Cases relating to the law of the sea: Issues of jurisdiction of the International Court of Justice

Conclusions

Given the considerable number of cases relating to the LOS that are regularly brought before the ICJ, jurisdictional issues remain a pertinent topic in the legal literature and legal policy of States. The approaches used by international judicial bodies to establish jurisdiction often determine not only the outcome of a given case, but also the degree of States' confidence in such tribunals and hence their political will to refer disputes thereto. The ICJ holds a prominent place among the plethora of dispute settlement bodies. By thoroughly examining its jurisdiction when considering each specific case, the ICJ contributes to the practical development of different jurisdictional bases set out in Art. 36 of the Statute. This study also demonstrates that the ICJ generally strives to maintain consistency of its jurisprudence, treating issues of ascertaining consent of a State to its jurisdiction with great caution both in the LOS cases and beyond.

When interpreting special agreements relevant to the LOS litigations, the ICJ analyzed in detail a number of corresponding factors including specific provisions of a document used as a jurisdictional basis, along with the circumstances of drafting such a document. The use of special agreements has decreased, which could be explained by their de facto effectiveness mainly in disputes of territorial nature with the common interest of the relevant parties to submit such disputes to the Court, as well as by the uncertainties in the legal nature of the document in question (whether it constitutes a special agreement) and also potential discrepancies in the Parties' legal positions regarding the subject-matter of the dispute.

The number of applications to the Court in accordance with jurisdictional clauses of multilateral treaties has risen. Nevertheless, their scope of application is likewise limited due to a number of factors: only a handful of existing jurisdictional clauses (predominantly contained in general treaties rather than specialized LOS agreements) were invoked in the ICJ proceedings, and no new ones have been included into treaties for over ten years; States' reservations to treaties concerning jurisdictional provisions; attempts to “stretch” the jurisdictional clauses to situations that are only indirectly related to the subject-matter of a relevant treaty; overall instability of the system of jurisdictional clauses. As to the interpretation of jurisdictional clauses, the ICJ practice demonstrates that the principle of effectiveness played an important role in some of the LOS cases.

As demonstrated by the LOS cases analyzed in the study, a number of factors appear to reduce the effectiveness of Art. 36 (2) of the ICJ Statute, namely a high level of instability of the “Optional clause” system due to simplicity of procedure for changing and withdrawing unilateral declarations, the practice of including various conditions therein, as well as tactical advantages of remaining outside this system. Therefore, about a third of the UN Member States (including one Permanent Member of the UN Security Council) have joined the “Optional clause” system, and most of them have limited the scope of disputes capable of being referred to the ICJ unilaterally. This complicates the entire system of “Optional clause” and the jurisdictional phase of the relevant proceedings due to, inter alia, difficulties of application of inventive conditions contained in some unilateral declarations. In interpreting “Optional clause” declarations, the ICJ applies the law of treaties rules only insofar as they do not contradict the special legal nature of such declarations, giving priority to the intention of a declaring State, as well as to the effect it sought to achieve by conditions inserted therein.

The analysis also shows that each jurisdictional basis set forth in Art. 36 of the Statute of the ICJ has its advantages and disadvantages, but is generally aimed at fulfilling its own functions, and is effective in different circumstances and acceptable to States in different situations. The Statute of the ICJ undoubtedly takes into account the political juncture, which existed in 1943-1945, being far from readiness of all its signatories to unconditionally accept the jurisdiction of the principal judicial body of the UN. While there have been repeated calls for the universal and compulsory jurisdiction of the Court since its establishment, this does not seem realistic today and in the near future. However, the existing variety of jurisdictional bases enables States to choose an acceptable degree of consent to the Court's jurisdiction and to use the available judicial mechanisms to support their national interests. While a number of practical procedural problems continue to appear in the Court's activities due to certain factors considered, the Court strives to handle issues of establishing its jurisdiction with caution, which might ultimately encourage States' confidence in this judicial mechanism for resolving LOS cases.

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