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The Commonwealth and Domestic Jurisdiction *

Published online by Cambridge University Press:  28 March 2017

John M. Howell  and
Robert R. Wilson
John M. Howell
Affiliation:
East Carolina College
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Extract

The United Nations Security Council in a resolution passed on August 9, 1960, reaffirmed that “the United Nations force in the Congo will not be a party to or in any way intervene in or be used to influence the outcome of any internal conflict. …” A Commonwealth state, Ceylon, was a cosponsor of this precedent-making resolution. A few weeks earlier the Government of Malaya had announced a boycott on South African goods in protest against South Africa’s racial policy, another dispute involving a domestic jurisdiction plea. Commonwealth members have been parties to approximately half of the disputes in League of Nations or United Nations history that are fairly classifiable as involving pleas of domestic jurisdiction. These recent actions of Ceylon and Malaya suggest that the newer members of the Commonwealth will be no less active in shaping the domestic jurisdiction concept than the older members have been.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 1 , January 1961 , pp. 29 - 44
Copyright
Copyright © American Society of International Law 1961

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Footnotes

*

The authors acknowledge with appreciation a grant from the Duke University Commonwealth-Studies Center which has made possible the research for this study.

References

1 U.N. Doc. S/4426. No previous resolution has implied that a matter was domestic.

2 The Times (London), July 7, 1960, p. 10.

3 The two cases involving South African racial policies have been perennial, and the discussions have been long, thereby multiplying Commonwealth participation. In other cases, Commonwealth members have been leaders. The Australian delegate was active in the question of Relations of Members of the United Nations with Franco Spain. Australia and India were vitally concerned with the solution of the Indonesian question.

4 Berkes, Ross N., “Can We Count on the United Nations?” 38 Current History 324-325 (1960)Google Scholar.

5 There is a thorough coverage of the concept of “international concern” in Lawrence Preuss, “Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction,” 74 Hague Academy Recueil des Cours 553-653 (1949, I).

6 P.C.I.J., Ser. C, No. 2, p. 27.

7 Ibid. 27, 193-211.

8 Ibid. 193-211, 245.

9 Ibid., Ser. B, No. 4, p. 22.

10 Ibid. 25.

11 Ibid. 26.

12 Ibid.

13 Ibid. 28-32. For a statement on the irrelevancy of the law relied on in this case, see Louis Le Fur in 36 Annuaire de l’Institut de Droit International 35 (1931, I).

14 Waldock, C. H. M. has said that, if the Court was not to refuse to give an opinion, it was almost bound to compromise by making a superficial appreciation of the contentions of the parties. “The Plea of Domestic Jurisdiction before International Legal Tribunals,” 31 Brit. Yr. Bk. of Int. Law 108 (1954)Google Scholar. Indeed, the possibility of narrowing the domestic jurisdiction protection before the Court through the advisory opinion procedure could be regarded as an important avenue for reducing the protection of the clause in general. In the cases on Admission of Members to the “United Nations and the Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania, the Court held that questions of interpretation presented to it in such a manner were necessarily and always legal questions. The same view was expressed by Lauterpaeht (in a separate opinion on Admissibility of Hearings of Petitioners by the Committee on South-West Africa) when he said of the Court’s opinion on the conditions of membership in the United Nations that: “The Court was on that occasion concerned with the objection that ‘the question put [to it] must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the Court.’ “ But, he added, the Court rejected the argument because it could not “attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision.” [1956] I. C. J. Rep. 36-37.

15 Waldock comments that some of the difficulty which surrounds the doctrine of domestic jurisdiction is due to its dual character, concerned with both the boundary between international and state jurisdiction and the substantive rights and obligations of states under international law. Loc. cit. 98, 106. On Professor Waldock’s difference with Judge Lauterpaeht over the possibility of determining the question of jurisdiction without deciding the merits of the case, see loc. cit. 111-113. Waldock concludes that the chief danger of the “provisional view” theory is that the Court may fail to be convinced of the existence of international elements in the plaintiff’s claim, of which it might have been convinced after a full hearing on the merits, Loc. cit. 113. Jacoby, Sidney B. concluded earlier that the Court has not tended to decline jurisdiction. “Some Aspects of the Jurisdiction of the Permanent Court of International Justice,” 30 A.J.I.L. 234 (1936)Google Scholar. Recent jurisprudence of the Court in domestic jurisdiction cases appears to support Jacoby’s conclusions.

