1  That international judicial jurisdiction rests on the consent of States is a long accepted and rarely contested premise because all international tribunals have been created by agreement between States. In a number of cases, those agreements have included an additional requirement for consent to be given before the court in question could exercise its jurisdiction. The precise relevance of the principle of consent is, however, more complex for the simple reason that its relevance arises in multiple and diverse situations. The reason why there is no judicial jurisdiction over a State without that State’s consent is that there are no international obligations binding a State unless that State has assumed those obligations by its own consent, whether expressed in an international agreement, unilateral declaration, or customary rules of international law. The basis of an obligation to appear before and abide by the judgment of an international court or tribunal is not any different from any other international obligation, for instance one to repay a debt to a State to which it is owed, or one to accord tariff reduction to foreign goods or services imported into the State’s territory under a trade agreement. Jurisdiction of international tribunals is created and operates through the framework of ordinary sources of international law.

2  Therefore, while there can be no judicial jurisdiction without the consent of litigating States, that simple premise does not exhaust the range of more specific issues. These specific issues are: to whom and in what manner is consent to jurisdiction given; what happens when consent given is at variance with the relevant State’s empirical and contemporary willingness; and whether and to what extent consensual principle plays any discrete role when jurisdiction is established through a concrete instrument that is binding on States involved in the relevant litigation. And then, not all judicial jurisdiction depends on the consent of litigating States. There is also a statutory jurisdiction deriving directly from the constituent instruments of international tribunals to which States could be said to have consented by virtue of their acceptance of the relevant constituent instrument, as opposed to giving consent to jurisdiction over a specific case. Further, there is an inherent jurisdiction deriving from a tribunal’s judicial character.

3  In some situations, the consensual principle possesses discrete and free-standing relevance. To illustrate, the International Court of Justice (ICJ) has confronted cases in which there was no jurisdictional basis in the first place and the potential defendants refused to accept jurisdiction. In the Aerial Incident cases (see Aerial Incident Cases before International Courts and Tribunals), initiated by the United States (‘US’) against Hungary and the Union of Soviet Socialist Republics (‘USSR’), the potential respondents had not accepted the Court’s jurisdiction. When the proceedings were instituted and the application communicated to Hungary and USSR, these States straightforwardly replied that they saw no reason why the relevant controversies should be adjudicated upon by the International Court. The Court took note of that refusal and refused to adjudicate (see, for instance, Aerial Incident of 7 October 1952, United States of America v USSR, 1956, 9 at 11). In other cases, the potential respondent may be more receptive to the proposal of adjudication, even if it is not legally bound to take such attitude. In the Certain Criminal Proceedings in France Case (Congo v France), where the Republic of Congo had sued France concerning judicial investigations in France against certain Congolese officials, France consented to the jurisdiction of the Court to entertain the Congolese application (Forum Prorogatum).

4  Thus, in both of the above cases, no litigation was, or would have been, conducted but for the consent of the respondent States. However, the approach to this matter is not uniform across the international judiciary. In the arbitration case of Besserglik v Mozambique, the Tribunal conducted jurisdictional proceedings and issued an award denying jurisdiction, even though it was clear from the outset that the bilateral investment treaty (‘BIT’; Investments, Bilateral Treaties) between South Africa and Mozambique, on which the claimant tried to found jurisdiction, was not in force. The Tribunal stated that:

5  However, Mozambique was induced by the circumstances of the case to take part in it and share the costs of lengthy proceedings and appoint an arbitrator as the International Centre for Settlement of Investment Disputes (ICSID) Rules required. In this sense, and in a stark contrast to the ICJ’s above examples, Mozambique was held hostage by the fact of its being part of ICSID arrangements from which the general consent to take part in arbitration proceedings could be inferred—or Mozambique would alternatively suffer the risk of the proceedings going ahead with Mozambique’s arbitrator appointed by the Tribunal’s Chairman—but the clear and specific consent to arbitration involving South African citizens was obviously and manifestly lacking.

6  Not all judicial jurisdiction depends on the consent of the litigating parties, because there is also statutory jurisdiction, which involves the same powers which could operate as inherent powers in the case of tribunals to which their constituent instruments do not expressly confer that relevant power. For instance, the power to award remedies in a contentious case or the judicial power to determine a tribunal’s own jurisdiction can be featured expressly in the relevant tribunal’s constituent instruments, for instance and respectively Article 41 European Convention for the Protection of Human Rights and Fundamental Freedoms or Article 36 (6) ICJ Statute. However, tribunals will possess these powers even if their constituent instruments do not mention them because these powers are an essential part of their judicial function and judicial character in order for them to maintain independence from litigating parties, to preserve the subject matter of pertinent litigation, and to resolve relevant disputes with finality.

7  In the LaGrand Case (Germany v United States of America), the above was vividly illustrated. The respondent contended that the applicability of the jurisdictional clause under Article I Protocol to the 1963 Vienna Convention on Consular Relations did not provide for the ICJ’s power to decide on incidental issues of whether the provisional measures ordered were complied with and whether the Court was competent to order the remedy of the guarantees of non-repetition. The Court rejected such arguments by reference to inherent judicial powers to adjudicate these incidental issues as an integral part of substantive, or mainline, jurisdiction provided in the jurisdictional clause of Article I. The Court made clear, in the language of inherent powers, that it has the judicial powers inferable from a tribunal’s judicial character, which is independent from the consent of the litigating parties. The Court also made it clear that, where jurisdiction exists over the substance of a dispute, that jurisdiction covers the adjudication on compliance with the provisional measure orders as may have been indicated in the given case, as well as the issue of applicable remedies (LaGrand, Germany v US, 2001, 43–48).

