In Right of Passage over Indian Territory India objected that Portugal had failed ‘to undertake diplomatic negotiations and continue them to the point where it was no longer profitable to pursue them’.4 The Court said that negotiations had been pursued ‘to the extent permitted by the circumstances of the case’.5 The jurisprudence of the Court establishes that active negotiations between the parties are not, in general, a prerequisite to the Court’s exercise of jurisdiction.6 However, the Court’s decision in Georgia v Russia7 has unsettled the position, and further analysis is required.

(A)  The Existence of a Dispute

Whether or not a dispute exists is a matter for objective determination.8 In South West Africa9 the Republic of South Africa objected that the conflict or disagreement alleged by Ethiopia and Liberia was not a ‘dispute’ in terms of Article 7 of the Mandate for South West Africa, as it did not involve or affect any material interests of those governments or their nationals.10 The Court held that there was a dispute within the meaning of Article 7.11 Yet irrespective of the existence of a dispute within the meaning of the adjudication clause relevant to the proceedings, there was a prior question—was there a legal dispute in existence at all? The Court held that there was a dispute as defined in Mavrommatis,12 ‘a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons’. The Court also indicated that for a dispute to exist ‘it must be shown that the claim of one party is positively opposed by the other’.13

References(p. 695) (B)  ‘Concerning the Interpretation Orapplication of a Treaty’

Conventions frequently include compromissory clauses conferring jurisdiction over disputes concerning the ‘interpretation or application’ of the treaty.14 The inclusion of this language serves to define the scope of the Court’s jurisdiction ratione materiae.15 Given that the function of the Court is to decide ‘such disputes as are submitted to it’,16 the qualifying words in such clauses should be treated as requiring a connection between the subject-matter of the treaty and the subject-matter of the claim, rather than as a means of unduly restricting access to the Court.

In Georgia v Russia, Georgia invoked Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)17 as the basis for the Court’s jurisdiction. Alleging multiple violations of CERD, Georgia requested the Court to order, inter alia, that Russia take measures to ensure the safe return of internally displaced persons and pay compensation ‘for its role in supporting and failing to bring to an end the consequences of the ethnic cleansing that occurred in the 1991–1994 conflicts’.18 The Court rejected Russia’s argument that the term ‘dispute’ in Article 22 had a special, narrower meaning than the general meaning of dispute established in previous jurisprudence.19 In the event, however, its analysis of the evidence reflected a considerably more formalistic approach than the Court had previously taken. Georgia had raised concerns about Russia’s role in the deteriorating situation in South Ossetia and Abkhazia during a period of over 10 years, but it did not expressly refer to CERD in its dealings with Russia until 9 August 2008, three days before submitting its application to the Court. Applying an atomistic analysis of the diplomatic correspondence, the Court held that there was no dispute ‘concerning the interpretation or application’ of CERD until that date.20Despite the Court’s protestations to the contrary, this arguably marks a departure from previous practice by requiring formal notice and rejection of a claim, with express reference to the relevant treaty, before the claimant can seize the Court.21

References(p. 696) (C)  Not Settled by Negotiation

Other terminology commonly included in compromissory clauses is that the dispute in question ‘is not’, ‘has not been’ or ‘cannot be’ settled by negotiations. The Court has observed that ‘while the existence of a dispute and the undertaking of negotiations are distinct as a matter of principle, the negotiations may help demonstrate the existence of the dispute and delineate its subject-matter’.22 In Georgia v Russia, Russia argued that the words ‘which is not settled by negotiation or by the procedures expressly provided for in this Convention’ in CERD Article 22 constituted twin preconditions that Georgia must satisfy before resorting to the International Court. The Court noted that the resort to negotiations fulfils three functions: ‘it gives notice to the respondent State that a dispute exists and delimits the scope of the dispute and its subject-matter’; ‘it encourages the Parties to attempt to settle their dispute by mutual agreement, thus avoiding recourse to binding third-party adjudication’; and it ‘performs an important function in indicating the limit of consent given by States’.23

