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Published online by Cambridge University Press: 25 May 2021
1. This Special Course is part of the Collected Courses of the Xiamen Academy of International Law to promote global and Asian understanding of international law for world peace and co-operation.
2. See ch. 2 at 43 as demonstrated in the South West Africa cases—Mandate system—South West Africa (Ethiopia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] I.C.J. Rep. 6; Reduced global tensions—Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment of 25 March 1948, [1948] I.C.J. Rep. 17; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, [1979] I.C.J. Rep 7 at 15, para. 22; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, [1980] I.C.J. Rep. 3 at 20, para. 37; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment of 27 February 1998, [1998] I.C.J. Rep. 9 at 26, para. 44; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction of the Court and Admissibility of the Application, Judgment of 26 November 1984, [1984] I.C.J. Rep. 392 at 431–2, paras. 89, 91.
3. Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963, [1963] I.C.J. Rep. 15 at 29; and the Nuclear Tests (Australia v. France), Judgment of 20 December 1974, [1974] I.C.J. Rep. 253. For the difference between the Northern Cameroons case and the Nuclear Test cases, see ch. 2 at 51.
4. Special Agreement of 20 February 1967, North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany /Netherlands), [1967] I.C.J. Pleadings at 6–10; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment of 17 December 2002, [2002] I.C.J. Rep. 625 at 630, para. 2; and the journey to adopting a Special Agreement in the Pedra Branca case, JAYAKUMAR, S. and KOH, Tommy, Pedra Branca: The Road to the World Court (Singapore: NUS Press, 2009)Google Scholar at 35–41.
5. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, [2008] I.C.J Rep. 412.
6. Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment of 22 July 1952, [1952] I.C.J. Rep. 93 at 114; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] I.C.J. Rep. 117 at 204, para. 63; in the case of the Corfu Channel case, see annotation at ch. 3, n. 34; for some cases where the applicant invoked forum prorogatum but the named states did not consent, and consequently the cases were removed from the General List of the Court, see at 70; Counter-Memorial of the Republic of India, Obligations concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), [2015] I.C.J.; Pleadings and Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Order of 16 June 2014, [2014] I.C.J. Rep. 464 (see also List of Cases at 238–9); Rules of Court at 67, 225–6 of bibliography, and arguments of scholars at 69.
7. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013, [2013] I.C.J. Rep. 281 (see also List of Cases at 237).
8. Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, [2016] I.C.J. Rep. 100 at 126, para. 59.
9. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration by Judges Owada, Bennouna, and Gaja, [2013] I.C.J. Rep. 281 at 320, paras. 1–2.
10. See at 111 where the learned Judge comments on the determination of the existence of a dispute and differences between the case concerning Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion of 26 April 1988, [1988] I.C.J. Rep. 12 and the opposite positions and conduct of the parties as expressed by Judge Morelli in his dissenting opinion in the South West Africa cases, or as inferred from the evidence presented in a case such as in the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), or the existence of a dispute at the time an application is filed in court (critical date referred to as relevant date), and the case concerning Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, [2016] I.C.J. Rep. 3 at 33, para. 76.
11. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, [2012] I.C.J. Rep. 422. The learned Judge points out that there are fundamental differences between the mandate of the Court and municipal courts and other international judicial organs, the International Tribunal for the Law of the Sea, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court, the European Court of Justice, and regional courts of human rights (at 182).
12. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections, Judgment of 24 September 2015 [2015] I.C.J. Rep. 592. See also Jurisdiction based on Optional Clause declarations which are examined in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) Counter-Memorial of India, supra note 9 at 25, para. 51, where India, inter alia, excluded internal matters from the Court's jurisdiction.
13. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). Examples of a few cases are set out here:
1. The Court adopted a broad scope interpretation of exercise of jurisdiction where the litigant states held different views on the scope of the jurisdiction conferred on the Court as in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment of 11 September 1992, [1992] I.C.J. Rep. 351;
2. The Court adopted a broad scope of jurisdiction ratione materiae on the merits in a case of forum prorogatum (Article 38(5) Rules of Court) (at 186) where the respondent accepted the invitation of the applicant to submit the dispute to the Court “through two intersecting unilateral declarations” (at 186), Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] I.C.J. Rep. 177; and
3. The Court adopted jurisdiction ratione materiae under the compromissory clause of the 1955 Treaty of Amity, Economic Relations, and Consular Rights Between the United States of America and Iran in the Oil Platforms Case, Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment of 12 December 1996, [1996] I.C.J. Rep. 803 at 805, para. 1. See also Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, [2010] I.C.J. Rep. 14, where the learned Judge explained, “the scope of the subject-matter jurisdiction of the Court must coincide with the scope ratione materiae of the applicable treaty provisions” (at 195).
14. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction of the Court and Admissibility of the Application, Judgment of 26 November 1984, supra note 5, and the case of Certain Norwegian Loans (France v. Norway), Judgment of 6 July 1957, [1957] I.C.J. Rep. 9.
15. Cf. on the Court's jurisdiction to consider disputes involving erga omnes obligations (and jus cogens peremptory norms), see ch. 7 at 196, and n. 49, where the Court pointed out that, “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things”.
16. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, [2012] I.C.J. Rep. 99. Reading the two cases, the case of Jurisdictional Immunities of the State where the Court examined the question of jurisdiction proprio motu and the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, supra note 8, the learned Judge observed, “[i]n the two cases above, the question ratione temporis, in one way or another, was merged with the merits. In the former case, the temporal limitation of the compromissory clause was overcome by a narrow definition of the subject-matter of the dispute, while in the latter, validity in time of the title of jurisdiction was given [a] different interpretation. The objection ratione temporis was considered together with the admissibility of the claim” (at 202). At 202, n. 73, it was pointed out that the Court did not take into account art. 28 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980), which provides for the ratione temporis of a treaty which could have been applied to the Genocide Convention that did not have an express provision on ratione temporis.