writer comments on the denition of
the a party and argues for the potential necessity of modication thereof de lege
ferenda.

1.

Parties

In regard to parties the statute is rather rigid, leaving not much space for
ICJs creativity.1) Article 34 of the Statute provides that in contentious cases the
court is open merely to states. Pursuant to Article 35(1) of the Statute, the court
is open to all parties of the Statute (at least all UN members). In case a particular
treaty provides for dispute settlement via the ICJ, also UN non-members are able
to make use of this court. In such a case it is upon the Security Council to lay down
conditions for the states access [Art 35(2)]. Subsequently it is upon the court to x

1)

For which also this part of the paper will be rather brief.

APLIKOVAN PRVO 1/2008

VAP_32.indd 69

69

24.6.2008 13:38:49

the amount which a non-members party is to contribute towards the expenses of

the court [Art 35(2)].
It is naturally a matter of opinion whether the above indicated concept of
parties limited merely to sovereign states corresponds to the needs of contemporary international law some sixty years since the adoption of the Statute. Although
the limitation to states as only original subjects of law at that time seems natural, at the time of adoption of the current Statute the role of international organizations was nonetheless slowly rising (as the drafting powers themselves were
involved in the creation of international institutions, such as the Bretton Woods
system for instances). One can thus question, whether the explicit limitation to
states (rather than any vaguer or more exible denition of a party which would
allow for further development of the understanding of this term) was intentionally
directed at limiting the access of international organizations to the court in case
of contentious cases.2) Moreover, cynics could argue (subject to necessary historical
research of travaux prparatoires which is not in scope of this paper) that this limitation could have purposed to restrict the court from eventually nding, that some
non-sovereign (or non-subject) entities under international law have got standing
against sovereign states. In this regard particularly protectorates (some of them,
depending on the conditions of particular treaties) or trust territories come at ones
mind.
As regard to international organizations and their lack of standing, it must
be concluded that this circumstance contributes to further fragmentation of international law. An example where the Statute of the ICJ could have not been made
use of and consequently another particular tribunal was created is the dispute settlement mechanism pursuant to the UN Convention on the Law of the Sea (1982).
In this case, leaving aside the fact that some of the drafting parties were not keen
on extending jurisdiction of the ICJ3) and preferred, inter alia, the creation of the

As opposed to the advisory opinions pursuant to Art 65 ff of the Statute in conjunction with
the Charter of the UN (Art 96). Pursuant to the latter, the General Assembly, the Security Council,
as well as any UN authorized agency can ask the court to deliver an advisory opinion. In respect
of the specialized agencies, these are generally international inter-governmental organizations
with own legal personality such as the WHO. At current, international law has not developed
towards acceptance of NGOs (formed pursuant to particular municipal laws) as possible agencies
of the UN, despite the flexibility of the provisions of the above cited treaties which would possibly enable that to take place. Even the International Committee of the Red Cross, a body that is
under customary international law recognized as de facto subject of international law despite
of its NGO nature, was facing some doubts whether it could acquire even at least the (general)
observer status. On details see Koenig, C: Observer Status for the ICRC at the United Nations:
a legal viewpoint. In: (1991) 280 International Review of the Red Cross 31. See also: the Explanatory Memorandum of the UN general Assembly: <http://www.icrc.org/web/eng/siteeng0.nsf/
html/57JNWH> at 15 December 2007.

2)

For reasons that are to be examined rather by political scientists then international lawyers; the
complexity of article 188 of the UN Convention on the Law of the Sea, including the various options of dispute settlement (from ITLOS to commercial arbitration) however indicates the general
disagreement on one binding dispute settlement system; this disagreement seems to be beyond
the refusal of some powers in early 1980s to extend the jurisdiction of the ICJ. On theoretical
plane, however, this particular climate of international relations change nothing on the framework
lack of readiness to be usable for such purposes.

3)

70

VAP_32.indd 70

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

ITLOS as a new permanent tribunal, the mere fact of inter-governmental organizations not having standing before the ICJ pursuant to its Statute factually excluded
the possibilities that disputes between for instance the International Seabed Authority4) and signatory parties to the UN ICLOS 1982 (provided that theoretically
at that time there would have been the political will of the signatory parties of the
UN ICLOS to use this mechanism). The ultimate result is that an international
treaty in preparation of which the UN played an inseparable role provides, inter
alia, for a permanent court other then the ICJ.5) Although it may be questionable
to what extend it can be expected that similar substantial codications of international law are expectable in the near future, de lege ferenda the exclusion of
international organizations indeed depreciates the utility of the ICJ and inveigle
to fragmentation. Therefore, should it perhaps in the close future (unlikely) come
to an amendment of the Statute, the matter of the denition of a party deserves
serious reconsideration.

2.

The notion of a dispute

Naturally, the key pre-qualication for the existence of a contentious proceeding is that there exists a dispute between two parties6) (having standing as
discussed above). That is, that it must be shown that the claim of one party is
positively opposed by the other.7) For the ICJ to nd that it has jurisdiction, it cannot be just any disagreement or any dispute, but a legal one. In other words, there
must be a legal question involved to be decided by the court. The PCIJ summarized
the legal dispute in Mavrommatis as follows: [] a dispute is a disagreement on
a point of law or fact, a conict of legal views or interests between two persons.9)

Pursuant to Art 156 of the UN Convention on the Law of the Sea (of 10 December 1982);
<http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.
htm> at 15 December 2007.

4)

Whereby in times when the ICJ was far from being overloaded by work, not to mention that the
job of a judge on ITLOS does not seem to be a very busy one either.

5)

Subject to objective determination; see Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion, [1950] ICJ Rep 74.

6)

7)

South West Africa (Preliminary Objections) Judgment, [1962] ICJ Rep 328.

Mavrommatis Palestine Concessions [1924] PCIJ Ser. A No.2 <http://www.icj-cij.org/pcij/index.php?p1=9&p2=1&p3=0&co=A02> 15 December 2007.