8  The Court’s treatment of this issue was consistent with established jurisprudence on inherent powers with regard to judicial remedies (see generally Brownlie, 1996, 557–58; Fitzmaurice, 1958, 81–82). In Factory at Chorzów, the Permanent Court of International Justice (PCIJ) affirmed that the power to award reparations, as a natural consequence of every internationally wrongful act, was within its jurisdiction and that no additional consent of the parties was necessary (Factory at Chorzów, 1926, 23; see German Interests in Polish Upper Silesia Cases). In the Corfu Channel Case, the ICJ considered that it possessed the inherent jurisdiction to calculate the compensation, as this issue was a precondition of the finality of the settlement of a dispute (Corfu Channel, 1949, 26). In Fisheries Jurisdiction, the Court, despite objections by the respondent, construed the issue of compensation for wrongful acts as an inherent part of the dispute and thus affirmed its inherent jurisdiction to decide this issue (Fisheries Jurisdiction, 1974, 203; Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland)). In the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States) (‘Nicaragua’), the Court expressly affirmed that ‘jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation’ (Nicaragua, 1986, 142). These instances confirm that the inherent elements of the Court’s jurisdiction are necessary to ensure ‘the effectiveness of the undertaking contained in the jurisdictional clause’ and that the Court shall be considered as possessing the relevant jurisdictional powers (Lauterpacht, 1958, 246, 248). In the LaGrand proceedings, the issue of the Court’s power to order such consequential remedies arose acutely. The Court affirmed its competence to order such a remedy—in that case the guarantees of non-repetition—even in the face of fierce objections by the respondent (LaGrand, paras 117–25).

9  While jurisdictional instruments are created by consent, the precise ambit of the jurisdictional conferral depends on the interpretation of these instruments. An incorrect interpretation of jurisdictional clauses can lead either to denial of justice, the outcome of which may be overturned wherever appeal or review is available; or to excess of power that produces an ultra vires decision.

10  One area in which this matter arises involves declarations made by States under the ICJ Statute’s Optional Clause (Article 36 (2); Optional Clause Declarations: International Court of Justice (ICJ)). The nature and legal effects of the declarations of acceptance dictate that they should be considered as international agreements in the sense of the Vienna Convention on the Law of Treaties (1969) (‘VCLT’), which permits that an international treaty shall consist of the single or several interconnected acts and whatever is its particular designation (Art 2 (1) (a)). Moreover, the declarations under the Optional Clause are registered as international agreements under Article 102 United Nations Charter.

11  Given that the essential nature of Optional Clause Declarations is that of a treaty, their interpretation does not require the use of any particular presumptions. As Fitzmaurice suggests, ‘neither a deliberately liberal nor a deliberately restrictive interpretation of such clauses can be justified’ (Fitzmaurice, 1986, 513). He suggests that the only thing which is required is a strict proof of consent (Fitzmaurice, 1986, 514). But he also maintains that ‘there is a need for caution and restraint in construing all jurisdictional clauses [because they are jurisdictional ones]. … To say this, is quite a different thing from advocating any deliberately “restrictive” interpretation of such clauses’ (Fitzmaurice, 1986, 505 [emphasis in original]). It is noteworthy that here Fitzmaurice explains the need for restraint and caution in construing jurisdictional clauses not because they are different from treaties, but because they are jurisdictional. In the policy perspective, Fitzmaurice favours interpretation in favour of the respondent—and this confirms that his distinction between the notions of restrictive interpretation and caution and restraint is rather half-hearted. But in essence, this is to reiterate the same thing in different terms. If there is a need for restraint in construction of a jurisdictional clause because it is a jurisdictional clause, then it is difficult to imagine how they should not be interpreted restrictively. On the other hand, as Lauterpacht suggests, the intention of conferring jurisdiction on a tribunal ‘must, and can, be proved in the same way as any other obligation undertaken in a treaty or an instrument equivalent thereto’ (Lauterpacht, 1958, 338–39). There seems thus to be no requirement under international law to adopt a restrictive interpretation of any instrument. According to Shihata, ‘the concept of restrictive interpretation proved to have no significance in the work of the Court related to the interpretation of jurisdictional instruments’ (Shihata, 1965, 190; see also Cheng, 1953, 277–78, for the judicial practice regarding jurisdictional clauses for support of this view.) General law of interpretation applies to interpreting jurisdictional clauses, and methods of interpretation under Articles 31–33 VCLT are pertinent. No particular presumptions are warranted, and all that matters is whether the ordinary meaning of the jurisdictional clause warrants the particular dispute to be encompassed within a tribunal’s jurisdiction.

