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Peart, Simon --- "Regulating Jurisdictional Competition Between the International Court of Justice and the International Criminal Court" [2006] NZLawStuJl 4; (2006) 1 NZLSJ 21

Last Updated: 24 October 2012

REGULATING JURISDICTIONAL COMPETITION BETWEEN THE INTERNATIONAL COURT OF JUSTICE AND

^{THE INTERNATIONAL CRIMINAL COURT1}

SIMON PEART^*

A: Introduction

The proliferation of international courts and tribunals in recent times has raised the issue of how jurisdictional overlap between international courts should be addressed. There are sound policy reasons why jurisdictional competition should be avoided but it is often not clear if, and how, jurisdictional competition can be mitigated. In this article I will examine a particular instance of jurisdictional competition which, while it has not as yet arisen, may be expected to in the future: competition between the International Court of Justice (ICJ) and the International Criminal Court (ICC).

The ICJ is an international court established as the principal judicial organ of the United Nations. The ICJ is empowered to determine international legal disputes referred to it by states party to its statute. In contrast to the various other international courts of specific subject- matter jurisdiction (for example the International Tribunal for the Law of the Sea) the ICJ exercises a broad subject-matter jurisdiction and can determine any dispute between states concerning international legal issues.

The ICC is a court of very recent provenance – its constitutive instrument, the Rome Statute, only entered into force on 1 July 2002. It was established in order to try individuals charged with international crimes. The parties to the Statute intend that the establishment of the Court will eliminate the need for region-specific criminal courts, such as

¹ This article is an adaptation of the first chapter of my Honours dissertation, entitled

^{‘Conflict of Public International Laws – Regulation of Jurisdictional Competition}

Between the International Court of Justice and the International Criminal Court’; submitted in October 2005 to the Faculty of Law, University of Otago. Many thanks are due to my supervisor Associate Professor Kevin Dawkins.

^{* LLB (Hons) BA, University of Otago.}

22 The New Zealand Law Students’ Journal (2006) 1 NZLSJ

the International Criminal Tribunals for Rwanda and the Former Yugoslavia, and institute a single coherent system of international criminal justice. As a new and innovative Court, and one with a potentially controversial objective, the establishment of the ICC raises a number of legal issues that will have to be determined in the near future. There is potential for those issues to be raised in the forum of the ICJ. This article contends that they should not.

The ICJ and the ICC exercise fundamentally different jurisdictions as only states have standing before the ICJ whereas only individuals have standing before the ICC.² Nevertheless, given the opposition that the ICC has experienced from many states in the international order and the proprietary attitude that most states take towards their nationals, it is probable that at some point the jurisdiction of the ICJ and the ICC will come into conflict. This will arise where two states dispute the exercise of jurisdiction by the ICC over a national of one of those states, and seek to have the dispute determined by the ICJ. As the effective functioning of the ICC depends upon cooperation from the states parties to the Rome Statute, this form of jurisdictional competition may seriously undermine its functions. From the point of view of the ICC, therefore, it is desirable that the ICJ refrain from ruling on matters that fall within the jurisdiction of the ICC.

Over time the ICJ has developed forum selection principles that serve as the primary mechanism for the regulation of jurisdictional competition between the ICJ and other dispute settlement bodies. This article outlines these principles and discusses their application to disputes concerning proceedings before the ICC. I note at the outset that this discussion explores only one potential avenue of jurisdiction regulation between the ICJ and the ICC. Other jurisdiction regulating norms such as electa una via, lis alibi pendens and res judicata may also serve as a means of preventing jurisdictional competition between the two Courts but are beyond the scope of this article.

² With the exceptions of articles 18 and 19 of the Rome Statute, which allow a state to challenge the jurisdiction of the Court on certain limited bases and article 119, which provides for dispute settlement.

Jurisdictional Competition between the ICC and ICJ 23

1. How Jurisdictional Competition Arises

Certain factual conditions must be satisfied in order for jurisdictional competition to arise between the ICJ and the ICC. The most straightforward example is where state A is exercising custody over a national of state B, who has been indicted by the ICC for crimes contrary to the Rome Statute. State A (the custodial state) is a party to the Rome Statute. State B (the state of nationality) denies the jurisdiction of the ICC over its national. States only have a very limited power under the Rome Statute to challenge the jurisdiction of the ICC. So even if state B were willing to appear before the ICC,³ its ability to contest the exercise of jurisdiction would be minimal. Consequently, state B initiates proceedings in the ICJ, the only alternative forum, seeking to prevent state A from delivering custody over the accused to the ICC. In so doing, state B is exercising its right of diplomatic protection.⁴

The jurisdiction of the ICJ can be activated in a number of ways under article 36 of the Court’s Statute. Under article 36(1), the Court may exercise jurisdiction over disputes referred to it by special agreement, or through compromissory clauses contained in treaties between states. Under article 36(2), the Court may exercise jurisdiction over states that have deposited declarations accepting the compulsory jurisdiction of the Court (the optional clause). In order for jurisdictional competition to arise, the ICJ must be able to exercise jurisdiction on one of these bases. Once jurisdiction is prima facie established, the ICJ is faced with a situation in which it is asked to rule on a matter that either has been, currently is, or will be the subject of proceedings before the ICC.

³ And if state B is not a party to the Rome Statute then doubtless it will not be willing to have its interests determined by a court, the establishment of which it has not consented to.

