CYIL vol. 8 (2017)

MILAN LIPOVSKÝ CYIL 8 ȍ2017Ȏ Due to the equality or a very tight decision margin, the issue of existence of a dispute was clearly something controversial. Especially in the proceedings against the United Kingdom, where the President’s vote decided in the situation of equality. The existence of a dispute, an issue seemingly purely procedural, thus gained importance in the eyes of many. One could naively assume that existence of a dispute is an automatic thing, based solely on the fact that one of the parties raised a complaint against the other. However, that is not how the ICJ system works. First of all, in order for the Court’s jurisdiction to be established, both parties need to show their will to accept it. There are various ways how to do it, all of which are based on the consent of both parties to the dispute. Article 36 of the Statute states that “[t] he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. ” The wording is a bit odd because it has not been changed after the parties decided not to include obligatory jurisdiction in the Charter. Thus under article 36 of the Statute the parties may for example ad hoc conclude a so-called special agreement (compromis), 10 give their consent in advance in international treaties 11 or use the optional clause in article 36 (2) of the Statute 12 by which the state parties “ may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes. ” The most detailed provision that deals with the jurisdictional basis is thus article 36 (2) of the Statute. In full it provides that: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; d) the nature or extent of the reparation to be made for the breach of an international obligation.” These optional clauses function as advance acceptance of the Court’s jurisdiction, provided that the respondent in a particular case has reciprocally declared such acceptance of the Court’s jurisdiction as well. The original idea was that the number of these declarations would rise. Unfortunately the expectations were quite exaggerated. 13 Quite contrarily some States have actually first declared acceptance of the Court’s jurisdiction and then, after losing disputes, withdrew their declarations. 14 If the declaration is withdrawn, only jurisdiction over future applications is evaded. As a result, the special agreements and jurisdictional clauses in other international treaties are used quite often. 10 Which is, to put it simply, an international treaty specifically negotiated to establish the Court’s jurisdiction in a particular case. 11 The ICJ lists examples of international treaties containing these jurisdictional (or compromisory) clauses on page http://www.icj-cij.org/en/treaties. 12 For detail and for other special examples see for example: CRAWFORD, J,. Brownlie’s Principles of Public International Law . 8th ed. Oxford: Oxford University Press, 2012, p. 725-728 13 Ibid. , p. 727. 14 KACZOROWSKA, A,. Public International Law . 3rd ed. Routledge-Cavendish, 2005, p. 388.

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