12  In Ambatielos (Preliminary Objections), the ICJ rejected a plea for restrictive interpretation of jurisdictional clauses. The Court had to clarify whether its jurisdiction could be established on the basis of the 1926 Declaration adopted together in the 1926 Anglo-Greek Treaty of Commerce and Navigation (‘1926 Treaty’) that replaced the similar 1886 Treaty. The 1926 Declaration provided that the 1926 Treaty did not prejudice private claims under the 1886 Treaty and provided recourse to arbitration under it. The Court observed that the Declaration that embodied the understanding of both parties covered all possible claims under the 1886 Treaty. The Court emphasized that to introduce some differences in terms of which cases are and which cases are not subject to arbitral jurisdiction ‘introduces a distinction for which the Court sees no justification in the plain language of the Declaration’ (Ambatielos, Greece v United Kingdom, 1952, 28 at 36; Ambatielos Case). That the Court applied the principle of effectiveness to jurisdictional clauses and was unwilling to interpret the relevant clause restrictively is clear from President McNair’s objections that Article 36 (1) ICJ Statute does not envisage ‘so slender a consensual foundation as is afforded by the use of one of these venerable and routine formulas (Ambatielos, 41; see further ibid, at 45). While McNair was vigorously pleading the relevance of the principle of consent as the basis of judicial jurisdiction, the Court’s treatment of the issue makes it clear that the sole relevance the consensual principle can have is based on the interpretation of the relevant instruments through the normal interpretative principles. Should jurisdiction be established through such process, the principle of consent can do precious little to upset this outcome.

13  In the Fisheries Jurisdiction Case (Spain v Canada), the ICJ emphasized that the Optional Clause declarations shall be interpreted ‘in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court’ (Fisheries Jurisdiction, Spain v Canada, 1998, para 49). Most pertinently, the Court held that:

14  However, the Court did not specify any implication of such character that would subject them to interpretation principles different from those applicable to treaties, apart from stating in paragraph 51 of the Judgment that the contra proferentem rule is not applicable to the unilaterally drafted instrument. But more importantly, even if the Court has emphasized the sui generis character of the Optional Clause declarations, the relevant parts of the judgment devoted to the interpretation of the respondent’s declaration do not involve any method of interpretation which would be divergent from, or unjustified in the light of, the provisions of the 1969 Vienna Convention. Paragraphs 62–84 of the Fisheries Jurisdiction judgment focus on the interpretation of the words used in the Canadian declaration according to their textual meaning and context. The Court notes on each and every occasion the priority of the text in interpreting a declaration (see Fisheries Jurisdiction, Spain v Canada, paras 48, 50, 66, and 76). Intention is, therefore, hardly a discrete factor in practice, and the ordinary meaning of a declaration’s provisions carries the day.

15  Some cases involving adjudication under the compromissory clause under Article 36 (1) ICJ Statute also illustrate that State consent to litigation must be understood as part of a wider framework or system which deals with the settlement of disputes under the relevant agreement. Litigation under the 1968 International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) illustrates this matter. Article 22 CERD provides that:

16  While addressing Article 22 CERD in Ukraine v Russia, the Court has initially stated that:

17  But then, and in a rather stark contrast with this approach, the Court has concluded that the two means of dispute settlement—negotiation and mediation via the Committee on the Elimination of Racial Discrimination (CERD) (‘CERD Committee’)—are alternative rather than cumulative. The Court thus allowed Ukraine to bring a case against Russia without exhausting the pre-adjudication means of dispute settlement mentioned in Article 22 CERD and after knowingly evading the use of the CERD Committee. As both States had given consent to jurisdiction as part of the broader CERD arrangements, the Court’s allegiance to the consensual principle is unclear. There is, moreover, a difference between jurisdictional clauses that provide the only means of dispute settlement under a multilateral treaty; for instance the ICJ under Article IX 1948 Genocide Convention, and those which form merely one element of a more complex dispute settlement architecture that the relevant multilateral treaty may contain, such as CERD, and in which judicial settlement of disputes operates in tandem with other patterns of dispute settlement.

18  In multiple instances, States consenting to judicial jurisdiction, especially within the ICJ framework, enter reservations to their instrument of acceptance, thus purporting to narrow the scope of the conferral of jurisdiction to the relevant international tribunal. In some cases such as the United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’), permissible reservations are listed in a constituent instrument and that restricts the options of States Parties as to the substance of reservations they wish to make. By contrast, within the framework of the ICJ, it is up to States accepting jurisdiction under Article 36 (2) ICJ Statute to determine what reservations they will enter to narrow the scope of the otherwise unlimited acceptance of judicial jurisdiction.

19  The general law of reservations codified in Articles 19 to 23 VCLT, dealing with the making, acceptance, or rejection of reservations, applies to reservations entered in relation to jurisdictional clauses. Under the VCLT, no reservation has ready-made and self-explanatory legal consequences. With regard to treaties, consent is mutual, while reservations involve only the will of their author States, unless they have been accepted by other States Parties to a treaty. There is no obvious difference between regional and international instruments, nor is the law of reservations under the VCLT stricter on reservations entered under the regional treaties and less strict on ones under universal treaties.

20  In Fisheries Jurisdiction (Spain v Canada), the Court did give effect to the Canadian reservation regarding the enforcement of certain standards in the North Atlantic Fisheries Organization (‘NAFO’) regulatory area, because that reservation was clear, discrete, and specific, and thus one that the State was entitled to enter in the first place. As President Schwebel’s Separate Opinion has clarified, the Court’s approach would have been different had the reservation in question conflicted with the Court’s Statute.

