Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

III. The International Court of Justice
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.