8)

In Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda); <http://www.icj-cij.org/docket/files/126/10435.pdf> 30 December 2007 the court summarized in this context as follows (on page 34): For its part, the
present Court has had occasion a number of times to state the following: In order to establish
the existence of a dispute, it must be shown that the claim of one party is positively opposed by
the other (South West Africa, Preliminary Objections, Judgment, I.C.J. Rep 1962, p. 328); and
further, Whether there exists an international dispute is a matter for objective determination (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Rep 1950, p. 74). (East Timor (Portugal v. Australia), Judgment, I.C.J. Rep 1995, p. 100,
Para 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary

9)

APLIKOVAN PRVO 1/2008

VAP_32.indd 71

71

24.6.2008 13:38:49

The argument of an absence of a legal dispute between parties has been

on several occasions used by the respondent state as a reason for which such respondent submitted the ICJ should bounce the case for a lack of jurisdiction. The
argument mostly was that there is a rather political than a legal dispute and that
the ICJ is not and should not be the tool for settlement of rather political disputes.
It can be concluded (as shall be illustrated below), however, that the ICJ seems to
quite heavily refuse such arguments, noting always that the mere fact that there is
some diplomatic or political basis for a dispute (as it always is) does not mean that
there is no legal question involved, whereby it is upon the court to deal with the legal question. The courts ndings in the following cases represent its contemporary
doctrinal approach to this matter:
In Teheran Hostages10) the court refused the following arguments of the
Islamic Republic of Iran: The Government of the Islamic Republic of Iran considers that the Court cannot and should not take cognizance of the case which the
Government of the United States of America has submitted to []
For this question only represents a marginal and secondary aspect of an
overall problem, one such that it cannot be studied separately, and which involves,
inter alia, more than 25 years of continual interference by the United States in the
internal affairs of Iran, the shameless exploitation of Our country, and numerous
crimes perpetrated against the Iranian people, contrary to and in conict with all
international and humanitarian norms.
The problem involved in the conict between Iran and the United States is
thus not one of the interpretation and the application of the treaties upon which
the American Application is based, but results from an overall situation containing
much more fundamental and more complex elements.
Consequently, the Court cannot examine the American Application divorced
from its proper context, namely the whole political dossier of the relations between
Iran and the United States over the last 25 years.
With regard to the request for provisional measures, as formulated by the
United States, it in fact implies that the Court should have passed judgment on
the actual substance of the case submitted to it, which the court cannot do without breach of the norms governing its jurisdiction. Furthermore, since provisional
measures by denition intended to protect the interest of the parties, they cannot be unilateral, as they are in the request submitted by the American Government.11)
The legal background relevant to the question of the courts jurisdiction was
treaty-law (namely Vienna Convention on Diplomatic Relations (1961) and the USAIran 1955 Treaty of Amity, Economic Relations, and Consular Rights). There thereObjections, Judgment, I.C.J. Rep 1998, p. 17, Para 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Rep 1998, pp.
122-123, Para 21; Certain Property (Lichtenstein v. Germany), Preliminary Objections, Judgment,
I.C.J. Rep 2005, p. 18, Para 24.).
10) Teheran Hostages: Case Concerning United States Diplomatic and Consular Staff in Teheran
(United States of America v. Iran). Decision of 24 May 1980, [1980] ICJ Rep 3.
11)

Teheran Hostages, supra, on page 9

72

VAP_32.indd 72

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

fore existed a clear contractual basis for the courts jurisdiction in conformity with
Art 35(2) of the courts Statute. Iran sought, however, to avoid this by claiming that:
The problem involved in the conict between Iran and the United States is
thus not one of the interpretation and the application of the treaties upon which
the American Application is based, but results from an overall situation containing
much more fundamental and more complex element the court cannot examine
the American Application divorced from its proper context []25 years.12)
Iran also refused to take part in the proceedings.13) As a result of this approach the Art 53 of the Statute came into operation and the court went ahead with
the proceedings, having to establish (pursuant to Art 53(2) of the Statute) that the
claim is well founded both in law and in facts. As to the matter of facts and depth the
court needs to go to the ICJ referred to its previous ruling in Corfu Channel.14) The
matters of law were subsequently elaborated by the court throughout the case. The
importance in this case rests however, with the courts implied, yet strict, refusal of
Irans approach claiming that the matter in dispute is not about a particular set of
actions (inter alia the situation concerning the Hostages in the Teheran Embassy),
as opposed to the claimed opinion that in fact, the dispute is rather about the whole
political dossier of the relations between Iran and the United States over the last 25
years. The court clearly refused Irans attempt to initiate a doctrine of diminishing
its jurisdiction in case of strong rather political involvement and clearly analyzed
legal problems (i.e. legal dispute) it was asked to rule on.
In the Arrest Warrant15) the matter of existence of a legal dispute was also
addressed:
Here the Democratic Republic of the Congo contended that the Kingdom of
Belgium had violated:
[] principle that a State may not exercise its authority on the territory
of another State, the principle of sovereign equality among all Members of the
United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United
Nations, as well as the diplomatic immunity of the Minister for Foreign Affairs of
a sovereign State, as recognized by the jurisprudence of the Court and following
from Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations.16)
12)

Ibid.

Here it is not entirely clear whether it was a result of lack of reasonable human resources to
advise it on the position and particularly on the impact of Art 53 of the Statute of the ICJ (subsequent to the revolution) or whether it hoped for analogy with the PCIJ ruling in the advisory
opinion concerning Eastern Carelia. (PCIJ Advisory opinion No. 5: Eastern Carelia: <http://www.
icj-cij.org/pcij/serie_C/C_03_05/C_03_03_avis_consultatif_No_5.pdf, > at 15 December 2007.
Should it be the latter than it is to be concluded that this strategy proved to be unsuccessful.

13)

14) Teheran Hostages, supra, on page 10; Corfu Channel Case, [1949] ICJ Rep 248: While Article
53 thus obliges the Court to consider the submissions of the Party which appears, it does not
compel the Court to examine their accuracy in all their details; for this might in certain unopposed
cases prove impossible in practice. It is sufficient for the Court to convince itself by such methods
as it considers suitable that the submissions are well founded.
15) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), (Judgment of
14 February 2002), [2002] ICJ 2.
16)

Ibid, 6.