21  Along with the conflict of a declarant State’s intention with a court’s constituent instrument, in Fisheries Jurisdiction (Spain v Canada), Judge Weeramantry referred to ‘a telling example of the exclusion of commercial disputes under a hypothetical reservation. Could any application concerning the commercial exploitation of children be excluded under the reservation, on the argument that this constituted “a commercial issue”?’ (Dissenting Opinion of Judge Weeramantry, Fisheries Jurisdiction, Spain v Canada, para 27). Similarly, Judge Vereshchetin referred to situations ‘when the actions whose examination by the Court a State seeks to avoid, by making a reservation, are clearly contrary to the Charter of the United Nations, the ICJ Statute or to erga omnes obligations under international law’ (United Nations Charter; Obligations erga omnes). In this context, Judge Vereshchetin considered that the Court’s task cannot consider the will and intention of a State as conclusive, and ‘The Court would be failing in its duties of an “organ and guardian” of international law should it accord to a document the legal effect sought by the State from which it emanates, without having regard to the compatibility of the said document with the basic requirements of international law’ (Dissenting Opinion of Judge Vereshchetin, Fisheries Jurisdiction, Spain v Canada, para 11). The Canadian reservation in Fisheries Jurisdiction (Spain v Canada) was related to the conservation or management of fishing resources and, as it was not anti-statutory, the Court gave effect to it. However, not all expressions of State will would be given effect. As Judge Vereshchetin remarked:

22  In Chrysostomos and ors v Turkey and the Loizidou Case, the European Commission of Human Rights (ECommHR) and the European Court of Human Rights (ECtHR) have also overruled pleas based on the principle of consent. They held that the reservations attached to the declarations of the respondent State accepting the compulsory jurisdiction of these organs were invalid and did not affect the validity of entire declarations (Chrysostomos and ors v Turkey, 1991, 113–24; Loizidou v Turkey, 1995).

23  A rather troubling treatment of this problem was witnessed in the ICJ’s jurisdictional decision in Democratic Republic of the Congo v Rwanda (‘DRC v Rwanda’; see Armed Activities on the Territory of the Congo Cases), where a compromissory clause contained in Article IX 1948 Genocide Convention and a Rwandan reservation appended to that clause had to be assessed to ascertain the extent to which the respondent State had consented to the Court’s jurisdiction. The Court has observed that, ‘When a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out therein,’ and consequently in ‘the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention.’ As for the actual compatibility of the reservation, the Court asserted that:

24  As an additional argument, the Court emphasized that, as a matter of the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the Democratic Republic of the Congo (Congo, Democratic Republic of the) made no objection to it (DRC v Rwanda, para 68). Therefore, jurisdiction under Article IX Genocide Convention could not be entertained.

25  The Court’s judgment paid insufficient attention to how the law of treaties governs the validity and effect of reservations and what factors it requires addressing. The judgment therefore focuses only on a part of the available legal picture. In practice the permissibility of reservations to Article IX Genocide Convention has been denied. At early stages the Governments of Ecuador, Guatemala, Vietnam, and Cambodia considered that the reservations made by USSR, Ukrainian SSR, Byelorussian SSR, Bulgaria, Romania, and Czechoslovakia, which included reservations to Article IX, did not apply to them (Written Statement of the United Nations in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951, 104–5, 108–9 (‘Reservations Case’); Genocide Convention, Reservations (Advisory Opinion)). The position of Guatemala and France was that even from the fact of the initial silence it cannot be inferred that they accepted those reservations (paras 105, 109). But subsequently Guatemala seems to have changed its approach by stating that reservations may affect the application of the clauses concerned (paras 105–6). The United Kingdom (‘UK’) and Australia also objected to these reservations, noting that ‘the reservation must either be abandoned or the State making the reservation must remain outside the Convention’ (paras 106–7). France, on the other hand, considered that reservations with which it did not agree were not applicable in relation to it, but made no reference to the invalidity of the entire acceptance (para 109). The Philippines considered that the objection to its reservations by certain States did not affect the validity of the entire acceptance of the Convention by the Philippines and that it was ready to bring a contentious case concerning this issue before the International Court under Article IX Genocide Convention (para 110). The UK has taken the view that the jurisdictional obligation in Article IX is ‘one of the prime guarantees of the due fulfilment of the basic obligation to prevent and punish the crime of genocide’ and was so regarded in the process of preparation and adoption of the Convention; ‘Conventions of this kind are illusory unless there is some machinery as that of appeal to the International Court of Justice’—Oral Statement by Sir Hartley Shawcross in the Reservations Case, 1951, 380). Subsequently, the UK has consistently maintained the view that reservations to Article IX Genocide Convention are impermissible. It has objected to reservations to Article IX by Rwanda, Vietnam, Yemen, Singapore, Malaysia, and the US, having ‘consistently stated that they are unable to accept the reservations in respect to Article IX … [because] this is not the kind of reservation which intending parties to the Convention have the right to make’ (UK statements of 21 November 1975, 26 August 1983, 30 December 1987, 22 December 1989, and 20 March 1996). All this confirms that State practice has by no means, not even on a single occasion, affirmed that reservations to Article IX are permitted. Instead of focusing on the legal framework, the Court accorded blanket relevance to the consensual principle, without regard to the nature and structure of the entire arrangement as part of which Rwanda had consented to the Court’s jurisdiction, or to what other States had made of Rwanda’s position.