^{4 See article 1 of the International Law Commission’s Draft Articles on Diplomatic}

Protection, which provides that “diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a state adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another state”. (Report of the International Law Commission on the Work of its 54^th Session, UN Doc. A/57/10, 2002, p. 167. See also The Mavrommatis Palestine Concessions (Greece v Great Britain) 1924 PCIJ (Ser. A) No. 2, p. 12.

2. Categorisation of Disputes

The state of nationality may wish to raise any one of a number of objections to the exercise of jurisdiction by the ICC. The ICC has not heard any cases and so, to date, no answers have been given to the multitude of possible objections posited by scholars since the establishment of the Court. It would be impossible to canvas every one of these questions, but categories of objections to ICC jurisdiction can be identified. The unifying theme common to all these forms of dispute is that they are all directed at the right of the ICC to exercise jurisdiction over a national of one of the disputing states.

The first category can be termed “pre-jurisdictional” disputes. That is, disputes that allege the inability of the Court to exercise jurisdiction based upon the application of international instruments or legal concepts not provided for in the text of the Rome Statute. These kinds of disputes are logically prior to the legal requirements for jurisdiction and admissibility provided for in the Rome Statute, for example, challenges to the very legitimacy of the Court itself,⁵ conflicts between the Rome Statute and other international instruments such as bilateral immunity agreements,⁶ and the application of Status of Forces Agreements.⁷

The second category concerns disputes as to jurisdiction and admissibility provided for in the Rome Statute, for example, questions as to the legal interpretation and effect of the jurisdiction requirements

⁵ Madeline Morris, ‘High Crimes and Misconceptions: the ICC and Non-party States’ (2001) 64 Law and Contemporary Problems 13; Madeline Morris, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-party States’ (2000) 6 ILSA Journal of International & Comparative Law 363; Michael P. Scharf, ‘The ICC’s Jurisdiction over the Nationals of Non-party States: a Critique of the U.S. Position’ (2001) 64 Law and Contemporary Problems 67; Lee A. Casey, David B. Rivkin Jr., ‘The Limits of Legitimacy: the Rome Statute’s Unlawful Application to Non-state Parties’ (2003) 44 Virginia Journal of International Law 63.

^{6 Human Rights Watch Bilateral Immunity Agreements (20 June 2003) available at}

http://www.hrw.org/campaigns/icc/us.htm (last visited: 11 October 2005).

^{7 Dominic McGoldrick ‘Political and Legal Responses to the ICC’ in Dominic}

McGoldrick, Peter Rowe, Eric Donnelly (eds) The Permanent International Criminal Court: Legal and Policy Issues (2004), pp. 423-433.

under article 12,⁸ questions of admissibility under article 17, including the compatibility of amnesties with the Rome Statute,⁹ and the legal effect of Security Council deferrals under article 16.¹⁰

The third category covers disputes regarding the substantive criminal provisions of the Rome Statute, specifically disputes as to the legal interpretation of the criminal prohibitions in articles 5-8,¹¹ and factual disputes as to whether acts have taken place capable of falling within the terms of those prohibitions.

3. Desirability of Excluding ICJ Jurisdiction

There are a number of reasons why it is desirable to restrict the jurisdiction of the ICJ in regards to the ICC. At the most general level, a legal system cannot operate effectively when jurisdictional competition allows inconsistencies to develop.¹² If the ICJ is allowed to rule on disputes that closely relate to, or impact upon, proceedings before the ICC then the ICC will be faced with two options. Either the ICC will be forced to adopt the rulings of the ICJ, in which case the ICJ will effectively supplant the Pre-trial Chamber of the ICC as an interlocutory body. Alternatively, the ICC will render its own, conflicting, decisions, which will cast incompatible legal obligations on

⁸ Sharon A. Williams, ‘Preconditions to the Exercise of Jurisdiction’ in Otto Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999) 329; Iain Cameron, ‘Jurisdiction and Admissibility Issues Under the ICC Statute’ in Dominic McGoldrick, Peter Rowe, Eric Donnelly (eds) The Permanent International Criminal Court: Legal and Policy Issues (2004) p. 65.

^{9 John T. Holmes, ‘The Principle of Complementarity’ in Roy S. Lee (ed) The International}

Criminal Court, The Making of the Rome Statute (1999) 52; Leila N. Sadat Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable (2003) 20; Michael P. Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507.

¹⁰ Mohammed El-Zeidy, ‘The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422’ (2003) 35

Vanderbilt Journal of Transnational Law 1503; Carsten Stahn, ‘The Ambiguities of Security

^{Council Resolution 1422 (2002)’ (2003) 14 European Journal of International Law 85.}

¹¹ See generally, ‘Part 2. Jurisdiction, Admissibility and Applicable Law’ in Triffterer (ed), supra n. 8, pp. 97-288.