APLIKOVAN PRVO 1/2008

VAP_32.indd 73

73

24.6.2008 13:38:49

The matter at dispute was an international arrest warrant issued in absentia against Mr Abdulaye Yerodia Ndombasi for preparation and co-preparation
of offences constituting grave breaches of the 1949 Geneva Conventions17) (and
related additional protocols). At the time of the issue of the arrest warrant Mr
Ndombasi was the Minister for Foreign Affairs of the Democratic Republic of the
Congo (hereinafter the Congo).
On 17 October 2000, the Congo lled in the Registry of the ICJ an Application wherein the court was requested to adjudge and declare that the Kingdom of
Belgium (hereinafter Belgium) shall annul the international arrest warrant issued on 11 April 2000. The application of the Congo was based on two arguments,
namely that:
a.
The universal jurisdiction that the Belgian State attributes to itself
under Article 7 of the Law in question constituted a violation of the
principle that a State may not exercise its authority on the territory
of another- State and of the principle of sovereign equality among all
Members of the United Nations, as laid down in Article 2, paragraph
1, of the Charter of the United Nations, and
b.
The non-recognition, on the basis of Article 5. of the Belgian Law, of
the immunity of a Minister for Foreign Affairs in ofce constituted
a violation of the diplomatic immunity of the Minister for Foreign
Affairs of a foreign State, as recognized by the jurisprudence of the
Court and following from Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations.18)
At the time of the ICJs proceedings, however, Mr Ndombasi no longer held
any ministerial position in the Government of the Congo. In light of this fact, Belgium objected that there was no legal dispute to be resolved by the court among
the parties, which was one of the grounds for which Belgium submitted to the court
that it had no jurisdiction.19)

17) Which was punishable in Belgium pursuant to Art 7 of Belgiums Act of10 February 1999 concerning the Punishment of Serious Violations of International Humanitarian Law, which reads:
The Belgian courts shall have jurisdiction in respect of the offences provided for in the present
Law. wheresoever they may have been committed
18)

Cited via supra, page 10; emphasis omitted.

19) The judgment citing this submission of Belgium precisely reads as follows ([2002] ICJ Rep 11):

23. The first objection presented by Belgium reads as follows: That, in the light of the fact that
Mr Yerodia Ndombasi is no longer either Minister for Foreign Affairs of the [Congo] or a minister
occupying any other position in the Government [of the Congo], there is no longer a legal
dispute between the Parties within the meaning of this term in the Optional Clause Declarations
of the Parties and that the Court accordingly lacks jurisdiction in this case. 24. Belgium does not
deny that such a legal dispute existed between the Parties at the time when the Congo filed its
Application instituting proceedings, and that the Court was properly seised by that Application.
However, it contends that the question is not whether a legal dispute existed at that time, but
whether a legal dispute existed at the present time. Belgium refers in this respect inter alia to the
Northern Cameroons case, in which the Court found that it may pronounce judgment only in
connection with concrete cases where there exists at the time of the adjudication an actual controversy involving a conflict of legal interests between the parties (I.C.J. Rep 1963, pp. 33 34),
as well as to the Nuclear Tests cases (Australia v. France)(New Zealand v. France), in which the
Court stated the following: The Court, as a court of law, is called upon to resolve existing disputes

74

VAP_32.indd 74

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

The court rejected this objection of Belgium, stating that regardless to the
subsequent development, it sufced that there was a legal dispute between the
parties at the time the Application was lled.20) The court, subsequently, referring
to its previous jurisprudence,21) observed that its jurisdiction must be determined
at the time that the act instituting proceedings was led.22) Thus, if the Court has
jurisdiction on the date the case is referred to it, it continues to do so regardless of
subsequent events.23)
In the Right of Passage,24) (in fact the oldest of the cited cases), the absence
of a legal dispute was, inter alia, objected by India on the grounds that no negotiations had effectively taken place before the application was lled and therefore no
precise legal dispute had crystallized.
The disputed matter of the case was Portugals request that the court adjudge and declare that Portugal has got, under international law the right of passage through the territory of India in order to ensure communications between its
territory of Daman (coastal Daman) and its enclaved territories of Dadra and Nagar-Aveli, whereby the right comprises the transit of persons and goods, as well as

between States . . . The dispute brought before it must therefore continue to exist at the time
when the Court makes its decision (1. C. J Rep 1974, pp. 270- 27 1, Para 55; p. 476, Para 58).
Belgium argues that the position of Mr Yerodia as Minister for Foreign Affairs was central to the
Congos Application instituting proceedings. and emphasizes that there has now been a change
of circumstances at the very heart of the case, in view of the fact that Mr Yerodia was relieved
of his position as Minister for Foreign Affairs in November 2000 and that, since 15 April2001,
he has occupied no position in the Government of the Congo (see paragraphs 18 and 19 above).
According to Belgium, while there may still be a difference of opinion between the Parties on the
scope and content of international law governing the immunities of a Minister for Foreign Affairs,
that difference of opinion has now become a matter of abstract, rather than of practical, concern.
The result, in Belgiums view, is that the case has become an attempt by the Congo to [seek] an
advisory opinion from the Court, and no longer a concrete case involving an actual controversy)
between the Parties, and that the Court accordingly lacks jurisdiction in the case.
20)

Compare, however, with Nuclear Tests [1974] ICJ Rep 253 ff.

Namely: Nottebohm, (Preliminary Objections) [1953] ICJ Rep 122; Right of the Passage over
Indian Territory (Preliminary Objections) [1957] ICJ Rep 142; Lockerbie, (Preliminary Objection)
[1998] ICJ Rep 23-24, Para 38 (Libya v. UK); Lockerbie, (Preliminary Objections) [1998] ICJ Rep
129, Para 37 (Libya v. USA).

21)

It is to be noted however, that in the Nuclear Tests (New Zealand v. France) (Judgment of
20 December 1974) [1974] ICJ Rep 457 at 476 (Para 58) (which was invoked in Belgium in
the current case), the ICJ observed slightly differently that: The dispute brought before it must
therefore continue to exist at the time when the Court makes its decision. It must not fail to take
cognizance of a situation in which the dispute has disappeared because the final objective which
the Applicant has maintained throughout has been achieved by other means. Despite the fact
that the whereby in the current case the court deals with matters of jurisdiction to hear the case,
whereby in the Nuclear Tests Case the court was in a later stage of proceeding, there still exists
considerable contradiction in the courts approach. Cynics would probably say that in the Nuclear
Tests Cases (New Zealand v. France and Australia v. France) the court would have done anything
not to have to decide on the merits of the cases presented.