26  Some constituent instruments expressly define what the applicable law is for pertinent litigations, and in some cases, they include reference to extraneous rules, ie ones that derive from sources of law other than the constituent instrument itself. An example of this is UNCLOS which enables the International Tribunal for the Law of the Sea (ITLOS) to use not just UNCLOS provisions, but also general international law. When accepting ICJ jurisdiction in 1946, the US excluded multilateral treaties from the Court’s use, while the Iranian declaration use in the Anglo-Iranian Oil Company Case was referring to treaties only.

27  A more acute problem can arise when a jurisdictional conferral provides for the judicial use of a single treaty instrument, ostensibly to the exclusion of other sources of international law. An early treatment of this issue was given by the PCIJ in the Oscar Chinn Case. The majority of the PCIJ in Oscar Chinn has given preference to the treaty which was concluded later in time and pleaded by the litigating parties (Oscar Chinn, 80, pointing out that the 1919 Treaty was an immediate source of the parties’ contractual obligations). The dissents by Judges Schucking and van Eysinga raised some valid issues as to how far such insistence of the patterns of bilateralism could be correct (Oscar Chinn, 136, 148–50). The point here is that an international tribunal is not supposed to adopt a ruling which is properly based on the treaty that the litigant parties rely on, yet produces an outcome that places the rights and obligations of those litigant parties, and the ruling itself, in conflict with the rights of third parties.

28  The ICJ has given more sensitive reaction to this problem in the Oil Platforms Case (Iran v United States of America), in which Iran expressly relied on general international law on the use of force that has the force of ius cogens, the contradicting of which would make the 1955 Iran-US Treaty on which jurisdiction was founded null and void. But for overriding ius cogens, the outcome arrived at in Oil Platforms could not be obtained because Article XX Iran-US Treaty could on its face be interpreted as authorizing the use of force as an ‘essential security measure’, even if that measure does not comply with the requirements of the right to self-defence under jus ad bellum. Only such peremptory nature of jus ad bellum could lead to the legitimate presumption that States Parties could not authorize the use of force of the kind that would remain illegal despite their agreement to the contrary and would have invalidated that agreement pursuant to the rule stated in Article 53 VCLT (see Oil Platforms, Iran v US, 2003; and case review by Orakhelashvili, 2003).

29  The above evidence demonstrates that there is a twofold relevance that the consensual principle possesses: to delimit the scope of jurisdictional conferrals; and to ensure that by bilateral agreement a tribunal is not endowed with the authority to trump third parties’ rights or enact a decision violating rules from which States conferring jurisdiction to a tribunal have no right to violate. There is no jurisdiction by consent, but consent cannot create jurisdiction enabling a tribunal to do things which parties to a litigation are not allowed to do either unilaterally or bilaterally.

30  The relationship between jurisdiction and applicable law arises in the context of one particular type of jurisdiction, which is supervisory and review jurisdiction. It sometimes happens that States agree to entrust the relevant judicial or quasi-judicial organ to resolve disputes regarding the review of judicial decisions already made by another tribunal, although not to re-open the merits of the case already decided by that tribunal or to re-appraise the substance of a tribunal’s treatment of the parties’ claims in it. Ordinarily, instruments conferring jurisdiction will determine the grounds on which such review jurisdiction can be exercised. However, the issue of interpreting jurisdictional clauses arises, and organs endowed with that jurisdiction still retain their power to determine their own jurisdiction. This has been illustrated in the practice of ICSID annulment committees under Article 52 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’).

31  The CMS v Argentina annulment committee adopted a restrictive view of its own jurisdiction: it could annul arbitral awards on grounds specified under Article 52 ICSID Convention but not act as court of appeal (CMS Gas Transmission Company v Argentine Republic, 2007 (‘CMS v Argentina’)). The Committee concluded that it was not going to review the Arbitral Tribunal’s use of Article XI 1991 Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment (Argentina/US BIT). It was true that the Arbitral Tribunal ‘did not examine whether the conditions laid down by Article XI were fulfilled and whether, as a consequence, the measures taken by Argentina were capable of constituting, even prima facie, a breach of the Argentina/US BIT. If the Committee was acting as a court of appeal, it would have to reconsider the Award on this ground’ (CMS v Argentina, para 135). However, subsequent annulment committees have taken a more proactive approach and interpreted Article 52 ICSID Convention so that they can review the tribunals’ incorrect use of substantive applicable law (Continental Casualty v Argentine Republic, 2011, para 86; Sempra v Argentina, Award, 2007; Enron v Argentine Republic, 2010). More generally, ICSID tribunals have consensual jurisdiction and they can determine the scope of that jurisdiction; if they get it wrong, annulment committees can reverse it. Annulment committees likewise have consensual jurisdiction and the power to determine their own jurisdiction. If they get it wrong, there is no further institutional annulment procedure available. This is what militates for annulment committees interpreting their Article 52 jurisdiction broadly. Otherwise, plainly contra legem awards can be confirmed and States will be more inclined to effect unilateral non-compliance, citing the failure of institutions to provide the required degree of justice.

32  A different type of review jurisdiction is one under Article 61 ICJ Statute where the ICJ can be requested to reverse its substantive findings in the previously decided case if any new fact is discovered. The exercise of this jurisdiction does not depend on State consent and it is entirely statutory. It can be exercised by the Court without requiring consent from the respondent State. However, it has to be a fact unknown at the time of original decision, not its particular qualification. Hence, the threshold to exercise this review jurisdiction is rather high.

