"To Fall, or Not To Fall, That Is The (Preliminary) Question": Disputes, Compromissory Clauses and Swinging Jurisdictional Tests at The ICJ

The Law and Practice of International
Courts and Tribunals 21 (2022) 5–34

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“To Fall, or Not to Fall, That Is the (Preliminary)

Question”: Disputes, Compromissory Clauses and
Swinging Jurisdictional Tests at the ICJ
Marco Dimetto
Postdoctoral Researcher, Department of Public, International and EU Law,
University of Padova, Padova, Italy
marco.dimetto@unipd.it
Abstract
More and more frequently, states resort to the ICJ, claiming the violation of interna-
tional treaties and attempting to ground the jurisdiction of the Court on compromissory
clauses contained therein. Despite the growing number of such cases, an analysis of
recently rendered judgments on preliminary objections demonstrates that until now
the Court has been unable or unwilling to identify and apply a coherent jurisdictional
test to assess its jurisdiction ratione materiae. Some suggestions are formulated as for
the test that the Court should apply to determine whether the claims presented by the
applicant genuinely fall within the provisions of the international treaty containing
the compromissory clause vel non.
Keywords
ICJ – preliminary objections – dispute – jurisdiction ratione materiae – compromissory

clauses
1 Introduction
On the verge of the 75th anniversary of the International Court of Justice

(“ICJ”), the fact that its docket is busier than ever clearly signals not just the
vitality of the principal judicial organ of the United Nations but also its central-
ity among international courts and tribunals.
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In recent times, more and more frequently states unilaterally resorted to the
ICJ to settle legal disputes, and in the vast majority of recent instances appli-
cants attempted to ground the jurisdiction of the Court on compromissory
clauses couched in both bilateral and multilateral treaties.1 Not surprisingly,
more often than not respondents raised preliminary objections, claiming the
lack of jurisdiction of the Court, the inadmissibility of the claims and/or any
other shortcoming preventing the Court from deciding the dispute brought
before it.
Commenting on these recently instituted proceedings, some scholars have
warned that – in some of them – applicants decided to bring to the Court
claims under a treaty even if the “core” or the “crux” of the dispute fell out-
side that instrument,2 and this for multifaceted political reasons.3 In light of
that, and without discussing the strategies the Court could adopt (or should
adopt) to avoid the legal drawbacks of “decentred” disputes brought before
it,4 the goal of the present contribution is to analyse the ICJ’s case law, in
order to understand whether the Court has been able to shape a coherent
1 Seventeen contentious proceedings have been instituted since 2016. Excluding the request
for interpretation and the application for revision in the Sovereignty over Pedra Branca/Pulau
Batu Puteh, Middle Rocks and South Ledge case between Malaysia and Singapore, while two
proceedings were brought before the Court by notification of a special agreement, Land
and Maritime Delimitation and Sovereignty over Islands (Gabon/Equatorial Guinea) and
Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize), all the others were
instituted by means of an application indicating compromissory clauses in bilateral and mul-
tilateral treaties.
2 To borrow the terms from Callista Harris, “Claims with an Ulterior Purpose: Characterising
Disputes Concerning ‘the Interpretation or Application’ of a Treaty”, 18 The Law and
Practice of International Courts and Tribunals (2019), 279, 280–282. On the phenomenon
of “disaggregation of disputes” among different international judicial bodies, see Lawrence
Hill-Cawthorne, “International Litigation and the Disaggregation of Disputes: Ukraine/
Russia as a Case Study”, 68 International & Comparative Law Quarterly (2019), 779 ff.
3 Filippo Fontanelli, “Once Burned, Twice Shy. The Use of Compromissory Clauses before the
International Court of Justice and Their Declining Popularity in New Treaties”, 104 Rivista di
diritto internazionale (2021), 7, 13: “A limited vindication is better than no vindication at all,
and the possibility of rehearsing before the Court the entire dispute and its various aspects,
even to irk the Respondent and gain political leverage, can be attractive irrespective of the
actual possibility to obtain a remedy for each wrongful act alleged or discussed. Conversely,
Respondents must defend themselves for years in the public eye”. By the way, this is not break-
ing news altogether, see Christian J. Tams, “The Continued Relevance of Compromissory
Clauses as a Source of ICJ Jurisdiction”, in T. Giegerich (ed.), A Wiser Century? Judicial
Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace
Conference (2009), 461, 486.
4 Enzo Cannizzaro, Beatrice I. Bonafé, “Fragmenting International Law through Compromissory
Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case”, 16 The European
Journal of International Law (2005), 481, 495; for a more recent analysis, see Callista Harris,
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“ To Fall, or Not to Fall, That Is the ( Preliminary ) Question ” 7
test for establishing its jurisdiction ratione materiae in the preliminary objec-
tions phase.
After briefly recalling some relevant cases decided by the ICJ and its pre-
decessor, the Permanent Court of International Justice (“PCIJ”) (Sections 2
and 3), this article analyses some recent judgments on preliminary objections,
with the goal of demonstrating how the Court is still far from applying a coher-
ent jurisdictional test to determine its jurisdiction ratione materiae, at least
when the applicant’s claims concern a treaty (Section 4). Conclusions follow
(Section 5).
2 Relevant Cases Decided by the World Courts until 1996
The necessity of a jurisdictional test for determining whether the claims pre-
sented by an applicant state do “fall or not within the terms” of the provisions
of the instrument whose compromissory clause is invoked as the basis of juris-
diction appeared immediately after the institution of the PCIJ.5
In the Mavrommatis Palestine Concessions case of 1924, where the United
Kingdom had claimed that the dispute brought to the Court by Greece did
not concern the application or the interpretation of the Mandate,6 the Court
clarified that from a methodological point of view it could not be satisfied by
a mere “provisional conclusion that the dispute falls or not within the terms of
the Mandate” [italics added], but rather that it was necessary to establish in
a definitive way whether the dispute, “in the form in which it has been sub-
mitted and on the basis of the facts hitherto established”, was one of those
covered by the jurisdictional title alleged by the Applicant state.7 After hav-
ing thoroughly examined the scope of Article 11 of the Mandate, the provision
whose violation was claimed by Greece, the Court positively established its
“Incidental Determinations in Proceedings Under Compromissory Clauses”, 70 International

