| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.1. | General Rules |
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Border and Transborder Armed Actions
Nicaragua/Honduras),
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 69
[pp. 75-76] The Parties have devoted some argument to a question
defined by them as that of the burden of proof: whether it is for Nicaragua to
show the existence of jurisdiction for the Court to deal with its claims, or for
Honduras to establish the absence of such jurisdiction. Each of them has cited,
in support of its contention, the Court's dictum that "it is the litigant
seeking to establish a fact who bears the burden of proving it" (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1984, p. 437, para. 101).
The existence of jurisdiction of the Court in a given case is however not a
question of fact, but a question of law to be resolved in the light of the
relevant facts. The determination of the facts may raise questions of proof.
However the facts in the present case - the existence of the Parties'
declarations under Article 36 of the Statute, the signature and ratification of
the Pact of Bogotá, etc. - are not in dispute; the issue is, what are the
legal effects to be attached to them? The question is whether in case of doubt
the Court is to be deemed to have jurisdiction or not. This question has already
been considered by the Permanent Court of International Justice in the case
concerning the Factory at Chorzów, Jurisdiction, when it
observed:
"It has been argued repeatedly in the course of the present proceedings
that in case of doubt the Court should decline jurisdiction. It is true that the
Court's jurisdiction is always a limited one, existing only in so far as States
have accepted it; consequently, the Court will, in the event of an objection -
or when it has automatically to consider the question - only affirm its
jurisdiction provided that the force of the arguments militating in favour of it
is preponderant. The fact that weighty arguments can be advanced to support the
contention that it has no jurisdiction cannot of itself create a doubt
calculated to upset its jurisdiction. When considering whether it has
jurisdiction or not, the Court's aim is always to ascertain whether an intention
on the part of the Parties exists to confer jurisdiction upon it." (P.C.I.J.,
Series A, No. 9, p. 32.)
The Court will therefore in this case have to consider whether the force of
the arguments militating in favour of jurisdiction is preponderant, and to "ascertain
whether an intention on the part of the Parties exists to confer jurisdiction
upon it".
[pp. 124-125 S.O. Oda] In conclusion, I would like to add the
following comments. It is certainly possible for States jointly to assume the
obligation to accept the Court's jurisdiction over certain types of disputes
under Article 36, paragraph 1, of the Statute, and they can also jointly declare
their acceptance of the Court's jurisdiction over legal disputes, as provided
for in Article 36, paragraph 2. In cases of general dispute-settlement treaties,
the acceptance of jurisdiction over legal disputes in the framework of Article
36, paragraph 1, of the Statute, can be equated, in effect, with the acceptance
of jurisdiction under Article 36, paragraph 2. Such an obligation must, however,
be assumed in an unequivocal manner. For example, as previously stated, the 1949
Revised General Act for the Pacific Settlement of International Disputes
provides that disputes "shall be submitted for decision [to the Court]"
and the 1957 European Convention for the Pacific Settlement of Disputes states
that the parties "shall submit [disputes] to the judgment of the... Court".
It cannot be denied that the parties to those two treaties accept the
Court's jurisdiction within the limits of Article 36, paragraph 2, of the
Statute, though it remains to be seen whether the instruments constituting a
declaration of acceptance of the Court's jurisdiction should not have been
deposited under Article 36, paragraph 4, of the Statute, or whether the simple
registration of the treaties in question with the United Nations Secretariat,
pursuant to Article 102 of the United Nations Charter, might be looked upon as a
substitute for the requirement of that paragraph of the Statute.
I hesitate to assimilate the Pact of Bogotá to those two treaties for
the following reasons: firstly, as I explained above, the existence of Article
XXXII complicates the Pact's system of peaceful settlement because this
particular Article, by its ambiguous content, casts doubt upon the intention of
the parties to accept the Court's compulsory jurisdiction. Secondly, unlike the
two other treaties of a general dispute-settlement nature, the Pact of Bogotá,
although providing for a general obligation to settle international disputes,
does not specify the use of any particular procedure, except for resort to the
Court in certain cases, and thus the choice of peaceful settlement procedures is
to be made jointly by the parties. Thirdly, and more significantly, it will be
clearly apparent from what has been stated above that no delegate at the Bogotá
Conference ever expressed his country's readiness to confer compulsory
jurisdiction on the Court by virtue of the forthcoming Treaty, although some
delegates were aware of the possible implication of the text to be adopted. It
is accordingly true to say that the present text of the Pact emerged without any
clear indication of the parties' real intention.
The Permanent Court of International Justice, as quoted in the Judgment
(para. 16), once mentioned
"the fact that [the Court's] jurisdiction is limited, that it is
invariably based on the consent of the respondent and only exists in so far as
this consent has been given ..." (case concerning Mavrommatis Palestine
Concessions, 1924, P.C.I.J., Series A, No. 2, p. 16).
It also stated:
"When considering whether it has jurisdiction or not, the Court's aim
is always to ascertain whether an intention on the part of the Parties exists to
confer jurisdiction upon it." (Case concerning the Factory at Chorzów,
Jurisdiction, Judgment No. 8,1927, P.C.I.J., Series A, No. 9, p. 32.)
The present Court accepted the validity of this principle in the Interpretation
of Peace Treaties case, in which it stated that "[t]he consent of
States, parties to a dispute, is the basis of the Court's jurisdiction in
contentious cases" (I.C.J. Reports 1950, p. 71). The Court, in the
case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question,
Judgment, I.C.J. Reports 1954, p. 32), referred to "a well-established
principle of international law embodied in the Court's Statute, namely, that the
Court can only exercise jurisdiction over a State with its consent". More
recently, the fundamental principle mentioned in the 1950 case was reiterated in
the Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (I.C.J. Reports 1985, p.
216).
In sum, one cannot lay too much stress upon the paramount importance of the
expression of the acceptance of the Court's jurisdiction, which is invariably
required for the Court to entertain a case, as the first and critical task of
the Court is always to ascertain the intention of the Parties. I doubt whether
this particular point has been given all the weight due to it.