¹² Gilbert Guillaume, ‘The Future of International Judicial Institution’ (1995) 44

^{International & Comparative Law Quarterly 848, 862; Laurence Helfer & Anne-Marie}

Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale

^{Law Journal 273, 374-375.}

states. Either way, this has serious implications for values such as legitimacy, credibility, efficacy and fairness.¹³

Jurisdictional competition also leads to forum shopping, in which states seek to activate the jurisdiction of a particular court which they think will be sympathetic to their claim. Forum shopping is a threat to legal certainty as it removes the ability for parties to predict the substantial and procedural laws that will govern their conduct.¹⁴ The ability to forum shop also incentivises ‘races to the courthouse’.¹⁵ Where parties to a dispute can identify tangible advantages in seizing a particular jurisdiction, they will seek to do so as quickly as possible, which militates against the successful settlement of disputes through negotiation.¹⁶

Finally, it can be argued that the ICJ is simply not an appropriate court in which to canvas legal issues of international criminal accountability. The concept of the ICJ dates back to the establishment of the Permanent Court of International Justice (PCIJ), forerunner to the ICJ, in 1921, a time at which the current state of international criminal law could not even have been imagined. The recent development of international criminal law has necessitated the creation of highly specialised courts, possessing wide-ranging powers of investigation and fact-finding and an enormously detailed procedural code, designed to safeguard the rights of both perpetrators and victims. None of these institutional mechanisms find equivalents in the ICJ. Therefore, it is inappropriate for the ICJ to rule on matters that ought to be exclusively allocated to the jurisdiction of the ICC.

B. Forum Selection Principles

A number of treaties establishing international or trans-national courts specifically address the issue of forum selection. There are various

¹³ Gilbert Guillaume Address to the UN General Assembly 26 October 2001, available at http://www.icjcij.org/icjwww/ipresscom/SPEECHES/iSpeechPresident_Guillaume_G A55_2001026.htm (last visited on 7 October 2005).

^{14 Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), p. 131}

¹⁵ Ibid., p. 138.

^{16 This has been described by various courts as embarrassing and an invitation of abuse}

(Laker Airways v Sabena [1984] USCADC 103; 731 F 2d 909, 928; Morrison Law Firm v Clarion Co 158 FRD 285 (SDNY 1994)).

approaches in evidence. Some Courts reserve to themselves exclusive jurisdiction.¹⁷ Others take a more flexible approach, allowing parties to opt out of exclusive jurisdiction by special agreement.¹⁸ Still others take the opposite approach entirely, exercising a residual jurisdiction that is only activated when there is no other dispute settlement mechanism available, or the parties agree to forego dispute settlement before another body that would otherwise take precedence.¹⁹ The ICJ exercises a parallel jurisdiction.²⁰ Nothing in the Statute of the Court precludes any party to a dispute from seeking dispute resolution in another forum.²¹ However, although the states parties to the Statute were unwilling to endow the Court with exclusive jurisdiction, they did not intend to subject the jurisdiction of the Court to that of other bodies. States may become amenable in parallel to the jurisdiction of

¹⁷ See for example, article 292 of the European Community Treaty (25 March 1957, 298

^{UNTS 3), which provides that ‘Member states undertake not to submit a dispute}

concerning the interpretation or application of this Treaty to any method of dispute settlement other than those provided for therein’; article 23 of the Dispute Settlement Understanding, annexed to the WTO Agreement, 1995, reserving exclusive jurisdiction over WTO trade disputes to the Disputes Settlement Body; Appendix to Part III of the European Social Charter (18 October 1961, 529 UNTS 89), reserving exclusive jurisdiction to the Collective Complaints Mechanism of the European Committee of Social Rights.

^{18 For example, article 55 of the European Convention on Human Rights (4 November}

1950, 213 UNTS 221). It appears that the drafting parties had the ICJ in mind as an alternative jurisdiction for human rights issues that would otherwise come before the ECHR. (Conference of Senior Officials, 9 June 1950, Doc. CM/WP 4 (50) 3 Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights (Council of Europe, 1975), vol 4, pp. 126-128.) See also article 26 of the International Convention on the Settlement of Investment Disputes, 1965.

¹⁹ For example, article 282 of the United Nations Convention on the Law of the Sea,

^{1982, which provides that the International Tribunal for the Law of the Sea exercises a}

residual jurisdiction. If a case were unilaterally brought before a UNCLOS court in breach of this jurisdictional order of precedence, the judicial body thus seized would be obliged to decline jurisdiction and refer the case back to the competing forum (Tullio Treves, ‘Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice’ (1999) 31 New York University Journal of International Law & Politics 809, p. 811).

²⁰ For another example of parallel jurisdictional systems, see article 44 of the International

^{Covenant on Civil and Political Rights, 1966.}

²¹ In fact, article 95 of the United Nations Charter provides that “nothing in the...Charter shall prevent members of the United Nations from entrusting the solution of their differences to [tribunals other than the ICJ] by virtue of agreements already in existence or which may be concluded in the future”. This is supported by Chapter VI of the Charter, entitled ‘Pacific Settlement of Disputes’, which provides for flexibility in the choice of dispute settlement fora.

the ICJ and other adjudicative procedures and, unless they owe obligations under a compulsory jurisdiction clause, may freely select which forum to seize.²² Jurisdictional competition is therefore a very real problem given the openness of the ICJ’s jurisdiction.

To limit their exposure to concurrent jurisdictions before the ICJ and other dispute settlement bodies, over half of the states that have accepted the compulsory jurisdiction of the Court under article 36(2) have made reservations providing that the jurisdiction of the ICJ over them will be of a residual nature.²³ Where both parties to a dispute relating to proceedings before the ICC are parties to the Rome Statute, then a reservation such as this will compel the ICJ to decline to exercise jurisdiction.²⁴ However, where one party is not a party to the Rome Statute, such a reservation will be of no effect as there will be no alternative forum to the ICJ.