& Comparative Law Quarterly (2021), 417, 422 ff.
5 Malcolm N. Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015, Vol. II
(2016), 672, where it is highlighted that, despite having its origin in arbitration, since 1922
the compromissory clause made “great headway” thanks to the International Court. See
also Gabriele Salvioli, “La jurisprudence de la Cour permanente de justice international”, 12
Recueil des cours (1926), 5, 6, where the author stressed that the question of jurisdiction rati
one materiae was generally not a crucial one before arbitral tribunals, in light of the fact that
“[…] l’arbitrage eut comme trait caractéristique de surgir seulement par suite du concours
des volontés actuelles des deux États signataires du compromis […]”.
6 PCIJ, The Mavrommatis Palestine Concessions, Judgment, 30th August 1924, Series A, No. 2,
at 16.
7 Ibid.
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jurisdiction ratione materiae, because the Mandate determined that the pow-
ers of the United Kingdom were subject to the respect of all other international
obligations incumbent upon the Mandatory, among which the one of respect-
ing concessions stipulated before the 29th of October 1914.8
In the same vein, in 1925, in the Case concerning Certain German Interests
in Polish Upper Silesia, in which Poland objected that the dispute did not fall
within Article 23 of the Geneva Convention, the Court further clarified that
its material jurisdiction depended on whether “the clauses upon which the
decision on the Application must be based” were “amongst those in regard to
which the Court’s jurisdiction” was established.9 Admittedly, by conducting
such a careful analysis, the Court was aware of the risk to touch upon matters
belonging to the merits of the case, but this did not prevent the PCIJ from fol-
lowing this path.10
8 Ibid., at 26–27. Such a conclusion was harshly criticized by some dissenting judges. Among
them, it is worth mentioning Judge Finlay, who held that the dispute brought by Greece
had nothing to do with any provision of the Mandate, and that Article 11 of the Mandate
could not be read “as if it contained in extenso the provisions of the Protocol” (see PCIJ,
Series A, No. 2, at 43), and Judge Oda, who claimed that “the position as Mandatory has
no bearing on the conclusions to be drawn from the Protocol, since the relations cre-
ated by the Mandate, which exist as between the League of Nations and Great Britain
only, are not ipso facto applicable as between the Powers signatories to the Protocol” (see
PCIJ, Series A, No. 2, at 86). Analogous concerns were expressed in the legal literature (see
Edwin M. Borchard, “The Mavrommatis Concessions Cases”, 19 The American Journal of
International Law (1925), 728, 738: “Whether or not the majority or the minority view is the
more sustainable, it seems inadvisable […] to seek to enlarge by judicial construction the
obligatory jurisdiction of the court. It is well for a court which is still approached with a
certain caution, to avoid the maxim boni judicis est ampliare jurisdictionem”. For a detailed
account of the dynamics that led the PCIJ to adopt such a stance, see Ole Spiermann,
International Legal Argument in the Permanent Court of International Justice (2005),
193 ff.
9 PCIJ, Case concerning Certain German Interests in Polish Upper Silesia, Judgment, 25th August
1925, Series A, No. 6, at 15. See also the Observations by M. Anzilotti on One Point in
the Statement of Reasons (PCIJ, Series A, No. 6, at 30), where the Italian judge praised the
Court for having adopted – at least implicitly – the jurisdictional test previously elabo-
rated in the Mavrommatis Palestine Concessions case, which was considered by the judge
as perfectly coherent with the principles of international law which governed the Court’s
jurisdiction. Such a consideration was later restated in Dionisio Anzilotti, Cours de droit
international (1929), 119.
10 On this point, see Géza de Magyary, La juridiction de la Cour permanente de justice inter
nationale (1931), 226–227: “Le Tribunal, en examinant sa compétence, n’a pas à rechercher
si les faits, sur lesquels la requête est basée, sont en réalité vrais. Il n’a qu’à s’enquérir s’ils
renferment tous les éléments prescrits par la loi à l’égard de la compétence. Mais cette
nature de l’examen de la compétence n’exclut pas la preuve de certains faits spéciaux
prescrits pour la compétence”.
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The jurisdictional test applied by the PCIJ was a balanced one. Indeed,
while the Court had to be definitively convinced that the dispute brought to it
fell within the invoked treaty provisions,11 these provisions were broadly inter-
preted by the Court.12
A significantly different stance was adopted by the ICJ since the very first
years of its existence.13 In the Ambatielos case of 1953, Greece claimed that
the United Kingdom was under an obligation to “submit to arbitration a claim
by the Hellenic Government based on […] the Treaty of 1886”, which concerned
the validity of Mr. Ambatielos’ claims.14 After the Court positively assessed its
jurisdiction,15 on the merits it had to ascertain whether Mr. Ambatielos’ claims
were effectively based on the Treaty of 1886, because the existence upon the
United Kingdom of a duty to arbitrate depended on a positive outcome of such
ascertainment.16 According to the Court, it was sufficient to determine “[…]
whether the arguments advanced by the Helenic [sic] Government in respect
of the treaty provisions on which the Ambatielos claim is said to be based, are of
a sufficiently plausible character to warrant a conclusion that the claim is based
on the Treaty [italics added]”.17 The Court clearly opted for a jurisdictional test
more flexible than the one applied by the PCIJ,18 but one can surmise that
11 See Robert Kolb, The International Court of Justice (2013), 442, where the author holds that
the fact that the Court “needed to be convinced that the dispute truly fell within the scope
of the treaty provisions […] reflected the way in which the PCIJ was still obliged to show
its deference to States’ sovereignty and their sovereign wills”.
12 Ex multis Louis B. Sohn, “Settlement of Disputes Relating to the Interpretation and
Application of Treaties”, 150 Recueil des cours (1976), 19, 256–257; Jonathan I. Charney,
“Compromissory Clauses and the Jurisdiction of the International Court of Justice”, 81 The
American Journal of International Law (1987), 855, 870–871.
13 Jonathan I. Charney, “Compromissory Clauses”, supra note 12, 873 ff.
14 Ambatielos case ( Jurisdiction), Judgment of July 1st, 1952: I.C.J. Reports 1952, at 31.
15 Ibid., at 46.
16 Ambatielos case (Merits: obligation to arbitrate), Judgment of May 19th, 1953: I.C.J. Reports
1953, at 14.
17 Ibid., at 18.
18 For this reason, the Court was severely criticized in the Dissenting Opinion by Sir Arnold
McNair, President, and Judges Basdevant, Klaestad and Read, where they argued that:
“Before declaring a State to be bound to submit a dispute to the decision of an international
tribunal, the Permanent Court and the present Court have always considered it necessary
to establish positively, and not merely on prima facie or provisional grounds, that the State
in question had in some form given its consent to this procedure” (I.C.J. Reports 1953, at
29). It is also worth recalling the strongly worded criticism by Sir Gerald Fitzmaurice, who
acted in the case as advocate for the United Kingdom, according to which, despite having
adopted the “plausibility” criterion in abstract terms, the Court did not apply it in con-
crete, given that it limited itself to list “the two opposing sets of arguments” of the parties
(see Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice,