33  The consensual nature of the Court’s jurisdiction requires that consent by a State against which the Court makes a decision is duly present. However, the ICJ’s jurisprudence on this matter has not been uniform. In East Timor (Portugal v Australia), the ICJ declined jurisdiction against Australia, claiming that its exercise would affect the interests of Indonesia with whom Australia had dealings with regard to East Timor. As one of the justifications for declining its jurisdiction, the Court suggested, pursuant to the respondent’s submission, that the ‘essential principle of consent prohibits the Court to rule in this case’ (East Timor, Portugal v Australia), 1995, 105, para 34). In the earlier Certain Phosphate Lands in Nauru Case (Nauru v Australia) (‘Nauru’), Australia argued that its objection to the Court’s competence was based on the principle of consent and not on the doctrine of an absent third State (Nauru, 1992, 49). This assumption, though rejected by the Court, was upheld by some judges by reference to the argument that the consensual nature of the Court’s jurisdiction prevents the Court from considering cases involving the interests of an absent State (eg Dissenting Opinion of Judge Schwebel, Nauru, 1992, 330; Indispensable Party). The attempt to portray the Monetary Gold principle (Monetary Gold Arbitration and Case), which enjoins the Court from adjudicating on rights of States not parties to proceedings before it, from the perspective of the Court’s consensual jurisdiction, was made in Nicaragua. The respondent asserted that the Court could not adjudicate on the rights of absent States ‘without their express consent or participation in the proceedings before the Court’ (Nicaragua, 1984, 430, para 86), but the Court rejected this contention by stating that the decision to be adopted would not be a decision against the absent third States (Nicaragua, 1984, 431).

34  Thus, ICJ jurisprudence offers no uniform picture as to whether the principle of consent does or does not prevent the Court from adjudicating cases where it does not enter a judgment against a third State but nevertheless prejudices its legal interests. For the purpose of uniform application of law, the outcome should be uniform as well, capable of being consistently applied to situations faced in East Timor and in other cases. The approach adhered to in East Timor has not satisfactorily led to either conclusion. Thus it cannot be considered as a sound statement of law. The argument that the principle of consent is contravened when the determination of responsibility of an absent State is a precondition for assessment of conduct of the respondent, but not in other cases where the ruling on the applicant’s claims entails practical prejudice to the legal interests of absent States—in fact not less than would be the prejudice for Indonesia in East Timor—would be absurd in itself.

35  By consenting to the Court’s jurisdiction one way or another, States consent to the Court’s power to issue decisions binding on them under Article 59 ICJ Statute. The principle of consent has nothing to do with the mere impact on, or prejudice to, the rights and interests following from the Court’s decision, unless that decision is one against an absent State.

36  Other international tribunals have refused to endorse the East Timor approach. The case of Stephens v Malta further illustrates that the attribution of violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘European Convention on Human Rights’; ‘ECHR’) to a State is perfectly possible even if that State has no effective control whatsoever over the relevant individual. The ECtHR encountered the situation where one State acted at the request or instigation of another State, and noted that:

Therefore, the applicant’s complaints under Article 5 ECHR engaged the responsibility of Malta under the Convention, even though Spain was not before the Court.

37  In Norstar before the ITLOS, the respondent, Italy, argued that:

38  The Tribunal was, however, able to separate Spanish and Italian conduct from each other. The Tribunal concluded that:

39  As can be seen, ITLOS in Norstar separates the role of respondent and third States, unlike the holistic treatment thereof in East Timor.

40  When adjudicating on provisional measures under Article 41 ICJ Statute, the ICJ ordinarily requires the presence of prima facie jurisdiction, or evidence that it is not manifestly lacking, in the pertinent case. Owing to the fact that jurisdiction to indicate provisional measures is a statutory jurisdiction independent of the consent of litigating States, the requirement of prima facie jurisdiction over the merits of the relevant case has been of controversial relevance from the outset. This is the ICJ’s own creation not reflected in Article 41 ICJ Statute. Article 41 ICJ Statute does not contain the requirements as to the jurisdiction the Court should possess in relation to indicating interim or provisional measures, unlike, for instance, Article 290 UNCLOS, which expressly requires that a tribunal established under this Convention have prima facie jurisdiction for indicating provisional measures.

41  The jurisdiction of the Court being disputed does not prevent the Court from indicating the provisional measures (Nicaragua, 1984, 39ff). Several approaches have emerged in practice. The Anglo-Iranian approach to jurisdiction in indicating provisional measures is that the claims of the party should not a priori fall outside the scope of international jurisdiction.

42  In the Interhandel Case, Judge Lauterpacht’s dissent argued that the Court shall make no order unless there are ‘no reservations obviously excluding its jurisdiction’ (Interhandel, 1957, 118–19). Nevertheless, the Court in that case did not consider the respondent’s invocation of the automatic reservation, ie one that enables the reserving State to determine whether the reservation is applicable to the case in question, as preventing it from indication of measures related to the subject matter of that reservation (Interhandel, 1957, 110–11), although at the jurisdictional stage the invocation of such reservation by a party is supposed to give rise to a serious jurisdictional dispute. The restrictive approach was also supported by Judges Winiarski and Badawi in the Anglo-Iranian case, maintaining, contrary to the majority view, that the request for an interim order must be denied unless the Court’s jurisdiction on merits is reasonably probable (Anglo-Iranian, 1952, 97).