1. Forum Selection - PCIJ Precedents

The PCIJ considered the question of forum selection in a number of early decisions. The principles discussed by the Court did not appear in the Court’s Statute and the Court did not base them on an analysis of customary international law. By implication therefore, the Court must have considered these principles to be consequent upon the nature of the Court as a judicial body of general jurisdiction, or general principles of international law.²⁵

The Mavrommatis case²⁶ involved a claim brought by Greece on behalf of one of its nationals, the owner of concessions in Palestine. Greece alleged that by failing to safeguard the interests of Mr Mavrommatis under the concessions, the government of Great Britain, the Mandatory Power for the territory, had breached the terms of the Mandate for

²² Shany, supra n. 14, p. 196.

²³ Ibid.

^{24 See, for example, the declaration of Belgium, which provides that Belgium accepts the}

compulsory jurisdiction of the Court over disputes “except those in regard to which the parties have agreed or may agree to have recourse to another method of pacific settlement”. (Declaration of the Government of Belgium under Article 36(2) of the ICJ Statute, 302 UNTS 251 (1958)).

²⁵ Shany, supra n. 14, p. 230.

^{26 Mavrommatis case, supra n. 4.}

Palestine. Great Britain raised a preliminary objection, arguing that the jurisdiction of the ICJ under article 26 of the Mandate was limited by the application of an alternative dispute resolution mechanism, Protocol XII. Protocol XII was a separate instrument from the Mandate, concluded later in time, and dealt specifically with the kinds of concessions for which Greece sought protection.

The Court held that, ‘in cases of doubt [as to whether the Mandate and the Protocol were incompatible], the Protocol, being a special and more recent agreement, should prevail’.²⁷ The jurisdiction of the Court under the Mandate was applicable insofar as it was compatible with the Protocol.²⁸ On the facts, the Court could not impute to the parties an intent to entirely exclude the jurisdiction of the Court under the Protocol. However, where the Protocol provided detailed criteria and procedures for the settlement of concession disputes, these aspects of specific jurisdiction excluded the general jurisdiction of the Court concerning the interpretation and application of the Mandate.²⁹

Notwithstanding this limitation on its jurisdiction, the Court was able to exercise jurisdiction over the disputed head of claim because the question was of a preliminary nature and could not have been brought under the Protocol.³⁰

The Chorzow Factory case³¹ concerned the confiscation by the Polish government of properties belonging to a German company. The company made application to an arbitral tribunal constituted under a treaty between Germany and Poland. This suit was still pending when the German government filed an application on behalf of the company in the PCIJ. The preliminary objection at issue in the case was the division of jurisdiction between the Court and the arbitral tribunal. Given that the proceedings were already pending before the tribunal,

²⁷ Ibid., p. 31.

^{28 Ibid.}

²⁹ Ibid., p. 32.

^{30 Ibid., pp. 32-33.}

³¹ The Factory at Chorzow (Germany v Poland) 1927 PCIJ (Ser. A) No. 9 (claim for indemnity) (jurisdiction).

the issue was really one of lis alibi pendens,³² but the Court treated it as an issue of forum selection.³³

Poland argued that the Court should refrain from exercising jurisdiction because the arbitral tribunal had been designated by the parties as a specific procedure for the recovery of indemnities, and therefore they had demonstrated an intent to exclude the general jurisdiction of the PCIJ, following Mavrommatis.³⁴ Germany replied that the arbitral tribunal was created to address private party claims and thus there was no intention to exclude the jurisdiction of the PCIJ in inter-state cases.³⁵

The Court held that the provisions upon which the jurisdiction of the arbitral tribunal was based did not exclude the jurisdiction of the PCIJ as the arbitral tribunal was not empowered to determine the legality of acts of the kind for which the German government claimed an indemnity before the PCIJ.³⁶ In other words, the jurisdictional requirements of the arbitral tribunal were in terms much narrower than those of the PCIJ, to the point that the German government could not obtain adequate remedies through recourse to any forum other than the PCIJ. The Court said:

“The Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice.”³⁷

Here, Germany would have been denied an adequate remedy if the Court’s jurisdiction had been excluded and, in the absence of clear evidence of an intent on the part of the parties to do so, it could not

³² And in fact it was treated as such in earlier proceedings on the same matter in the Case

Concerning Certain German Interests in Polish Upper Silesia 1925 PCIJ (Ser. A) No. 6.

^{33 Shany, supra n. 14, p. 231.}

³⁴ The Factory at Chorzow 1927 PCIJ (Ser. C) No. 13-I, pp. 26-27 (oral pleadings of Poland).

^{35 Ibid p. 69 (oral pleadings of Germany).}

³⁶ Chorzow Factory case, supra n. 31, p. 29.

^{37 Ibid., p. 30.}

lightly be inferred that the jurisdiction of the arbitral tribunal supplanted that of the PCIJ.