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it did so because the case at hand was different from the Mavrommatis case,
given that the Court was only called to decide “[…] whether a dispute should
be referred to another tribunal for arbitration”.19
However, instead of being isolated, this precedent was later upheld – even
if not verbatim, at least substantially – by the ICJ in several instances. In 1959,
in the Interhandel case, where Switzerland based its claims on the Washington
Accord of 1946, the Court stated that, in the preliminary objections phase, it was
sufficient to ascertain “whether the grounds invoked by the Swiss Government
are such as to justify the provisional conclusion that they may be of relevance
in this case” [italics added].20 Later on, in the judgment of 1984 in the Military
and Paramilitary Activities in and against Nicaragua case, the Court implicitly
adhered to its precedent, by stating that “in order to establish the Court’s juris-
diction over the present dispute under the Treaty, Nicaragua must establish
a reasonable connection between the Treaty and the claims submitted to the
Court” [italics added].21
As is well known, a significantly different and more meticulous approach
was adopted by the Court in 1996, in the Oil Platforms case.22 In the face of
Iranian allegations that the United States had violated Articles I, IV and X
of the 1955 Treaty of Amity, the United States claimed that “the Application of
Iran bears no relation to the Treaty of 1955”, and consequently that “the dispute
that has arisen between itself and Iran does not fall within the provisions of
Article XXI, paragraph 2, of the Treaty”.23
1951–4: Questions of Jurisdiction, Competence and Procedure”, 34 The British Yearbook of