43  Most cases adhere to the requirement that the Court must ascertain that it prima facie possesses jurisdiction, which is not referred to in the Anglo-Iranian case. From the reasoning of Lauterpacht, it is clear that to have prima facie jurisdiction is not identical with probably having jurisdiction. The latter finding would commit the Court later at the jurisdictional stage (Lauterpacht, 1958, 225).

44  In terms of yet another approach, the Court affirmed in the Aegean Sea Continental Shelf Case, Greece v Turkey (‘Aegean Sea’), that for the indication of provisional measures the Court ‘has only to satisfy itself that it does not manifestly lack jurisdiction’ (Aegean Sea, 1976, 8). In principle this is so only in cases where there is no jurisdictional instrument on which a party could rely; the scope of such instrument, including reservations to it, does not seem to be crucial. This latter issue has to be decided at a later stage of the proceedings. Some cases, however, quite exceptionally understand the requirement of prima facie jurisdiction as the requirement of the near-absolute certainty of jurisdiction at this preliminary stage. In Legality of the Use of Force (Yugoslavia v Belgium), the first case where the Court declined a request for provisional measures on jurisdictional grounds, the Court examined the jurisdictional issues based on the declarations under the Optional Clause, to clarify what Yugoslavia had ‘intended’ when accepting the Court’s jurisdiction. The Legality of the Use of Force case involved the declaration of the Former Republic of Yugoslavia (‘FRY’) conferring jurisdiction to the Court ‘in all disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature’, ie 25 April 1999. Given that the attacks by the North Atlantic Treaty Organization (NATO) on the FRY began on 24 March 1999, the Court has controversially, indeed counterfactually, claimed that ‘each individual air attack could not have given rise to a separate subsequent dispute’ (Legality of the Use of Force, Yugoslavia v Belgium, 1999, 29; Legality of the Use of Force, Yugoslavia v Canada, 1999, 28; Legality of the Use of Force, Yugoslavia v Netherlands, 1999, 38; Legality of the Use of Force, Yugoslavia v Portugal, 1999; see also Separate Opinion of Judge Higgins in Yugoslavia v Belgium, para 8). This statement in a given context is the failure of the Court to exercise its judicial function according to its Statute and international law. If there were even only one attack against Yugoslavia, it would be sufficient to give rise to a dispute; alternatively, the applicant could, in general, limit its application to the events which took place after 26 April, in accordance with its intention. One wonders whether the Court would have applied the same approach had NATO States sued Yugoslavia for atrocities committed in Kosovo around the same time as NATO bombing of Yugoslavia’s territory was ongoing—atrocities stretching over a period of time before and after Yugoslavia had deposited its optional clause declaration.

45  It is also pertinent that, in her Separate Opinion, Judge Higgins in Legality of the Use of Force, Yugoslavia v Belgium, defended the Court’s approach by advancing the restrictive understanding of prima facie jurisdiction—the approach rejected in the practice of the Court—and referring merely to the views expressed in individual opinions and rejected by the Court as a whole in the pertinent cases, that is the Opinions of Judges Badawi and Winiarski in Anglo-Iranian Oil Co, and Judge Lauterpacht in Interhandel (Legality of the Use of Force, Yugoslavia v Belgium, Order, provisional measures, Separate Opinion of Judge Higgins, [1999] ICJ Rep 165, 168).

46  The Anglo-Iranian case approach to provisional measures is in principle sound. Regrettably, it has not been followed up in a number of subsequent cases. The variety of standards applied in the absence of statutory requirements can only emphasize the uncertainty that can put different litigants in different positions, thus undermining the uniformity of international justice. The Anglo-Iranian case standard, which is closer to the approach focusing on manifest lack of jurisdiction, must be preferred to the subsequent approaches. The only defensible use of the prima facie jurisdiction approach would, in its turn, be its reflection of the manifest lack of jurisdiction approach. Only such a position would relieve the applicant States of the burden, in real terms, of establishing the existence of the Court’s jurisdiction at the interim measures stage.

47  If judicial jurisdiction is established by sources of law embodying State consent, the content and context of those sources and instruments can help to clarify how and to what extent jurisdiction has been consented to. There is, quite simply, no single pattern of State consent operating across the field of international dispute settlement. While all judicial jurisdiction is consensual, the meaning and effect of the consensual jurisdiction depends on the content of the instrument through which it has been assumed. As the above analysis has demonstrated, the relevance of the consensual principle in international dispute settlement is far more complex than a one-dimensional premise that jurisdiction as such and invariably is created by State consent and cannot be exercised in the absence of it. The context in which jurisdictional instruments are submitted and operate is also important. And then, the consensual principle of consent operates, subject to the limits on the contractual capacity of States, to avoid adverse interference with third party rights or international public order.

Cited Bibliography

• B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens & Sons Ltd London 1953).

• G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54 – Questions of Jurisdiction, Competence and Procedure’ (1958) 34 BYIL 127.

• H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons London 1958).

• I Shihata, The Power of the International Court to Determine its Own Jurisdiction (Martinus Nijhoff The Hague 1965).