The Rights of Minorities case³⁸ concerned the rights of children of the German minority in Polish Upper Silesia to attend German minority schools. According to the German-Polish Convention³⁹ Poland was obliged to allow parents to send their children to German minority schools regardless of the child’s facility in the language. At the beginning of the 1926/1927 school year, the Polish education authorities moved to exclude a number of children from minority schools. Germany disputed this action and, in accordance with articles

147 and 149 of the Convention, the dispute was placed before the Council of the League of Nations for determination. The Council delivered its opinion, the scope of which was then disputed by the German representative to the Council. He expressed his intention to take the matter before the PCIJ on the basis that the dispute was now one of a legal, rather than a political, nature.⁴⁰

Poland, the respondent, objected to the Court’s jurisdiction on the basis that the Convention granted primary jurisdiction over this specific dispute (one pertaining to minority rights) to the Council of the League of Nations under articles 147 and 149.⁴¹ The provisions in question constituted, in the opinion of Poland, a clear intention on the part of the parties not to submit the dispute to judicial settlement where a political alternative was available.

The Court rejected Poland’s argument, stating:

“This principle [of consent as the basis for jurisdiction in the PCIJ] only becomes inoperable in those exceptional cases in which the dispute which States might desire to refer to the

³⁸ Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland) 1928 PCIJ (Ser. A) No. 15.

^{39 The German-Polish Convention regarding Upper Silesia, concluded at Geneva on May}

15^th, 1922. This treaty adopted the provisions of the Minorities Treaty, concluded on June

^{28th, 1919, between the US, Britain, France, Italy and Japan, on the one part, and Poland,}

on the other part.

^{40 Rights of Minorities case, supra n. 38, p. 15.}

⁴¹ Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland) 1928 PCIJ (Ser. C) No. 14-II, pp. 60-61 (oral pleadings of Poland).

Court would fall within the exclusive jurisdiction reserved to some other authority.”⁴²

That was not the case here as the jurisdiction of the Council was entirely distinct from, and in no way restricted, the Court’s jurisdiction to hear and determine disputes between states.⁴³

Drawing on these cases, some conclusions can be drawn about forum selection principles applied in the ICJ. Generally speaking, the Court will decline jurisdiction where two elements are met: (1) another forum can be identified which enjoys jurisdiction over the dispute,⁴⁴ and (2) there is clear evidence that the parties intended the jurisdiction of the alternative forum to be exclusive.⁴⁵ Exclusivity of jurisdiction can be inferred from the fact that the constitutive instrument of the alternative forum constitutes lex specialis and lex posteriori.⁴⁶ Exclusivity can conversely be refuted by reference to the inapplicability of the jurisdiction of the other forum to the particular claims brought before the ICJ, or the unavailability of appropriate remedies.⁴⁷

C. Application of Forum Selection Principles to the Rome Statute

Applying these forum selection principles to the Rome Statute, the ICJ will defer to the jurisdiction of the ICC in circumstances where it is clear that the states parties to the Rome Statute intended to reserve exclusive jurisdiction over a legal issue to the ICC. There are a number of provisions in the Rome Statute that demonstrate an intent to restrict particular legal questions to the ICC. I will examine particularly articles

18 and 19, which provide for challenges to the jurisdiction of the ICC, articles 87-90, which provide for the settlement of issues relating to

⁴² Right of Minorities case, supra n. 38, p. 23.

^{43 Ibid.}

⁴⁴ Given the consent basis of most international adjudicatory jurisdictions, this requires that both parties to the dispute before the ICJ be parties to the instrument constituting the alternative forum.

^{45 It must be noted, however, that there is not complete consistency in the jurisprudence}

of the Court on this point. In Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria)

^{1939 PCIJ (Ser. A/B) No. 77, p. 77 the Court suggested that there should be a}

presumption that new jurisdictional arrangements were not designed to restrict pre- existing ones. This appears to represent an anomaly to the Court’s general approach.

⁴⁶ As in the Mavrommatis case.

^{47 As in the Chorzow Factory case.}

custody, and final article 119, which explicitly allocates dispute settlement jurisdiction between the ICJ and the ICC.

1. Articles 18 and 19

Article 18(2) allows for a state that is either a State Party or a state that would “normally exercise jurisdiction over the crimes concerned” to request that the Prosecutor defer an investigation over a national or an individual within its jurisdiction on the basis that it is investigating the individual in question. Article 19(2) provides that challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by a state that has jurisdiction over a case,⁴⁸ or a state from which acceptance of jurisdiction is required under article 12. Article 19(2)(a) further provides that a state that has jurisdiction may only challenge admissibility or jurisdiction on the ground that it is investigating or prosecuting the case. Thus, a state seeking to challenge admissibility or jurisdiction under this provision may only do so on a very limited basis. Article

19(2)(c) does not provide any further guidance as to the substantive grounds upon which an article 12 state may challenge admissibility. Thus, states from which acceptance is required under article 12, in accordance with the first part of article 19(2), may challenge admissibility on the basis of article 17, or jurisdiction generally. The implication, however, is that challenges to jurisdiction by an article 12 state must be on the ground that facts do not exist to support a finding of jurisdiction under either the nationality principle or the territoriality principle under article 12.

Articles 18 and 19 specifically reserve to the ICC the power to decide this narrow range of legal questions. Therefore, a state that wishes to dispute the right of a custodial state to send one of its nationals to the ICC on the basis that (1) it wishes to exercise its own jurisdiction and is either investigating or seeking to prosecute the individual in question, or (2) facts do not exist to support a finding of jurisdiction under article

12, may only do so before the pre-trial chamber of the ICC. Both these disputes fall under the second of the categories of dispute identified earlier. However, these provisions are so specific that they cannot be

⁴⁸ Notably, regardless of whether they are a State Party to the Statute.

read as reserving to the ICC jurisdiction over all the disputes falling into category two.