International Law (1958), 1, 50).
19 Ambatielos case (Merits: obligation to arbitrate), supra note 16, at 14.
20 Interhandel Case, Judgment of March 21st, 1959: I.C.J. Reports 1959, at 24.
21 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, at 427, para. 81.
While inside the Court only one voice claimed that the FCN Treaty was utterly uncon-
nected to Nicaragua’s claims (see the Dissenting opinion of Judge Schwebel, I.C.J. Reports
1984, 628 ff., paras. 117 ff., where the judge maintained – without theoretically questioning
the “reasonable connection” test employed by the Court – that the Treaty had, also prima
facie, nothing to do with Nicaragua’s claims in the case (para. 124)), outside the Court, and
especially in US scholarship, several voices contested the jurisdictional holding by the ICJ
on the FCN Treaty (John N. Moore, “The Secret War in Central America and the Future
of the World Order”, 80 The American Journal of International Law (1986), 43, 93–94, who
claimed that “[…] the Court stretched its own jurisdiction beyond the breaking point”; see
also W. Michael Reisman, “Has the International Court Exceeded Its Jurisdiction?”, 80 The
American Journal of International Law (1986), 128, 130–133).
22 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1996, at 808.
23 Ibid., at 809, para. 14.
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As for the jurisdictional test to be applied, in an apparently anodyne way

