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World Court Digest

III. The International Court of Justice
3.1. General Questions

¤ Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6

[p. 51-52 D.O. Shahabuddeen] The limited nature of the Court's Judgment of 1 July 1994 has to be kept in view. The main question was one of jurisdiction. The Court decided certain issues having a bearing on jurisdiction; it did not decide the question of jurisdiction itself (see paragraph 23 of today's Judgment). What it decided was "to afford the Parties the opportunity", in the light of its decision on those issues, "to submit to the Court the whole of the dispute" (I.C.J. Reports 1994, p. 127, para. 41(3)).
Although, as I then stated, my own "preference would have been for the issue of jurisdiction to be fulIy decided at [that] stage" (ibid., p. 129), I would not dispute the right of the Court to proceed as it did. True, there is a "principle that it is the duty of the Court ... to reply to the questions as stated in the final submissions of the parties ..." (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports 1950, p. 402). But the principle, I apprehend, is not violated where, as in this phase of the case, the Court had not as yet concluded its determination; the Court introduced an intermediate procedure prior to making its final decision.
Nor, despite an appearance of novelty, is the competence of the Court to introduce that intermediate procedure open to serious question. In the Free Zones of Upper Savoy and the District of Gex, the Court, being duly seised of a matter and having heard arguments on the interpretation of a treaty provision, gave "indications" of its reaction to the question of interpretation, and then allowed the parties a period of time to come to a consensual solution of the main problem in the light and with the benefit of those "indications". When they failed, it resumed consideration of the matter, and formally decided the question of interpretation along the lines previously indicated (see P.C.I.J., Series A, No. 22, pp. 12, 13, 16-21; P.C.I.J., Series A, No. 24; and P.C.I.J., Series A/B, No. 46, pp. 98, 102-105, 136, 141, 149, 152, 171). The distinguishing circumstance that the "indications" were given and the deferment of a final decision made at the request of the parties does not obscure a recognition by the Court that it may adopt a procedure designed to enable the parties themselves to find a solution to the particular problem before it in the light of its views on introductory issues.

As was pointed out by Sir Hersch Lauterpacht, the Court is "debarred from directly acting as an important instrument of peace" (Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, p. 5); it is a court of justice, and must remain within the limits of such a body. But, as he also noted in the opening sentence of his major work, "the primary purpose of the ... Court ... lies in its function as one of the instruments for securing peace in so far as this aim can be achieved through law" (ibid., p. 3). As it was put by President Basdevant, "It is asked of the Court that it should contribute to peace by deciding the disputes submitted to it" (I.C.J. Pleadings, Reparation for Injuries Suffered in the Service of the United Nations, p. 46; and see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, I.C.J. Reports 1986, p. 153, Judge Nagendra Singh, separate opinion). The intermediate procedure introduced in this case, though obviously to be resorted to sparingly and in special circumstances, did not exceed the function of a court charged with the mission of applying the rule of law for the judicial settlement of international disputes on a consensual jurisdictional basis.