| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.2. | Consent of States |
¤
Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6
[p. 62 D.O. Shahabuddeen] It is difficult to see how a right to make
an application without the consent of the respondent can co-exist with the right
of a State not to have its case determined without its consent if this means
that, at the stage when it appears before the Court, it should be there because
it consented to be there, even if it did so reluctantly. Conceivably, it may be
prepared to be there on the basis of the case being submitted jointly, but not
unilaterally; it may have legitimate concerns in these respects. It is not for
the Court to assess the sufficiency of the concerns; the judge of that is the
State involved. It exercises its judgment by way of consenting to seisin being
effected in a particular manner. Consent may be impliedly given, but it is
always required. For the reasons offered above, even forum prorogatum cases
are not true exceptions.
In sum, the role of consent is not the negative one of excluding a right of
unilateral application which would exist once jurisdiction has been accepted,
but the positive one of creating a right of unilateral application which could
not otherwise exist.
[pp. 70-71 D.O. Koroma] From a jurisdictional point of view,
therefore, and for this stage of the dispute, the crucially important issue was
that of consent: whether consent was granted conferring jurisdiction on the
Court, on what conditions, and whether those conditions were met by Qatar's
unilateral Application. Both legal principles and the fundamental jurisprudence
of the Court have always founded jurisdiction upon the clear and unambiguous
consent of the parties to a dispute. While the Court has tended to refine this
principle to allow for the intention of the parties to be determined in
particular circumstances, it has remained constant that clear and indubitable
consent remains the basis for the assumption of jurisdiction. Not only must such
consent be clear and unambiguous, it only acquires its validity if and when the
procedure or the conditions under which it was granted have been met. In my
view, the unilateral Application of Qatar did not meet the requirements laid
down in both the 1987 Agreement and the 1990 Doha Minutes for the Court to be in
a position to assume jurisdiction in this matter.