the Court stated that its task was simply to ascertain whether the violations
of the Treaty of 1955 pleaded by Iran “do or do not fall within the provisions of
the Treaty” and, as a consequence, whether the dispute fell within its jurisdic-
tion ratione materiae.24 In fact, however, far from being satisfied by a plausible,
provisional or reasonable conclusion that the Iranian claims fell within the
1955 Treaty, the Court investigated in depth both the US measures lamented
by Iran and the above mentioned provisions.
In light of the fact that the expression “commerce” included in Article X of the
1955 Treaty covered also “ancillary activities integrally related to commerce”,25
and considering that the destruction of oil platforms was capable of affect-
ing the export trade of Iran,26 the Court concluded that its jurisdiction ratione
materiae covered the possible violation of Article X. Differently, and contrary
to the approach taken in the 1984 Military and Paramilitary Activities judgment
on jurisdiction and admissibility, the Court deemed that the actions carried
out by the United States against Iran could not be covered by Article I and
Article IV: the former was interpreted by the Court as not being able to pro-
duce any legal obligation incumbent upon the parties, but merely as fixing an
objective “in light of which the other Treaty provisions are to be interpreted
and applied”;27 the latter was intended as only dealing with the treatment, “fair
and equitable”, “by each party of the nationals and companies of the other
party, as well as their property and enterprises”, and therefore it could not lay
down any norms applicable to the case between Iran and the United States.28
For the very first and so far only time in its history, the ICJ positively estab-
lished its jurisdiction ratione materiae only in respect of the violation of
a single article of a treaty rather than with regard to the treaty as such. The
Court’s decision was praised by Judge Higgins in her Separate opinion, in
which she expressed satisfaction with the fact that the Court had finally clari-
fied, once and for all, that its jurisdiction – when based on a compromissory
clause – could not be found on “an impressionistic basis”.29 Elaborating on this
point, Judge Higgins also specified both the nature of the Court’s decision on
jurisdiction and the methodology used: as for the former, such a decision had
to be “definitive”; as for the second, it would not be sufficient “for the Court to
decide that it has heard claims relating to the various articles that are ‘arguable
24 Ibid., at 810, para. 16.

25 Ibid., at 819, para. 49.
26 Ibid., at 820, para. 51.
27 Ibid., at 814, para. 28.
28 Ibid., at 816, para. 36.
29 Oil Platforms, supra note 22, Separate opinion of Judge Higgins, at 855, para. 29.