2. Articles 87-90

Article 87 provides for requests for cooperation made by the ICC to a state. Under article 89, the ICC can request that a custodial state surrender a person to the Court. Under article 90, where a custodial state receives competing requests from the ICC and from another state also party to the Rome Statute, it is directed to give precedence to the request from the ICC. Finally, under article 87(7), if a state fails to comply with a request from the Court, the matter is referred to the Assembly of States Parties or the Security Council.

Here again, we see clear intent on the part of the parties to the Rome Statute to have certain issues dealt with exclusively by a mechanism other than the ICJ, in this case either the Assembly of States Parties or the Security Council. If the ICJ forum selection principles required deference to these provisions, then potentially the range of disputes excluded from the purview of the ICJ would be extremely broad, as almost any dispute between a state of nationality and a custodial state will relate to the proposed surrender of an individual to the ICC.

However, applying the Rights of Minorities case, it is unlikely that the ICJ would defer to the Assembly or the Security Council under these provisions. In Minorities, the PCIJ refused to defer to the Council of the League of Nations on the basis that the League as a political body exercised a jurisdiction that was distinct from that of the Court and therefore the case did not fall into the category of ‘exceptional cases’ in which the Court would decline jurisdiction.⁴⁹ Articles 87-90 do not outline the actions that the Assembly or the Security Council are expected to undertake upon referral. Nor is it clear that the Assembly and the Security Council are in a position to grant an adequate range of remedies to a state pursuant to referrals under these provisions.

C. Article 119

Article 119 provides:

Article 119

Settlement of Disputes

1. Any dispute concerning the judicial functions of the Court shall be settled by decision of the Court.

2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

Article 119 deals explicitly with the allocation of jurisdiction between the ICC and the ICJ. There is no doubt that the ICJ would decline its jurisdiction in favour of this specific provision reserving jurisdiction to the ICC.⁵⁰ However, the ICJ need only defer to the ICC in disputes concerning the ‘judicial functions of the Court’. Disputes relating to the

‘interpretation or application’ of the Rome Statute may still fall within the purview of the ICJ. There has been no judicial comment on article

119, either from the ICC itself or any other court. However, the travaux préparatoires of the Rome Statute demonstrate the distinction between

‘judicial functions’ and ‘interpretation and application’.

⁵⁰ Though Roslyn Higgins has disagreed. She is of the opinion that states are not able to subsequently modify the effect of a declaration under article 36(2) through a bilateral or multilateral treaty (Roslyn Higgins, ‘The Relationship between the International Criminal Court and the International Court of Justice’ in Herman von Hebel, Johan Lammers, Jolien Schukking (eds) Reflections on the International Criminal Court (1999), pp. 164-165). Therefore, she does not think that the procedural and substantive restrictions on the jurisdiction of the ICJ contained in article 119(2) would be of any effect where states had previously accepted the compulsory jurisdiction of the Court. Higgins’ view is not supported by the case law, however, nor is there precedent for elevating declarations under article 36(2) to a higher status than that of a bilateral or multilateral treaty.

1. T r a v a u x P r é p a r a t o i r e s to Article 119

In its final report, the Preparatory Committee included the following four dispute settlement options for consideration at the Rome Conference:⁵¹

Settlement of Disputes

Option 1

[Except as otherwise provided in the Statute,] [a] [A]ny dispute concerning the interpretation or application of this Statute shall be settled by the decision of the Court.

Option 2

Without prejudice to the competence of the Court concerning disputes relating to its judicial activities as is established in accordance with this Statute, any dispute between two or more States Parties relating to interpretation or application of this Statute which is not resolved through negotiations [within a reasonable time] [within ... months] shall be referred to the Assembly of States Parties which shall make recommendations on further mean of settlement of the dispute.

Option 3

Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.

Option 4

No article on dispute settlement.

Any dispute between states parties to the Rome Statute will inevitably involve ‘interpretation or application’ of the Statute. The drafters of the Rome Statute appear to have treated ‘judicial functions’ as a specific subset of all disputes concerning the interpretation or application of the Statute. ‘Interpretation or application’ is thus a residual category of dispute settlement. If one accepts this then it appears that option 1

⁵¹ UN Doc. A/CONF.183/2/Add.1 (14 April 1998).

effectively empowers the ICC to decide all disputes between states parties concerning the Rome Statute. This is because option 1 does not carve out ‘judicial functions’ and reserve this category of dispute settlement to a particular body. Rather, the whole gamut of disputes is left to the Court to decide.

On the other hand, option 3 takes the opposite approach. While there is no explicit reference to the differentiation between ‘judicial functions’ and ‘interpretation or application’, it is clear, given the obvious differentiation in the minds of the drafters, that ‘judicial functions’ is carved out of the overall category of dispute settlement and reserved to the jurisdiction of the ICC. No advice is given as to how disputes falling into the residual category are to be dealt with.

Option 2 is closest to that ultimately adopted by the states parties at the

Rome Conference. Like article 119, it differentiates explicitly between

‘judicial functions’⁵² and the residual category. Also, like article 119, the Assembly of States Parties is given the role of making recommendations on further means for the settlement of disputes falling into the residual category.