22)

23)

2002 ICJ Rep13, Para 26.

Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections, Judgment of
26 November 1957) [1957] ICJ Rep 125.
24)

APLIKOVAN PRVO 1/2008

VAP_32.indd 75

75

24.6.2008 13:38:49

the passage of representatives of the authorities and of armed forces necessary to

ensure the full exercise of Portuguese sovereignty in the territories in question.
In the above matter the court dealt with the technicalities of the prior communication between the Governments of India and Portugal, in order to assess
Indias objection. The court evaluated the nature of communication that had taken
place between the parties prior to the ling of the application and refused Indias
argument. The court stated:
In examining this Objection, the Court must consider the question of the
extent to which, prior to the ling of the Application by Portugal, negotiations had
taken place between the Parties in the matter of the right of passage. An examination of these negotiations shows that, although they cover various aspects of
the situation arising out of the political claims of India in respect of the enclaves,
a substantial part of these exchanges of views was devoted, directly or indirectly,
to the question of access to the enclaves. A survey of the correspondence and Notes
laid before the Court reveals that the alleged denial of the facilities
of transit to the enclaves provided the subject-matter of repeated complaints
on the part of Portugal; that these complaints constituted one of the principal objects of such exchanges of views as took place; that, although the exchanges between the Parties shad not assumed the character of a controversy as to the nature
and extent of the legal right of passage, Portugal described the denial of passage
requested by it as being inconsistent not only with requirement; of good neighborly
relations but also with established custom and international law in general; and
that these complaints were unsuccessful.
While the diplomatic exchanges which took place between the two Governments disclose the existence of a dispute between them on the principal legal issue which is now before the Court, namely, the question of the right of passage,
an examination of the correspondence shows that the negotiations had reached
a deadlock.25)
The court therefore observed that there existed a legal dispute which had
been dened through negotiations between the parties. Moreover, the court seems
to suggest that in dependence on the conditions of each an every particular case, it
is prepared to accept various levels of certainty to the denition of the particular
dispute, depending on the extend of certainty that the particular situation permits.26) Consequently the court dismissed the objection of the respondent.
Having dealt with the need of crystallization of a precise legal dispute let us
also recall the PCIJs judgment on the Interpretation of the Judgments Nos. 7 and 8
(Factory at Chorzw), concerning the application of that courts Statutes Art 60:27)
In so far as concerns the word dispute, the Court observes that, according to the tenor of Article 60 of the Statute. the manifestation of the existence of

25)

[1957] ICJ Rep 148-149.

26)

[1957] ICJ Rep 148-149.

The subsequent citation has been recalled and relied upon by the ICJ in The Application for
Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the
Continental Shelf (Tunisia / Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (Judgment of 10 December 1985) [1985] ICJ Rep 192 Para 47 at 217.
27)

76

VAP_32.indd 76

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

the dispute in a specic manner, as for instance by diplomatic negotiations, is not

required. It would no doubt be desirable that a State should not proceed to take
as serious a step as summoning another State to appear before the Court without
having previously, within reasonable limits, endeavoured to make it quite clear
that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that
it cannot require that the dispute should have manifested itself in a formal way;
according to the Courts view, it should be sufcient if the two Governments have in
fact shown themselves as holding opposite views in regard to the meaning or scope
of a judgment of the Court.28), 29)
Finally, also in situations when one state brings a case against another,
whereby the latter claims not to be the proper respondent (and that in fact another state should be sued), this mere fact constitutes a matter of a legal dispute,
regardless of whether a real dispute (concerning the merits on basis of which the
case is in fact initiated) actually exists between the applicant and the respondent.
This was the case in East Timor.30) Here Portugal (on behalf of the population of
Timor-Leste) brought a claim against Australia for conducting marine-time delimitation of the Timor Gap with Indonesia, at that time in occupation of Timor-Leste.
Australia argued in its preliminary objections, that Portugal should have in fact
brought a claim against Indonesia and that it is actually being sued in place of
Portugal, for which the case should be dismissed. The court disagreed, stating:
For the purpose of verifying the existence of a legal dispute in the present
case, it is not relevant whether the real dispute is between Portugal and Indonesia
rather than Portugal and Australia. Portugal has, rightly or wrongly, formulated
complaints of fact and law against Australia which the latter has denied. By virtue
of this denial, there is a legal dispute.31)
With the illustration by means of the above cited cases, one can provisionally conclude that, safe in situations where on the plane of international relations
such a move is rather sensitive32) and the court is desperate to avoid it, the court
is rather reluctant to accept arguments of the absence of a legal dispute. On the
contrary, in most of the cases presented to the court, it has refused jurisdictional
objections based on lack of a legal dispute (also referred to as mootness of the case)
and has, particularly in newer cases, developed a rather settled doctrine leading
to the localization and analysis of sectional legal question that it is competent to
rule upon.

Before turning to the subsequent section regarding the number of parties to

a dispute, a brief remark is to be made to the emerging doctrine of public interest.

PCIJ : Judgment No 11 ,1927, P.C.I.J., Series A, No. 13, pp 10 11.

28)

Similar view was taken also by the ICJ in Northern Cameroons (Cameroon v. United Kingdom),
(Preliminary Objections, Judgment of 2 December 1963) [1963] ICJ Rep 15 at 27.

29)

30)

East Timor (Portugal v. Australia) (Judgment of 30 June 1995), [1995] ICJ Rep 90 at 100.

31)

Ibid.

As was the case in the Nuclear Tests (Australia v. France and New Zealand v. France); see
[1974] ICJ Rep 253.

