New Zealand Law Students Journal
Last Updated: 24 October 2012
REGULATING JURISDICTIONAL COMPETITION BETWEEN THE INTERNATIONAL COURT OF JUSTICE AND
THE INTERNATIONAL CRIMINAL COURT1
The proliferation of international courts and tribunals in recent times
has raised the issue of how jurisdictional overlap between
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
of jurisdictional competition which, while it has not
as yet arisen, may be expected to in the future: competition
the International Court of Justice (ICJ) and the International Criminal Court
The ICJ is an international court established as the principal judicial
organ of the United Nations. The ICJ is empowered
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
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
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
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
before the ICC.2 Nevertheless, given the opposition that the ICC
has experienced from many states in the international order and the
attitude that most states take towards their nationals, it is
probable that at some point the jurisdiction of the ICJ and the ICC
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
of the ICC depends upon cooperation from the states parties
to the Rome Statute, this form of jurisdictional
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
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
explores only one potential avenue of jurisdiction regulation
between the ICJ and the ICC. Other jurisdiction regulating norms
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
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
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
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,
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
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
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
54th 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
of objections to ICC jurisdiction can be identified. The unifying
theme common to all these forms of dispute is that they are
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
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
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
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,
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
Finally, it can be argued that the ICJ is simply not an appropriate court in
which to canvas legal issues of international criminal
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,
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
B. Forum Selection Principles
A number of treaties establishing international or trans-national courts
specifically address the issue of forum selection.
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  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
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
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
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
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
the territory, had breached the terms of the Mandate for
22 Shany, supra n. 14, p. 196.
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
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
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
filed an application on behalf of the company in the PCIJ. The
preliminary objection at issue in the case was the division
jurisdiction between the Court and the arbitral tribunal. Given that the
proceedings were already pending before the
27 Ibid., p. 31.
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
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
“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
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.
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,
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
15th, 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
Court would fall within the exclusive jurisdiction reserved to some other
That was not the case here as the jurisdiction of the Council was
entirely distinct from, and in no way restricted, the
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
lex specialis and lex posteriori.46
Exclusivity can conversely be refuted by reference to the
inapplicability of the jurisdiction of the other forum to
claims brought before the ICJ, or the unavailability of appropriate
C. Application of Forum Selection Principles to the Rome
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
42 Right of Minorities case, supra n. 38, p. 23.
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
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
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
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
earlier. However, these provisions are so specific that they cannot
48 Notably, regardless of whether they are a State Party to the
read as reserving to the ICC jurisdiction over all the disputes falling into
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
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
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
C. Article 119
Article 119 provides:
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
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
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
1. T r a v a u x P r é p a r a t o i r e s to Article
In its final report, the Preparatory Committee included the following
four dispute settlement options for consideration at the
Settlement of Disputes
[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.
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
Assembly of States Parties which shall make recommendations on
further mean of settlement of the dispute.
Any dispute concerning the judicial functions of the Court shall be
settled by the decision of the Court.
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
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
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:
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
component in the exercise of the judicial function and does not
need to be expressly provided for in the constitutive
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
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, 2nd 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
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
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
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
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 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
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
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
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
to exercise its jurisdiction over the case. Judge Higgins noted that the
issue was not an isolated one, as the phrase
application’ appears in dispute settlement provisions in a wide variety
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.
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
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
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)
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.