| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.1. | General Rules |
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Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6
[pp. 23-24] 43. The Court has still to examine one other argument
put forward by Bahrain to contest its jurisdiction in this case. According to
Bahrain even if the Doha Minutes were to be interpreted as not ruling out
unilateral seisin, that would still not authorize one of the Parties to seise
the Court by way of an Application. Bahrain argues, in effect, that seisin is
not merely a procedural matter but a question of jurisdiction; that consent to
unilateral seisin is subject to the same conditions as consent to judicial
settlement and must therefore be unequivocal and indisputable; and that, where
the texts are silent, joint seisin must by default be the only solution. Qatar,
for its part, distinguishes between seisin and jurisdiction and explains that,
while the wishes of the Parties, as expressed in the agreements in force, are of
decisive importance for the purpose of establishing jurisdiction, the validity
of the seisin must on the other hand be evaluated essentially from the
standpoint of the Statute and the Rules of Court, subject to any special
provision to which the Parties may have agreed.
The Court does not consider it necessary to dwell at length on the links
which exist between jurisdiction and seisin. It is true that, as an act
instituting proceedings, seisin is a procedural step independent of the basis of
jurisdiction invoked and, as such, is governed by the Statute and the Rules of
Court. However, the Court is unable to entertain a case so long as the relevant
basis of jurisdiction has not been supplemented by the necessary act of seisin:
from this point of view, the question of whether the Court was validly seised
appears to be a question of jurisdiction. There is no doubt that the Court's
jurisdiction can only be established on the basis of the will of the Parties, as
evidenced by the relevant texts. But in interpreting the text of the Doha
Minutes, the Court has reached the conclusion that it allows a unilateral
seisin. Once the Court has been validly seised, both Parties are bound by the
procedural consequences which the Statute and the Rules make applicable to the
method of seisin employed. It is therefore not necessary to examine Bahrain's
arguments based on the discretionary nature of the choice of a method of seisin
or the drawbacks for Bahrain of being placed in the position of respondent.
[pp. 60-61 D.O. Shahabuddeen] It is necessary to bear in mind the
distinction between jurisdiction and seisin. The use of the correct method of
seisin is a condition-precedent to the exercise of jurisdiction. If seisin is
not properly effected in a case that is sought to be brought, the agreed
jurisdiction becomes unavailable to the Court, with the result that, in that
particular case, the Court has no jurisdiction (see Aegean Sea Continental
Shelf Judgment, I.C.J. Reports 1978, p. 45, para. 109; and 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), Judgment, I.C.J. Reports 1985,
p. 216, para. 43). But, despite this functional link between the concepts,
it remains true that seisin is not jurisdiction. Thus, consent to jurisdiction
does not by itself include consent to seisin being effected by any particular
method.
This is so even in a case in which, the agreement to litigate being silent
on seisin, the parties proceed to effect seisin jointly; in such a case, they
are acting not pursuant to any right to act jointly which has been conferred by
the giving of consent to jurisdiction (such a right is scarcely needed), but in
exercise of their normal freedom to act as they both see fit. This freedom is
exercised through the consensual act by which the case is jointly submitted; the
mutual consents involved are distinct from consent to jurisdiction. A right of
unilateral application likewise depends on consent other than consent to
jurisdiction, even if, as is likely, consent is in both respects given in the
same instrument.