32)

APLIKOVAN PRVO 1/2008

VAP_32.indd 77

77

24.6.2008 13:38:49

This doctrine of public interest or obligations erga omnes has not been precisely
dened by the court. It has, however, on several occasions been considered by the
ICJ as sufcient for jurisdiction in contentious cases.
In South West Africa33) when claims were brought by Ethiopia and Liberia
against South Africa for its alleged breach of the Mandate for South West Africa
(treaty) by virtue of the way South West Africa was operated. One of the objections raised by the respondent was the lack of a dispute between the parties to the
proceedings, since the matters presented to the court do not affect any material
interests of the Applicant States or their nationals.34) In this particular case, the
court rejected this objection observing that the Art 7 of the Mandate conferred
upon Member States of the League of Nations the right for legal action. The court
thus construed the stated article Art 7 as a contractual basis for its jurisdiction
and concluded that:
Protection of the material interests of the Members or their nationals is
of course included within its compass, but the well-being and development of the
inhabitants of the Mandated territory are not less important.
The foregoing considerations and reasons lead to the conclusion that the
present dispute is a dispute as envisaged in Article 7 of the Mandate and that the
[] Preliminary Objection must be dismissed.
It was therefore in this particular case of an international treaty that gave
rise to the existence of a dispute admissible by the court. The treaty, however, was
due to the number of contracting parties rather quasi-universal, and as such gave,
in the eyes of the ICJ, rise to an admissible obligation erga omnes. It seems that
in the context of the rather specic mechanism of administration of the mandated
territories this could have been the only workable way to attempt to make obligations resulting from mandate treaties peacefully enforceable. It is to be noted, however, that neither the advisory opinions procedure, nor such a general approach
to inter-state obligations should substitute for the absence of an actio popularis
pursuant to the ICJs Statute. In fact, in the writers view, no such institute seems
to be appropriate among sovereign states.
In Genocide [Bosnia v. Yugoslavia (Serbia and Montenegro)]35) the court rejected, inter alia, Yugoslavias preliminary objection that read:
Whereas the case in point is an internal conict between three sides in
which the Federal Republic of Yugoslavia was not taking part and whereas the
Federal Republic of Yugoslavia did not exercise any jurisdiction within the region
of Bosnia and Herzegovina at the material time there is no international dispute under Article IX of the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide, consequently, the Court lacks the competence over the
case.36)

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Preliminary objections, Judgment of 21 December 1962) [1962] ICJ Rep 319.

33)

34)

Ibid, on page 343.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Preliminary Objections, Judgment of 11 July 1996) [1996] ICJ Rep 595.

35)

36)

Ibid, on page 607.

78

VAP_32.indd 78

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

The court concluded that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation
each State thus has to prevent and to punish the crime of genocide is not territorially
limited by the Convention.37) At rst sight, an analogy could be seen with the obligation resulting from the Mandate for South West Africa, namely that an obligation to
prevent and to punish genocide as a contractual obligation has arose as an obligation
erga omnes in respect to the signatory parties (that the all stands for all parties to
the convention. Others writers would, however, argue that erga omnes stands for
all subjects of international law, since this kind of obligation has become ius cogens.
The latter explanation seems to be the position of the ICJ as it recalls its previous
advisory opinion38) that stated that [] the principles underlying the Convention
are principles which are recognized by civilized nations as binding on States, even
without any conventional obligation []39) and concludes that the rights and obligations enshrined40) by the convention are rights and obligations erga omnes.41)
As opposed to South West Africa where no other conclusion seems to nd
grounds in the courts judgment but that the obligation erga omnes was based
on the very treaty and must have related to the state parties to the treaty (being
members of the League of Nations), in the current judgment the court concludes
a customary obligation of ius/jus cogens nature to be capable of being a subject to
a relevant dispute between states. Leaving aside the very conditions of the particular case where genocide was taking place in neighbourhooding countries, a question remaining to be answered by such a conception of dispute is whether if such
a case were brought by a member of the international community whose interests
were not directly injured (such as in case of genocide on one continent a third state
from another remote continent), whether such a dispute would not be too moot? It
is expectable that the answer would be negative, however, for rather moral than
legally logical reasons. In fact, one can conclude that in such a case, where the obligations arising from the peremptory norm in fact serves to protect interests o also
others than of the very state, inter alia, eligible to bring the claim, some kind of
actio popularis has been admitted by the ICJ.
In regard to the erga omnes nature of obligations or the peremptory quality
of the norms providing for these rights and/or obligations (ius/jus cogens), it is to
be noted that the mere fact of such a quality cannot substitute consent of the sovereign states to the jurisdiction of the ICJ. This natural conclusion has been repeatedly maintained by the ICJ in East Timor42) or Armed Activities on the Territory of
the Congo (New Application: 2002).43)

37)

Ibid, on page 616.

38)

[1951] ICJ Rep 23.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Preliminary Objections, Judgment of 11 July 1996) [1996] ICJ Rep 616.

39)

40)

Ibid.

41)

Ibid.

[1995] ICJ Rep 90 on page 102 (Para 29): the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature
of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State

42)

APLIKOVAN PRVO 1/2008

VAP_32.indd 79

79

24.6.2008 13:38:49

3.

The number of concerned parties

At this point, before analyzing the necessary number of parties as a condition of jurisdiction of the court/admissibility of a case, a remark to the terminology
and its possible differences must be made. The lack of jurisdiction means that the
court lacks any power to decide (in particular on the merits of) the case. This can
be for reasons of an absolute lack of any legitimacy to do so, or absence some rather
procedural condition that can be healed. The latter is considered to be inadmissibility of the case, a situation that can be healed. An example thereof is the need to
exhaust local remedies, or to address the correct number of respondents. The latter
will be dealt with in this part of the article. Since this contribution generally operates merely with the word jurisdiction, the reader is encouraged to bear in mind
this theoretical difference of the broader term lack of jurisdiction and the matters
of inadmissibility, meaning lack of jurisdiction in a particular time and under
conditions subject to possible change.44)
Another quality necessary to be present for the court to conclude that it
has got jurisdiction is that all directly impacted states are parties to the dispute.
In another words, if a legal position of a State that is not party to the dispute is to
be directly inuenced (such as when the court is to decide on matters of this third
states international responsibility) by the decision of the court, the court will not
exercise its jurisdiction.
In Monetary Gold45) such a situation arose. Italy raised such an objection.46)
The matter was, inter alia, that the court was asked to adjudge and declare 1) that
the Governments of the French Republic, Great Britain and Northern Ireland and
the United States of America should deliver to Italy any share of the monetary
gold that might be due to Albania under Part III of the Paris Act of January 14th,

when its judgment would imply an evaluation of the lawfulness of the conduct of another State
which is not a party to the case. Where this is so, the Court cannot act, even if the right in question
is a right erga omnes.
Armed Activities on the Territory of the Congo (New Application: 2002); (Democratic Republic
of the Congo v Rwanda) (Jurisdiction of the Court and Admissibility of the Application; 3 Februrary 2006) <http://www.icj-cij.org/docket/files/126/10435.pdf> (Para 125): Finally, the Court
deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself
constitute an exception to the principle that its jurisdiction always depends on the consent of the
parties (see paragraph 64 above