The wording of option 2 gives a hint as to what is meant by ‘judicial functions’ in article 119. The key phrase is: ‘the competence of the Court concerning disputes relating to its judicial activities as is established in accordance with this Statute’ [emphasis added]. This phrasing suggests that the term ‘judicial functions’ should be read as analogous to the principle of compétence de la compétence, which recognises the competence of any international judicial body to determine the width of its own jurisdiction. It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of tribunals, although this is often done.⁵³ In the Rome Statute the principle of compétence is expressly provided for in article 19,⁵⁴ which provides that the Court shall satisfy itself that it has

⁵² Although it uses the phrase “judicial activities”.

⁵³ Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Prosecutor v Tadic, ICTY, Appeals Chamber, case no. IT-94-1-AR72, 2^nd October 1995, para. 18; Nottebohm Case (Liechtenstein v. Guatemala), 1953 ICJ Reports 7, p. 119.

^{54 In the draft statute produced by the Preparatory Committee, the principle of compétence}

appeared in both articles 14 and 17. Article 14 contained a stand-alone provision outlining the principle of compétence but this was deleted as it was considered redundant in

jurisdiction in any case brought before it.⁵⁵ Hence, the reference to

‘competence...as is established in accordance with this Statute’ most probably refers to the principle of compétence as outlined in the Statute. A consequence of this is that ‘judicial functions’ should be read as equivalent to the principle of compétence.

2. Procedural Issues

Article 119 permits the referral of a dispute to the ICJ only after certain procedural preconditions are satisfied. Firstly, there is an obligation on the parties to the dispute to negotiate for a period of three months.⁵⁶

Once the three months are up, only a successful resolution of the dispute can prevent a referral to the Assembly of States Parties. Article

^{119 does not specify who has the obligation to refer the dispute to the}

Assembly of States Parties. While it has been suggested that the Preparatory Commission⁵⁷ would outline the details of dispute settlement as part of the Rules of Procedure and Evidence,⁵⁸ the Rules contain no guidance on this issue. In the absence of a more restrictive rule, presumably any party to the dispute could refer the matter⁵⁹ and certainly, in the interests of continuing the dispute settlement process, all parties will have an incentive to do so.

The Assembly of States Parties may then ‘itself seek to settle the dispute’. Under article 112, the Assembly has the power to ‘establish subsidiary bodies as may be necessary’ and this might include committees or working groups, or even quasi-judicial bodies, to determine or mediate the dispute.⁶⁰ If none of the above mechanisms

light of the similar wording adopted in article 17. Article 17 was retained in the Rome

^{Statute as article 19.}

⁵⁵ Francesca Trombetta-Panigadi ‘Some Remarks on the Settlement of Disputes in the Rome Statute of the International Criminal Court’ in Mauro Politi, Giuseppe Nesi (eds) The Rome Statute of the International Criminal Court: A Challenge to Impunity (2001), p. 235

^{56 This three month deadline was inserted in order to prevent lengthy arguments about}

the status of negotiations (Triffterer (ed.), supra n. 8, p. 1246).

^{57 The Preparatory Commission, not to be confused with the Preparatory Committee, was}

established as part of the Final Act establishing the Rome Statute in order to draft further instruments such as the Rules of Procedure and Evidence and the Relationship Agreement with the United Nations.

^{58 Triffterer (ed.), supra n. 8, p. 1247.}

⁵⁹ Lee (ed), supra n. 9, p. 431

^{60 Triffterer (ed.), supra n. 8, p. 1247}

resolve the dispute, at this point the Assembly may recommend further means of settlement, including referral to the ICJ. However, as article

119(2) does not constitute a referral mechanism under article 36(1) of the ICJ Statute,⁶¹ the states parties must seize the Court by way of special agreement or through such ICJ jurisdictional provisions as already apply between them, either by acceptance of the compulsory jurisdiction of the Court under article 36(2) or pursuant to a pre- existing treaty referral mechanism under article 36(1).

3. Article 119(1): Judicial Functions

As discussed above, the drafting history of the Rome Statute suggests that the reference to ‘judicial functions’ should be read as analogous to the principle of compétence. Hence, the scope of article 119(1) will depend on the range of issues that can be said to be within the competence of the ICC. The issue is how narrow a view one takes of the scope of the principle of compétence. Does the competence of the ICC comprise only disputes as to the jurisdictional requirements set out in articles 12-17 (category two disputes), or is it wider, subsuming any challenge to the jurisdiction of the ICC, even challenges that are logically prior to any discussion of the recognised jurisdictional bases in article 12 (category one disputes)? The Trial Chamber of the ICTY took the first view in the Tadic case, holding that:

“The competence of the International Tribunal is precise and narrowly defined; as described in Article 1 of its Statute, it is to prosecute persons responsible for serious violations of international humanitarian law, subject to spatial and temporal limits, and to do so in accordance with the Statute. That is the full extent of the competence of the International Tribunal.”⁶²

This statement was in the context of a motion by the defence arguing that the establishment of the ICTY was ultra vires the powers of the Security Council. The Trial Chamber took the view that it did not have the power to hear such an argument. Applied to the Rome Statute, this would mean that the ICC would have the power to determine its own

⁶¹ Higgins, supra n. 50, p. 164.

⁶² Decision on the Defence Motion on Jurisdiction, Prosecutor v Tadic, ICTY, Trial

^{Chamber, case no. IT-94-1, 10 August 1995, para. 8.}

jurisdiction and the admissibility of a case in accordance with the terms of articles 12 and 17, but would not have the power to decide any dispute relating to its own jurisdiction that fell outside the strict terms of the Statute.