At the provisional measures stage, the Court (by a vote of 8–7) had provisionally concluded that on the plain meaning of the compromissory clause, there was no requirement of formal negotiations or recourse to CERD dispute resolution procedures as preconditions to the jurisdiction of the Court, but that Article 22 did suggest that ‘some attempt should have been made by the claimant party to initiate, with the Respondent Party, discussions on issues that would fall under CERD’.24 At the jurisdiction stage, it reversed course, holding (by a vote of 10–6) that the ‘express choice of two modes of dispute settlement [in Article 22 CERD]…suggests an affirmative duty to resort to them prior to the seisin of the Court’.25 Where negotiations are commenced or attempted, the precondition is only satisfied if they have led to an impasse or otherwise failed.26 Although express reference to the treaty was not required,27 the negotiations must reflect the subject-matter of the dispute, which must concern the substantive obligations contained in the treaty in question.28 Negotiations prior to the existence of a dispute were of no legal relevance.29 The Court was not satisfied there had been genuine negotiations about matters falling under CERD during the relevant period.

Several of the judges criticized the methods of interpretation and resulting inflexibility of the majority’s position.30 The dissenting judges would have given greater weight to the ordinary meaning of the words ‘is not settled by negotiations’, as distinct from the common alternative ‘cannot be settled by negotiations’.

References(p. 697) (D)  General Jurisdiction Clauses: Article 36(2)

Article 36(2) of the Court’s Statute, referred to as the ‘optional clause’, provides for advance acceptance of the Court’s compulsory jurisdiction by way of unilateral dec-larations.31 These operate on a reciprocal basis in relation to any other state accepting the same obligation: ‘jurisdiction is conferred on the Court…to the extent to which the [declarations made] coincide in conferring it’.32 Other treaties may contain general jurisdiction clauses: for example UNCLOS Article 287(1)33 provides for states parties to declare their choice of procedure for dispute settlement from among four options. The earlier practice of adding a general jurisdiction clause in an optional additional protocol to a treaty is no longer in use.34

Reliance on the optional clause has been limited,35 with an increasing number of cases brought before the International Court on the basis of compromissory clauses and special agreements instead.36 Of the five permanent members of the Security Council only the UK still recognizes the Court’s jurisdiction under Article 36(2).37

(A)  Legal Interest

The existence of a legal interest on the part of a claimant is a question distinct from the existence of a dispute. In Northern Cameroons the Court treated the issue of legal interest as a matter of judicial propriety,38 but legally this is best treated as a species of admissibility, as some judges pointed out.39 Judge Wellington Koo even referred to the existence of a legal interest as ‘the indispensable basis of a justiciable dispute’.40

References(p. 698) A legal interest in the outcome of the case is also central to a third state request for permission to intervene pursuant to Article 62 of the Statute.41 It is for the state seeking to intervene to identify its interest, and show that it ‘may’ be affected by the decision in the case.42 Permission is at the Court’s discretion and has only been granted in three cases: to Nicaragua in Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras);43 to Equatorial Guinea in Cameroon v Nigeria;44 and most recently to Greece in Jurisdictional Immunities.45 In the latter case, the Court found Greece had a legal interest in the case because it might need to consider decisions of Greek courts arising from the Distomo massacre in 1944, in light of principles of state immunity, in order to decide aspects of the case between Germany and Italy. The permission for Greece to intervene, as a non-party, was limited to those questions.46

(B)  Necessary Third Parties: The Monetary Gold Rule

In some cases, it is not merely that a third state has a legal interest of a tangential kind, but that its legal interest is the very subject-matter of the claim or at least a necessary element in its determination. In such cases the claim is inadmissible unless the necessary third state is joined as a full party to the proceedings. Thus in Monetary Gold, Italy asserted a right to the Albanian gold which was in the hands of the three western allies, basing itself on an unliquidated claim for damages against Albania. The Court could have rejected the Italian argument on the ground that Albania’s proprietary rights in the gold prevailed, for the purposes of return of war booty, over subsequent in personam claims, and it is a pity that the case was not decided on that basis. Instead the Court held that the claim (brought by Italy) could not be decided in the absence of Albania, a necessary third party, and was inadmissible.47 The result was that the gold stayed on deposit until the various issues between Albania, Italy and the western allies were settled.