16 I.C.J. Pleadings, Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania 314, 324.

17 Ibid. 315.

18 [1950] I.C.J. Rep. 70-71.

19 I.C.J. Pleadings, Anglo-Iranian Oil Company Case 353-354.

20 Ibid. 156,159.

21 I.C.J. Pleadings, Ambatielos Case (Greece v. United Kingdom) 378, 382, 383, 387.

22 Ibid. 388, 434. For an earlier British claim that the claim must be well founded, see ibid. 247.

23 [1953] I.C.J. Rep. 18-21. As in the case of the Tunis-Morocco Nationality Decrees, the Court was faced with giving a decision on the jurisdiction of another body. The Greek claim was based on a treaty of 1886 and a Declaration of 1926, under which the United Kingdom had obligations to submit to arbitration. The British defense before the Court was that the claim was not related to the treaties. The Court was not called upon to decide the merits of the case ; that was for the Commission of Arbitration. The Court was simply deciding whether the United Kingdom had an obligation to submit to arbitration.

24 [1953] I.C.J. Rep. 22.

25 [1957] ibid. 131.

26 Ibid. 149.

27 Ibid. 150. The Court again applied an easy test of relevance when it considered the domestic jurisdiction plea of India on the merits, as will be seen in the following section.

28 General Assembly, 7th Sess., Official Records, Ad Hoc Political Committee 115.

29 This again raises the distinction between the nature of the dispute and the extent of a state’s obligations, dealt with in the preceding section of the present paper. The material of these two sections is very closely related.

30 P.C.I.J., Ser. C, No. 2, p. 23. The question of two separate competences was dealt with by two committees that the Council of the League of Nations established to assist it in the Aaland Islands case. The first committee appears to have realized that the competence of the Council depended on the substantive question of Finland’s competence to govern the Islands without outside interference. Official Journal, Spec. Supp. No. 3, October, 1920, pp. 4-5, 14.

31 P.C.I.J., Ser. C, No. 2, pp. 57, 215-217. The French recognized that restriction to a preliminary procedure would be to the British advantage.

32 P.C.I.J., Ser. B, No. 4, p. 22.

33 One author has suggested, on the basis of “private information,” that during the fifteen-hour oral argument of one of the representatives “the judges showed both their disapproval and their aptness for judicial functions by falling fast asleep.” Gregory, Charles Noble, “An Important Decision by the Permanent Court of International Justice,” 17 A.J.I.L. 306 (1923)Google Scholar.

34 Lauterpacht in 1930 criticized the Court’s opinion in this case for providing a preliminary judgment on domestic jurisdiction (separating the question of jurisdiction from the merits of the case). “British Reservations to the Optional Clause,” 10 Economica 153 n. (1930). See note 15 above, on Waldock’s disagreement.

Preliminary objections of a technical, procedural nature have been rare before the Court. The Court generally overrules them. Simpson, J. L. and Tox, Hazel, International Arbitration: Law and Practice 157 (New York, 1959)Google Scholar. Art. 62 of the Court’s rules of procedure allows for preliminary objections and provides that they must be submitted before the time limit for the first pleading expires, that they will suspend proceedings on the merits, and that after oral arguments the Court will give a decision on the objections or join the objections to the merits. I.C.J., Series D, Acts and Documents Concerning the Organization of the Court, No. 1 (1947), pp. 74-75.