The Appeals Chamber, applying the broad approach to the principle of compétence, rejected the Trial Chamber’s reasoning. The Appeals Chamber held that it was wrong to assume that jurisdiction could be determined exclusively by reference to, or inference from, the intention of the Security Council. This was to ignore any residual powers that may derive from the requirements of the ‘judicial function’ itself.⁶³

Consequently, it was entirely within the competence of the ICTY to hear argument on the legitimacy of its own establishment. This demonstrates that the competence of an international court to determine the width of its own jurisdiction is very broad. Hence, even disputes falling into the first category of dispute identified in the introduction will fall under article 119(1), and will therefore be reserved to the jurisdiction of the ICC. Disputes under categories two and three will also undoubtedly fall within the concept of ‘judicial functions’ as they relate directly to the prosecutorial function of the Court.

4. Article 119(2): Interpretation and Application

Article 119(1) takes precedence over article 119(2) since 119(2) expressly reserves the competence of the Assembly over disputes other than those mentioned in article 119(1). As I have already concluded that most if not all of the disputes that I am considering will fall within article 119(1) by virtue of the principle of compétence it is perhaps not necessary to consider the application of 119(2) but I will do so for the sake of completeness.

The phrase ‘interpretation and application’ is something of a term of art in international legal jurisprudence.⁶⁴ In the Oil Platforms case⁶⁵ Judge Higgins delivered a separate opinion that considered in detail the phrase ‘interpretation and application’ as it appeared in article XXI(2)

⁶³ Tadic, supra n. 53, para. 14.

^{64 Triffterer (ed.), supra n. 8, p. 1245.}

⁶⁵ Case Concerning Oil Platforms (Iran v United States) 1996 ICJ Reports 803, separate opinion of Judge Higgins.

of the 1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States.⁶⁶ The issue in that case was whether there was in fact a dispute as to the interpretation or application of the Treaty. If the dispute between the parties was not one of interpretation or application of the Treaty then the ICJ was unable to exercise its jurisdiction over the case. Judge Higgins noted that the issue was not an isolated one, as the phrase ‘interpretation or application’ appears in dispute settlement provisions in a wide variety of treaties.⁶⁷

It was submitted by the parties that there must be established a

‘reasonable connection’ between the claims advanced and the treaty upon which jurisdiction is allegedly established. According to Judge Higgins this is a necessary but not sufficient condition.⁶⁸ Judge Higgins adopted the approach in the Ambatielos case⁶⁹ where the ICJ held that the test was whether the interpretation of the applicant state in respect of the treaty provisions on which the claim is allegedly based is of a sufficiently plausible character to warrant a conclusion that the claim is based on a treaty.⁷⁰ This involves accepting the facts alleged by the applicant as true and determining whether they would therefore establish a breach of a relevant treaty provision, given a plausible interpretation of that provision. This approach is restricted to the jurisdictional phase of the case and does not affect the ability of the court to later decide that there has not in fact been a breach of the relevant provision. It is only at the merits that one sees whether there really has been a breach.⁷¹

This approach raises two related point in regards to article 119(2) of the Rome Statute. The first is that, in order for the dispute to be referred to the ICJ, the interpretation contended by the applicant state for the provision of the Rome Statute in question must be a plausible one, assuming the facts alleged to be true. The second is that the dispute

⁶⁶ That article provided that ‘any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice’.

^{67 Oil Platforms case, supra n. 65, para. 3.}

⁶⁸ Ibid., para. 31.

^{69 Ambatielos (Greece v United Kingdom) 1953 ICJ Reports, p. 10.}

⁷⁰ Oil Platforms case, supra n. 65, para. 32; Ambatielos case, ibid., para. 17.

^{71 Mavrommatis case, supra n. 3, p. 23.}

must be linked to a provision of the Rome Statute for the ICJ to accept that it has jurisdiction over the dispute. Where the dispute involves a matter not provided for by the Rome Statute, or not plausibly linked to the terms of the Rome Statute, article 119(2) does not apply. The disputes that I have identified as falling into the first category – pre- jurisdictional disputes dealing with the powers of states to establish an international criminal court, or disputes as to the application of bilateral immunity agreements or Status of Forces Agreements – are not linked to a provision of the Rome Statute itself. Rather, they are based upon the application of other international instruments or the legitimacy of the Court itself. Consequently, even if disputes under category one do not fall under article 119(1), it is very likely they cannot go before the ICJ under article 119(2) either.

D: Conclusion

To conclude, the forum selection principles applied by the ICJ indicate that the Court will give effect to alternative dispute resolution bodies designated by the parties as having exclusive jurisdiction. In order to say that the parties have designated the ICC as an exclusive jurisdiction, it must be the case that both parties to the dispute are parties to the Rome Statute. Where this requirement is satisfied, disputes that relate to issues falling under articles 18 and 19 will be excluded from the jurisdiction of the ICJ as they are specifically reserved to the Trial Chamber of the ICC. Matters falling under articles 87-90 most likely will not be declined as the mechanism of referral to the Assembly or Security Council does not specifically exclude the ICJ’s judicial decision-making power. Finally, article 119 specifically allocates jurisdiction between the ICJ and the ICC, and the ICJ will respect the procedural and substantive requirements contained therein. The broad competence of the ICC to determine the width of its own jurisdiction entails the exclusion of disputes falling under all three categories from the purview of the ICJ.