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(3) Jurisdiction and Admissibility (Difference between jurisdiction and…
(3) Jurisdiction and Admissibility
state consent
Status of Eastern Carelia Case, PCIJ, Series B, No 5
legal qn: if PCIJ was competent to hand down advisory opinion? was there state consent to jurisdiction?
ct discussed sovereignty, consent, jurisdiction -> state has used sovereignty to express consent
held: only if that consent has been given, that ct will have jurisdiction
Starting pt of jurisdiction.
does the ct have jurisdiction?
parties [states] at issue have given their
consent
to the ct exercising its jurisdiction.
Difference between jurisdiction and admissibility
a working definition must be established between J and A
if J and A have given consent for ICJ to hear case under its jurisdiction = ICJ has jurisdiction
true definition of admissibility: "any other reasons which might exist as to why the ct should not hear the case" [a working definition]
it is not state sov, and then consent
1. Does ct have juris?
2. Is the case somehow inadmissible?
Bankovic case
State A sues state B. State B is happy for issue to be adjudicated by a ct. but sometimes B does not want case to be adjudicated by a ct. this is when B will say "the ct has no jurisdiction. not going to comment about substantive issues. We demand the the ct contemplate if it has juris first" - this is how many cases end up
Many cases never make it beyond jurisdictional stage
State b can be said to have made a jurisdictional plea: "we think the ct does not have jurisdiction"
G Fitzmaurice: ‘[A]n unsuccessful jurisdictional plea leaves open the possibility that a finding on the ultimate merits may still be excluded through a decision given against the substantive admissibility of the claim.’
Fitzmaurice summarizes that we begin by looking at jurisdiction: if the ct decides it does have jurisdiction, it moves on to the merits.
Significance: even though the ct discusses the merits, there is a chance that state B argues "B loses on juris point, but another reason why the ct cannot hear it, is because the case is inadmissible for other reasons".
Jurisdiction
2 egs of jurisdictional pleas
Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment ICJ Rep 2017
whether a case falls within the Article 36(2) declarations.
“the Republic of Kenya . . . accepts, in conformity with paragraph 2 of Article 36 of the Statute of the International Court of Justice until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special Agreement, and on the basis and condition of reciprocity, the jurisdiction over all disputes arising after 12th December, 1963, with regard to situations or facts subsequent to that date, other than: 1. Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.”
case is still ongoing
Som took ken to c in relation to maritime boundaries. [not important: som wants ICJ to draw maritime boundaries , kenya resists this) without commenting on merits of the claim kenya says the ct has no jurisdiction. Kenya demands hearing on jurisdiction.
did states consent to jurisdiction (let ICJ hear the case?). this is done by A36(2) declaration
did kenya give ct general jurisdiction over this case? YES. A36(2).
Contentious is 36(2)1: this is called a reservation.
If it falls within 36(2), ct has juris. If it falls into reservation, it has no jurisdiction.
Facts of case: question of how the question of agreement was to be interpreted. The kenyan interpretation lost.
Ct decided it had jurisdiction.
Now, the case goes to its merits.
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race (Marshall Islands v UK), Preliminary Objections, Judgment, ICJ Rep 2016
Unlike somalia kenya case, this never made it past jurisdiction. shows how important jurisdiction is.
broader sigfig: ITL cts itchy rs w nuclear weapons. i.e. nuke tests case, was found inadmissible. but there is also obligation of ITL ct to cessate nuclear weapons
facts: MI sued UK. It had also sued india, paki and all of the other nuclear powers. It was only against uk paki india that had signed 36 declaration. The others (i.e. US, CHINA, NORTH KOREA) did not sign. In those, the ct did not even arrange for jurisd hearing
held: Ct found it had no jurisdiction over the latter.
p 26: “In its first preliminary objection, the United Kingdom argues that, on the date of the filing of the Marshall Islands’ Application, there was no “justiciable dispute” between the Marshall Islands and the United Kingdom. Consequently, it considers that the Court lacks jurisdiction to address all of the Marshall Islands’ claims and/or that those claims are inadmissible.” [it seems that the UK had rolled jurisdiction and admissibility into 1 argument (for strategic reasons? Or bc counsel in uk didn't know the difference)]
WAS THERE A JUSTICIABLE DISPUTE? [different argument from somalia dispute] - uk argues "is there even a dispute/ disagreement in the first place!" (a very introductory qn) "can it even be adjudicated by the ct?"
Uk argues it is a theoretical kind of claim
Most effective piece of evidence that can be shown to the ct is those coming from the UN. Ie in UNGA, marshall islands say "all state w nuclear weapons should negotiate and stop nuclear arms race" … its not that uk openly argued against this.
Ct can conclude: there is a dispute. Ct didn't want to touch the case however, it agreed with the uk.
A38 (sources of international law): conventions, customs -> ct makes the obvious but sophisticated point that their job is to decide disputes brought before them AKA if there is no dispute, they have nothing to decide.
“Under Article 38 of the Statute, the function of the Court is to decide in accordance with international law disputes that States submit to it. Under Article 36, paragraph 2, of the Statute, the Court has jurisdiction in all “legal disputes” that may arise between States parties to the Statute having made a declaration in accordance with that provision. The existence of a dispute between the Parties is thus a condition of the Court’s jurisdiction"
Ct: the very first qn asked should be is there even any dispute. The ct was able to avoid hearing the case ..
Admissibility
Why it would be inappropriate for ct to hear a claim.
Monetary Gold (Italy v France, UK, and US) ICJ Rep 1954 p 19
Concerned Italy’s right to Albanian gold which was in the hands of the three western allies
When a third State’s legal interest in the proceeding is the very subject-matter of the claim or at least a necessary element in its deteminatio, the claim is inadmissible. [monetary gold doctrine]
May be admissible, however, if the third State is joined as a full party to the proceedings.
In principle: the ct had jurisdiction. But in finding it had jurisdiction, it found the case was inadmissible, that was the end of the matter. It was an early post war case.
Had gold which italy had a right to against albania
But all the gold was physically in the hands of uk us
Italy had sued FUU as it wanted its albanian gold. The case made by 3 was that it would be inapp for ct to hear the case: albania was not represented in this manner.
Held: there was a third country "whose legal interest in proceeding…" -> this has to do w sovereignty + consent of albania (because its not represented).
Philip Morris Asia Limited (Hong Kong) v Australia, PCA Case No. 2012–12, Award on Jurisdiction and Admissibility, esp on ‘abuse of right’ paras 535–588 (typo in Unit Guide), available now on ILR: (2015) 169 ILR 422.
RE: plain packaging of cigarettes
PM sued Aus under a BIT. This case is not one under ICJ, it is from ISDS. It was clear the tribunal had jurisidction under the claim. Aus argued under jurisdiction that the case was otherwise inadmissible.
p 554: ‘the initiation of a treaty-based investor–State arbitration constitutes an abuse of rights (or an abuse of process, the rights abused being procedural in nature) when an investor has changed its corporate structure to gain the protection of an investment treaty at a point in time when a specific dispute was foreseeable’.
On the facts, there was such an abuse of right: paras 555–87
‘Accordingly, the claims raised in this arbitration are inadmissible and the Tribunal is precluded from exercising jurisdiction over the dispute.’: para 588
intro / objectives
Cts and tribunals unhelpfully use these concepts interchangeability
Aims: distinguish between concept of juris and admissibility
Some courts like ECHR + other cts /tribunals: don't rly distinguish between the 2