35 See Briggs, Herbert W., “The United States and the International Court of Justice,” 53 A.J.I.L. 304 (1959)Google Scholar, for an account of the disposition of these pleas. See also, Hammarskjold, Ake, “The Permanent Court of International Justice and the Development of International Law,” 14 International Affairs 801 (1935)Google Scholar; Waldock, loc. cit. 98, 106, 113-116.

36 [1960] I.C.J. Rep. 33. Italics added.

37 Ibid. 45-46.

38 I.C.J. Pleadings, Anglo-Iranian Oil Company Case 358.

39 Cocâtre-Zilgien, André, “Les mesures conservatoires en Droit International,” 11 Revue égyptienne de droit international 75 (1955)Google Scholar.

40 The problem of interim measures has been seldom dealt with. The most complete coverage in English is in Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague, 1932). In French there are the two works by Guggenheim, Paul, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens (Paris, 1931)Google Scholar, and “Les mesures conservatoires dans la procedure arbitrale et judiciaire,” 40 Hague Academy Recueil des Cours 649-764 (1932, II )Google Scholar. For further bibliography and references to cases, see Cocâtre-Zilgien, loc. cit. 110, and I.C.J. Pleadings, Anglo-Iranian Oil Company Case 401-411.

41 [1951] I.C.J. Rep. 92.

42 I.C.J. Pleadings, Anglo-Iranian Oil Company Case 407-411.

43 Ibid. 416. After the interim order had been issued (July 5, 1951), and during the arguments on the question of jurisdiction, Iran denied the competence of the Court to issue interim measures. The United Kingdom representative answered that the question of the competence of the Court to issue interim orders was different from the question of determining jurisdiction to decide the dispute on the merits, which was at that time before the Court. Ibid. 282-283, 322.

44 [1951] I.C.J. Rep. 92-93. Judges Winiarski and Badawi Pasha dissented. They argued that the Court had power to issue interim orders only if it held, even if only provisionally, that it was competent to hear the case on the merits. Art. 41, they said, presupposed the competence of the Court. They did not say that the Court would have to decide finally that it had jurisdiction, but that it should consider its competence “reasonably probable.” They refused to accept the view that, unless there was a prima facie total lack of jurisdiction of the Court, it was competent to issue interim measures. Ibid. 96-97. Consent of the parties was basic to their argument, as would be expected in any question of the Court’s jurisdiction in this type of case.

45 Ibid. 93. Manley O. Hudson, in commenting on this case, said that the view expressed by Judges Winiarski and Badawi Pasha would cripple the Court in the exercise of an essential function. Hudson supported the issuance of orders without inquiring as to jurisdiction, but he said that if the Court’s lack of jurisdiction was patent (if Iran had made no declaration under the Optional Clause) the “Court would naturally take this into account in connection with the condition set in Article 41 by the phrase ‘if it considers that circumstances so require.’ ” “The Thirtieth Year of the World Court,” 46 A.J.I.L. 22 (1952).

46 The question of the “third zone” between matters within domestic jurisdiction (narrow sense) and international jurisdiction has not been dealt with here. For an introduction to the concept, see Rolin, Henri, “The International Court of Justice and Domestic Jurisdiction: Notes on the Anglo-Iranian Case,” 8 International Organization 41-44 (1954)CrossRefGoogle Scholar ; and Le Fur, in 36 Annuaire de l’Institut de Droit International 35-36, 49 (1931, I).

47 The Interhandel case also involved both a request for interim measures and a domestic jurisdiction plea. The Court took jurisdiction in the ease, but it decided not to order the interim measures requested by Switzerland because developments in the case before U. S. courts provided the requested protection. The ability of interim measures to obligate a country in an alleged domestic matter while the question of jurisdiction is being decided by the Court was a factor in the United Kingdom reservation of national security under the Optional Clause. See 577 Parliamentary Debates, 5th Ser., House of Commons, cols. 474-475 (Nov. 8, 1957).

48 Security Council, 4th Year, Official Records, No. 28, p. 7. See Eagleton, Clyde, “The Case of Hyderabad before the Security Council,” 44 A.J.I.L. 277-302 (1950)Google Scholar.