43)

44)

On this diference see also: Interhandel (Preliminary Objections) [1959] ICJ Rep 6, 26

Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of
Great Britain and Northern Ireland and United States of America) (Judgment of 15 June 1954)
[1954] ICJ Rep 19.

45)

It is to be noted that in this particular case the objection in question was, rather unorthodoxly
raised by the Applicant (subsequent to it having seised the court the Applicant, under the particular circumstances interrelated negotiations decided that it was perhaps necessary to raise this
objection). The court also needed to deal with the question whether the court can actually deal
with a preliminary objection of an Applicant. It eventually concluded that the Article 62 of the
Rules is couched in terms which do not limit to the Respondent the right to present preliminary
objections. (Ibid, on page 29).

46)

80

VAP_32.indd 80

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

1946, in partial satisfaction for the damage caused to Italy by the Albanian law of
January 13th, 1945.
It is clear from the above that despite of the application being formally directed against the Respondents, in fact the subject whose property was to be effectively inuenced was Albania. For this reason the court refused to adjudicate on
this matter and accepted Italys objections on jurisdiction, observing:
The Court cannot decide such a dispute without the consent of Albania. .
To adjudicate upon the international responsibility of Albania without her consent
would run counter to a well-established principle of international law embodied
in the Courts Statute, namely, that the Court can only exercise jurisdiction over
a State with its consent.47)
The court also touched upon a theoretical situation that Albania had intervened pursuant to Art 62 of the courts Statute. It has, however, avoided to directly
addressing, whether in case that a party in Albanias position had intervened, it
would have been ready to decide the merits of the case in regard to Albania. On the
grounds of the very fact, it merely concluded that:
Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albanias legal interests would not only be affected by
a decision, but would form the very subject-matter of the decision. In such a case,
the Statute cannot be regarded, by implication, as authorizing proceedings to be
continued in the absence of Albania.
The above indicated question, namely whether the court could in fact, subsequent to an intervention of a third party, decide in direct regard to the latter was
directly brought up by Nicaragua in her petition for intervention in the Maritime
Frontier Dispute (El Salvador/Honduras).48)
In this dispute, the court elaborated the question as to the position of an
intervening party, subject to having been permitted by the court to intervene. The
court in particular pointed out that the provisions of Art 62 of the Statute were not
intended to serve as alternative means of bringing an additional dispute as a case
before the court.49) According to the court, intervention cannot server as a substitute for contentious proceedings50) nor can an incidental proceeding be that which
transforms one case into a different one.51) The court thus concludes that:52
It is therefore clear that a State which is allowed to intervene in a case, does
not, by reason only of being an intervener, become also a party to the case.53)

47)

Ibid, on page 32.

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application by Nicaragua
for Permission to Intervene)(Judgment of 13 September 1990) [1990] ICJ Rep 92 ff.

48)

Referring to its ruling in Continental Shelf (Libyan Arab Jamahiriya / Malta) (Application to
intervene) [1984] ICJ Rep 23 Para 37; (El Salvador/Honduras, supra. on page 134).

49)

50)

El Salvador/Honduras, supra, on page 134, Para 99.

51)

Ibid, Para 98.

52)

Ibid.

A result of this concept is, inter alia, that the intervening state needs not to show any jurisdictional link between the parties and the intervening state; Ibid, on page 135, Para 101.

53)

APLIKOVAN PRVO 1/2008

VAP_32.indd 81

81

24.6.2008 13:38:49

Although the court, again, avoided to explicitly rule on the extend to which
it can exercise its jurisdiction in respect of an (intervening) third state, it seems to
be suggested by the above that since an intervening state cannot become a party,
again under certain circumstances of a particular case, should the court be asked
to rule of matters that would directly deal with legal position of an (intervening)
third state and that to the extend that would go beyond a mere interest of legal
nature to rather legal interest that would form the very subject-matter of the decision54) it would conclude to have lack of jurisdiction.
In the Certain Phosphate Lands in Nauru55) the court dealt with attempted
defense of Australia that if the court had found jurisdiction, it would have meant
having to issue nding in respect of the discharge by two other states, namely the
United Kingdom and New Zealand.
The subject matter of the court was a claim brought by Nauru against Australia, a claim that related to Australias responsibility for alleged breach of obligations arising from the 1947 UN Trusteeship Agreement for Nauru. Under the mentioned treaty, three states were in charge of Nauru, namely Australia, the United
Kingdom and New Zealand. It was only Australia that the claim was brought
against and that only for her alleged breaches. As indicated above, Australia came
with the defense that since there were three states involved with the trusteeship,
all of them would have to be sued together. The court observed that:
The Court does not consider that any reason has been shown why a claim
brought against only one of the three States should be declared inadmissible in
limine litis merely because that claim raises questions of the administration of
the Territory, which was shared with two other States. It cannot be denied that
Australia had obligations under the Trusteeship Agreement, in its capacity as one
of the three States forming the Administering Authority, and there is nothing in
the character of that Agreement which debars the Court from considering a claim
of a breach of those obligations by Australia.56)
The court went on to conclude that in this particular case, there is no need
to determine the responsibility of neither New Zealand nor the United Kingdom
in order to deal with the responsibility of Australia (the latter being the only object of Naurus claim). For this reason, the court did not accept Australias argument based on the authority of the Monetary Gold Case57) where, as opposed to
the present case, it was necessary to determine whether Albania had committed
any international wrong against Italy. The court pointed out58) that in the current
case (Nauru) a nding by the court regarding the existence of the content of the
responsibility attributed to Australia by Nauru might well have implications for

54)

Ibid, on page 116, Para 55; also [1954] ICJ Rep 32, or [1992] ICJ Rep 45.

Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections, Judgment of

26 June 1992) [1992] ICJ Rep 240.

55)

56)

Ibid, on page 259.

57)

As cited above.

58) Certain Phosphate Lands in Nauru (Nauru v. Australia)(Preliminary Objections, Judgment of 26

June 1992) [1992] ICJ Rep 261.

82

VAP_32.indd 82

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

the legal situation of the two other States concerned, but no nding in respect of
that legal situation will be needed as a basis for the Courts decision on Naurus
claim against Australia.
With regard to the case-law of the ICJ, it can be provisionally concluded as
follows:
1)
The court will see itself as lacking jurisdiction in situations that it
would in fact have to decide on legal interest or legal situation of
a non-party state as the very subject-matter of the decision;
2)
The court will, however, not rule out its jurisdiction in situations
when despite some impact of its ruling on non-party states, their legal situations would not be part of the core the very subject-matter
of the decision; the courts has thus, since the times of Monetary Gold,
restricted this ground for lack of jurisdiction so as not to open this
doctrine for misuse by respondents.

4.

Conclusion

Further development of the above indicated doctrines remains to be seen. In

particular the courts position to the time-point at which legal dispute must exist
for it to nd its jurisdiction may undergo some development, or perhaps the reassurance of the otherwise well formulated rule that it sufces that such dispute existed at the time the case was lled (as recently reafrmed by the Arrest Warrant59)
where the court relied upon its previous case-law, namely Nottebohm,60) Right of
Passage61) and Lockerbie62)) will be provided as opposed to the courts theory of
mootness in situations when it gets to politically sensitive for the court as was
the case in Nuclear Tests.63)
In regard to the position of third parties intervening into cases, some crystallization of the doctrine may also seem expectable. Insofar the following conclusion can be drawn in this context:
i)
The court will refuse to rule on merits of a case where a legal interest
of a non-party would constitute the very subject matter of the decision;
ii)
The mere fact that its ruling can touch upon matters of a third party,
without pronouncing on its position directly, cannot serve as a ground
for the lack of the courts jurisdiction;

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), (Judgment of
14 February 2002), [2002] ICJ 2.

59)

60)

Nottebohm, (Preliminary Objections) [1953] ICJ Rep 122.

61)

Right of the Passage over Indian Territory (Preliminary Objections) [1957] ICJ Rep 142.

Lockerbie, (Preliminary Objection) [1998] ICJ Rep 23-24, Para 38 (Libya v. UK); Lockerbie,
(Preliminary Objections) [1998] ICJ Rep 129, Para 37 (Libya v. USA).

62)

63)

[1974] ICJ Rep 270- 27 1, Para 55; [1974] ICJ Rep 270- 27 1 476 Para 58

APLIKOVAN PRVO 1/2008

VAP_32.indd 83

83

24.6.2008 13:38:49

iii)

An intervention into a pending case cannot serve as a tool to circumvent the conditions for contentious proceedings (Nicaragua in Land,
Island and Maritime Frontier Dispute);64)
iv)
For the reasons indicated in ad (iii), similarly as in ad (i), if an intervening states interest comes to constitute the very subject matter of
the decision, the court will also nd it has lack of jurisdiction.
As to the other doctrines developed by the court in context to the subject
matter of this article, the state of development of these doctrines seems to have
settled at the following conclusions:
1)
The Notion of the Dispute:
a.
The Doctrine of Partial Legal Question (to be localized by the
court in the case presented to the court) (Teheran Hostages);65)
b.
The Doctrine of Minimal Contours of the dispute (Right of
Passage);66)
c.
The Doctrine of a Sufcient Dispute over the Dispute (East
Timor).67)
The doctrine of partial legal question means that the courts analyzes, within the applicants submission, a partial legal question that it has got jurisdiction
to rule upon, refusing the respondents argument that the matter presented to the
court in fact only represents a political rather than legal dispute.
The doctrine of minimal contours of a dispute means that the court, in dependence on the circumstances of a particular case, considers it sufcient for the
disputed matter to be presented to the court by the parties in a form sufcient do
illustrate that a legal dispute exists, however in minimal details those that are
available to the party in a particular case in dependence on the available tracks
of previous communication between the parties (as was the case in Right of Passage68) and as was observed for instance in Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya).69)
The doctrine of a sufcient dispute over a dispute (its existence) provides,
as its title indicates, that the mere fact that the parties are in a dispute over the
question whether there is a legal dispute between them sufces for the court to
have jurisdiction.70)
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application by Nicaragua
for Permission to Intervene)(Judgment of 13 September 1990) [1990] ICJ Rep 92

64)

United States Diplomatic and Consular Staff in Teheran (United States of America v. Iran).
Decision of 24 May 1980, [1980] ICJ Rep 3.

65)

Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections, Judgment of
26 November 1957) [1957] ICJ Rep 125.

66)

67)

East Timor (Portugal v. Australia) (Judgment of 30 June 1995), [1995] ICJ Rep 90 at 100.

Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections, Judgment of
26 November 1957) [1957] ICJ Rep 125.

68)

The Application for Revision and Interpretation of the Judgment of 24 February 1982 in the
Case Concerning the Continental Shelf (Tunisia / Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya) (Judgment of 10 December 1985) [1985] ICJ Rep 192 Para 47 at 217.

69)

70)

East Timor (Portugal v. Australia) (Judgment of 30 June 1995), [1995] ICJ Rep 90.