More recently, Monetary Gold has been both applied and distinguished. It was distinguished in Phosphate Lands in Nauru on the basis that the concurrent responsibility of the UK and New Zealand as (with Australia) the administering authority of the trust territory of Nauru did not prevent Nauru bringing an action for maladministration against Australia alone. Australia’s responsibility for breach of the trusteeship did not depend on any finding against the other two states which were at most inReferences(p. 699) pari delicto.48 It was applied in East Timor, where it was held that the lawfulness or otherwise of Australia’s recognition of Indonesia’s sovereignty over East Timor could not be determined without first deciding that Indonesia’s purported annexation of East Timor was unlawful.49 It is a measure of the uncertainty surrounding the principle that the successful parties (respectively Italy and Australia) in Monetary Gold and East Timor were merely fortuitous beneficiaries.50

(C)  Mootness

The Court may decline to hear the merits of a case if it determines that the application has been rendered without object as a result of events arising aft er it was filed. For example, in Nuclear Tests the Court held that there was no practical purpose to be served by proceeding with the claims because France had declared it would stop atmospheric testing in the Pacific, a declaration the Court guilefully converted into a commitment.51In Lockerbiethe US objected that Libya’s claims were moot, as they had been rendered without object by SC Resolutions 748 (1992) and 883 (1993), and a judgment would serve no practical purpose.52 The Court found the argument in the nature of a defence on the merits, rather than an objection of ‘an exclusively preliminary character’. A decision of inadmissibility would pre-determine the Court’s findings on whether Libya’s obligations under the Montreal Convention were incompatible with its obligations under the SC resolutions, and if so, on whether the resolutions prevailed.53

(D)  Extinctive Prescription54

An unreasonable lapse of time in presentation may bar an international claim, but international law lays down no time limit. Special agreements may exclude categories of claim on a temporal basis; otherwise the question is one for the tribunal.55 In Phosphate Lands the International Court rejected a preliminary objection based on delay in submission of the claim. The Court nevertheless recognized that delay might,References(p. 700) in particular circumstances, render a claim inadmissible.56 Conceivably a claim by a state could be denied because of the difficulty the respondent has in establishing the facts, but where there is no irreparable disadvantage to the respondent, tribunals will be reluctant to allow mere lapse of time to bar claims, given the conditions under which interstate relations are conducted. Thus in the Cayuga Indians Claim the respondent was held not to be prejudiced by significant delay on the part of the UK, which claimed on behalf of a protected minority.57

Indeed Article 45 of the ILC Articles on State Responsibility, which refers only to waiver or acquiescence in the loss of a claim, may be read as denying the preclusive effect as delay as such. According to the commentary, Article 45

emphasizes conduct of the State, which could include, where applicable, unreasonable delay, as the determining criterion for the lapse of the claim. Mere lapse of time without a claim being resolved is not, as such, enough to amount to acquiescence, in particular where the injured State does everything it can reasonably do to maintain its claim.58

A number of cases which are cited as instances of prescription are actually based on lapse of time as evidence of acquiescence or waiver.59

(E)  Waiver60

Abandonment of claims may occur by unilateral acts of waiver or acquiescence implied from conduct, or by agreement. Given that in cases of diplomatic protection the state is asserting its own rights, it may compromise or release the claim, leaving the individual or corporation concerned without an international remedy.61Conversely the waiver of a claim by a national does not bind the government. Hence the Calvo clause, by which aliens are called on to waive diplomatic protection at the time of entry, is legally ineffective.62 The application of these principles to the field of investment arbitration is an open question.63

References(p. 701) (F)  Other Grounds of Inadmissibility

Other grounds exist which deserve brief notice:

1. 
   

   (1)  Conceivably a failure to comply with the rules of court of the tribunal in making an application may provide a ground for an objection as to admissibility, although tribunals are reluctant to give much significance to matters of form.64

   
   
2. 
   

   (2)  Analogously to the local remedies rule, it may happen that a respondent can establish that adequate remedies have been or ought to be obtained in another tribunal, whether national or international. Whether there is any international equivalent to the national law doctrines of lis alibi pendensand forum non conveniensis controversial.65

   
   
3. 
   

   (3)  There may be a residue of instances in which questions of inadmissibility and ‘substantive’ issues are difficult to distinguish. This is the case with the so-called ‘clean hands’ doctrine, according to which a claimant’s involvement in activity unlawful under either municipal or international law may bar the claim.66

The heads of inadmissibility dealt with above are generally applicable to international claims, whatever their character. By contrast the nationality of claims and exhaustion of local remedies rules were specifically developed in the context of diplomatic protection. In 2006 they were restated by the ILC in a text aspects of which reflect elements of progressive development.67

References(p. 702) (A)  Nationality of Claims68