• I Brownlie, ‘Remedies in the International Court of Justice’ in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (CUP New York 1996) 557–66.

• A Orakhelashvili, ‘Judicial Competence and Judicial Remedies in the Avena Case’ (2005) 18(1) LJIL 31–48.

• A Orakhelashvili, ‘Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006’ (2006) 55 ICLQ 753–63.

• A Orakhelashvili, 'Interpretation of Jurisdictional Instruments in International Dispute Settlement’ (2007) 6(1) LPICT 159–88.

Cited Documents

• COE, ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (European Convention on Human Rights).

• Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

• Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965, entered into force 14 October 1966) 575 UNTS 159.

• International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 7 March 1966, entered into force 4 January 1969) 660 UNTS 195.

• Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 145 BSP 832.

• United Nations Convention on the Law of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.

• Vienna Convention on Consular Relations (concluded 24 April 1963, entered into force 19 March 1967) 596 UNTS 261.

• Vienna Convention on the Law of Treaties (concluded 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

Cited Cases

• Aegean Sea Continental Shelf Case, Greece v Turkey, Order, interim protection, 11 September 1976, [1975] ICJ Rep 3.

• Aerial Incident of 7 October 1952, United States v USSR, Order, removal from the list, 14 March 1956, [1956] ICJ Rep 9.

• Ambatielos, Greece v United Kingdom, Judgment, Preliminary Objection, 1 July 1952, [1952] ICJ Rep 28.

• Anglo-Iranian Oil Company Case, United Kingdom v Iran, Judgment, Preliminary Objections, 22 July 1952, [1952] ICJ Rep 93.

• Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Ukraine v Russian Federation, Judgment, preliminary objections, 8 November 2019, ICJ General List No 166.

• Armed Activities on the Territory of the Congo (New Application: 2002), Congo, The Democratic Republic of the v Rwanda, Judgment on jurisdiction and admissibility, 3 February 2006, [2006] ICJ Rep 6.

• Besserglik v Republic of Mozambique, Award, 28 October 2019, ICSID Case No ARB(AF)14/2.

• Certain Phosphate Lands in Nauru, Nauru v Australia, Judgment, preliminary objections, 26 June 1992, [1992] ICJ Rep 240.

• Chrysostomos and ors v Turkey, Admissibility, 4 March 1991, App 15299/89, App 15300/89, App 15318/89.

• CMS Gas Transmission Company v Argentina, Decision of the Ad hoc Committee on the Application for Annulment of the Argentine Republic, 25 September 2007, ICSID Case No ARB/01/8; 46 ILM 1136.

• Continental Casualty Company v Argentina, Annulment Decision, 16 September 2011, ICSID Case No ARB/03/9.

• Corfu Channel, United Kingdom v Albania, Judgment, merits, 9 April 1949, [1949] ICJ Rep 4.

• East Timor, Portugal v Australia, Judgment, jurisdiction, 30 June 1995, [1995] ICJ Rep 90.

• Enron v Argentina, Decision on Annulment Proceeding, 30 July 2010, ICSID Case No ARB/01/3.

• Factory at Chorzów, Certain German Interests in Polish Upper Silesia, Germany v Poland, Judgment, 25 May 1926, PCIJ Series A, No 7, 23.

• Fisheries Jurisdiction Case, United Kingdom v Iceland, Judgment, merits, 25 July 1974, [1974] ICJ Rep 3.

• Fisheries Jurisdiction, Spain v Canada, Judgment, jurisdiction of the Court, 4 December 1998, [1998] ICJ Rep 432.

• Interhandel Case, Switzerland v United States, Order, interim measures, 24 October 1957, [1957] ICJ Rep 105.

• LaGrand Case, Germany v United States, Judgment, merits, 27 June 2001, [2001] ICJ Rep 466.

• Legality of Use of Force, Federal Republic of Yugoslavia v Belgium, Order, provisional measures, 2 June 1999, [1999] ICJ Rep 124.

• Legality of Use of Force, Federal Republic of Yugoslavia v Canada, Order, provisional measures, 2 June 1999, [1999] ICJ Rep 259.

• Legality of Use of Force, Federal Republic of Yugoslavia v Netherlands, Order, provisional measures, 2 June 1999, [1999] ICJ Rep 542.

• Legality of Use of Force, Federal Republic of Yugoslavia v Portugal, Order, provisional measures, 2 June 1999, [1999] ICJ Rep 656.

• Loizidou v Turkey, Preliminary Objections, ECtHR, 23 March 1995, Series A-310.

• Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States,, Provisional Measures, Order, 10 May 1984, [1984] ICJ Rep 169.

• Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States, Judgment, merits, 27 June 1986, [1986] ICJ Rep 14.

• M/V ‘Norstar’ Case, Panama v Italy, Preliminary objections, 4 November 2016, ITLOS Case No 25; ITLOS Rep 44.

• Oil Platforms, Iran v United States, Judgment, merits, 6 November 2003, [2003] ICJ Rep 161.

• Oscar Chinn, United Kingdom v Belgium, Judgment, 12 December 1934, PCIJ Series A/B No 63.

• Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951, ICJ Pleadings 18–433.

• Sempra v Argentina, Award, 28 September 2007, ICSID Case No ARB/02/16.

• Stephens v Malta (No 1), Judgment, 21 April 2009, App 11956/07