84

VAP_32.indd 84

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

2)

The Number of Parties and the Obligation erga omnes

In regard to this question of a dispute in case of an obligation erga
omnes two rules have been developed:
a.
Any contracting party into whom a treaty vests some rights
and obligations vis--vis another contracting party may initiate proceedings against another contracting party in the same
contractual position (rights and/or obligations), provided that
there exists a basis for (formal) jurisdiction of the court (either
based on such a particular treaty or on declarations pursuant
to Art 36(2) of the courts Statute). (South West Africa)71)
b.
Any state may initiate a proceeding against another one that
is bound by ius cogens, provided also that there exists a (formal) ground for the courts jurisdiction (as the Art 36(2) of the
Statute). (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide)72)

Seznam pouit literatury / References

Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Preliminary Objections, Judgment of 11 July 1996) [1996] ICJ
Rep 595
Armed Activities on the Territory of the Congo (New Application: 2002); (Democratic Republic of the Congo v Rwanda) (Jurisdiction of the Court and Admissibility of the Application; 3 Februrary 2006) <http://www.icj-cij.org/docket/
les/126/10435.pdf>
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
(Judgment of 14 February 2002), [2002] ICJ 2
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
(Judgment of 14 February 2002), [2002] ICJ Rep 2
Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United
Kingdom of Great Britain and Northern Ireland and United States of America) (Judgment of 15 June 1954) [1954] ICJ Rep 19
Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections,
Judgment of 26 June 1992) [1992] ICJ Rep 240
Continental Shelf (Libyan Arab Jamahiriya / Malta) (Application to intervene)
[1984] ICJ Rep 23
Corfu Channel Case, [1949] ICJ Rep 248
East Timor (Portugal v. Australia) (Judgment of 30 June 1995), [1995] ICJ Rep 90
In Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda); <http://www.icj-cij.org/docket/
les/126/10435.pdf> 30 December 2007

71) South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Preliminary objections, Judgment of 21 December 1962) [1962] ICJ Rep 319.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Preliminary Objections, Judgment of 11 July 1996) [1996] ICJ Rep 616.

72)

APLIKOVAN PRVO 1/2008

VAP_32.indd 85

85

24.6.2008 13:38:49

Interhandel (Preliminary Objections) [1959] ICJ Rep 6

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, [1950] ICJ Rep 74
Judgment No 11 ,1927, P.C.I.J., Series A, No. 13, at 10
Koenig, C: Observer Status for the ICRC at the United Nations: a legal viewpoint.
In: (1991) 280 International Review of the Red Cross 31
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application
by Nicaragua for Permission to Intervene)(Judgment of 13 September 1990)
[1990] ICJ Rep 92
Lockerbie, (Preliminary Objection) [1998] ICJ Rep 23 (Libya v. UK)
Lockerbie, (Preliminary Objections) [1998] ICJ Rep 129, (Libya v. USA)
Mavrommatis Palestine Concessions [1924] PCIJ Ser. A No.2 <http://www.icj-cij.
org/pcij/index.php?p1=9&p2=1&p3=0&co=A02> 15 December 2007
Northern Cameroons (Cameroon v. United Kingdom), (Preliminary Objections, Judgment of 2 December 1963) [1963] ICJ Rep 15
Nottebohm, (Preliminary Objections) [1953] ICJ Rep 122
Nuclear Tests (New Zealand v. France) (Judgment of 20 December 1974) [1974]
ICJ Rep 457
PCIJ Advisory opinion No. 5: Eastern Carelia: <http://www.icj-cij.org/pcij/serie_C/
C_03_05/C_03_03_avis_consultatif_No_5.pdf, > at 15 December 2007
Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections,
Judgment of 26 November 1957) [1957] ICJ Rep 125
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Preliminary objections, Judgment of 21 December 1962) [1962] ICJ Rep 319
The Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case Concerning the Continental Shelf (Tunisia / Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (Judgment of 10 December 1985) [1985] ICJ Rep 192
The Explanatory Memorandum of the UN general Assembly: <http://www.icrc.org/
web/eng/siteeng0.nsf/html/57JNWH> at 15 December 2007
The UN Convention on the Law of the Sea (of 10 December 1982); <http://www.
un.org/Depts/los/convention_agreements/convention_overview_convention.
htm> at 15 December 2007
United States Diplomatic and Consular Staff in Teheran (United States of America
v. Iran). Decision of 24 May 1980, [1980] ICJ Rep 3

Klov slova
MSD, mezinrodn soudn dvr, sporn zen, jurisdikce MSD, pravomoc
MSD, strany, spor, prvn spor, ppustnost, skuten spor, ktivnost sporu, veejn
zjem, poet stran, actio popularit, intervence, zen, podmnky pravomoci, judikatura MSD.

Keywords
ICJ, international court of justice, contentious cases, jurisdiction of the ICJ,
parties, dispute, legal dispute, admissibility, real dispute, mootness, public inter86

VAP_32.indd 86

APLIKOVAN PRVO 1/2008

24.6.2008 13:38:49

est, number of parties, action popularis, intervention, subject-matter, proceedings,

conditions of jurisdiction, ICJ case-law.

Tom Mach
A Legal Dispute Between States: On the Conditions of the ICJs Jurisdiction in Contentious Cases
This article deals with certain selected attributes of cases submitted to the International Court of Justice that must be present for the court to find it has got jurisdiction,
namely relevant parties, their number, and the nature of the presented dispute.
The writer summarizes the rulings of the court (with reference to some cases
decided also by the PCIJ) and attempts to draw general doctrines derivable from the
courts conclusions.
In regard to the dispute, the writer in particular addresses the necessity for a dispute to be of a legal nature (legal dispute), the point in time in which the dispute must
exist for the court to declare it has jurisdiction and the detail in which such an existence
of such a dispute must be presented in order for the applicant to successfully pass the
stage of preliminary objections.
In regard to the relevant parties, subsequent to a rather brief reflection of the
contemporary state of the Statute of the International Court of Justice and the (non)
admittance of other subjects but sovereign states to this forum, the writer, by means of
an overview of past cases of the court, deals with the following topics: the number of
parties, the impact of third party being likely to be influenced by the case provided the
court proceeds to the merits, the role of an intervening state as opposed to another case
brought by such an entity as such, and the courts jurisdiction in case is brought against
a state for breach of obligations erga omnes.

APLIKOVAN PRVO 1/2008

VAP_32.indd 87

87

24.6.2008 13:38:49

VAP_32.indd 88

24.6.2008 13:38:49