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questions’ or that are ‘bona fide questions of interpretation’”, and not even that
a “reasonable connection” between the claims and the treaty exists.30
In this respect, Judge Higgins made the point that, “to warrant a conclu-
sion that the claim might be based on the Treaty”, while a “plausibility” test
per se would not be sufficient, the Court has to accept “pro tem [sic] the facts as
alleged by Iran to be true and in that light [has to interpret] Articles I, IV and X
for jurisdictional purposes – that is to say, to see if on the basis of Iran’s claims
of fact there could occur a violation of one or more of them”.31 According to
Judge Higgins, such an approach in no way could harm the Court’s duty to keep
separate the jurisdictional and merits phases: indeed, Judge Higgins admit-
ted that “any definitive decision that even on the facts as described by Iran
no breach of a particular article could follow, does ‘affect the merits’ in the
sense that that matter no longer may go to the merits”, but that would not be
problematic, since the task of the Court for the merits “is to determine what
exactly the facts are, whether as finally determined they do sustain a violation
of […]” the invoked provisions.32 Finally, Judge Higgins closed her opinion by
remarking that the Court had no judicial policy “of being either liberal or strict
in deciding the scope of compromissory clauses”, thus excluding the existence
of “a jurisdictional presumption in favour of the plaintiff”.33
Opposite to Judge Higgins, the judgment was sharply criticized by Judge
Shahabuddeen in his Separate opinion.34 Quoting the Ambatielos judgment,
he claimed that the proper jurisdictional test remained the one of sufficient
plausibility.35 With regard to the interpretation of the relevant treaty provi-
sions, Judge Shahabuddeen clarified that no definitive interpretation could be
made in the preliminary objections phase, and that all that could be demanded
of the Applicant was to make an arguable case.36
30 Ibid., para. 31.

31 Ibid., at 856, para. 32.
32 Ibid., at 856–857, para. 34.
33 Ibid., at 857, para. 35.
34 Oil Platforms, supra note 22, Separate opinion of Judge Shahabuddeen, at 824 ff.
35 Ibid., at 824. See also at 833: “The Court can only hold that the Applicant’s construction is
not ‘arguable’, or that it is not ‘sufficiently plausible’, or that the Treaty is not ‘of relevance’
to the claim, or that the claim lacks ‘serious juridical basis’, or that the corresponding
criterion set by other similar formulation is met, if, from the point of view of an informed
legal mind, it finds that the construction relied on is not based on rational and reasonably
arguable grounds […]”.
36 Ibid., at 827.
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3 The Case Law of the ICJ from 1996 to 2017
While it is undeniable that in the Oil Platforms case the Court resorted to
a revirement,37 the “Higgins test” came later to be seen as the standard test
applied by the ICJ.38 Upon closer examination, however, after the Oil Platforms
judgment, the Court seemed to have abandoned any explicit reference to any
plausible, provisional or reasonable conclusion test in its preliminary objec-
tions judgments. Actually, since then the ICJ has omitted tout court any explicit
reference to any specific methodology whatsoever.
In most cases, this happened because the Court, instead of focusing on the
question whether the applicant’s claims fell or did not fall within the scope of
the jurisdictional basis, shifted its attention to the question of the existence
of a dispute having a clearly defined content in relation to the jurisdictional
title invoked by the applicant. In all these cases, the positive ascertainment
of the existence of a dispute related to the international instrument invoked
in the requête rendered to a certain extent superfluous the analysis of whether
the applicant’s claims did fall within the jurisdictional title.
In the Lockerbie cases of 1998, both the United Kingdom39 and the United
States40 denied that the destruction of the Pan Am aircraft over Lockerbie
gave rise to a dispute falling within the scope of Article 14 of the Montreal
Convention. Not surprisingly, the Court, also on the basis of the fact that both
the United Kingdom and the United States did not deny “that, as such, the facts
37 See Christian Tomuschat, “Article 36”, in A. Zimmermann et al. (eds.), The Statute of the
International Court of Justice: A Commentary (3rd edition, 2019), 712, 757, where the author
too easily disposes of the Court’s revirement by stating that “[o]bviously conscious of the
fact that this threshold [that one of ‘reasonable connection’ employed in Military and
Paramilitary Activities] was fairly low, in the Oil Platforms case the Court adopted another
formula, which may be considered a return to the Mavrommatis test […]”.
38 Ex multis Alain Pellet, “The Case Law of the ICJ in Investment Arbitration”, 28 ICSID
Review (2013), 233, 237 ff.; Michele Potestà and Marija Sobat, “Frivolous Claims in
International Adjudication: A Study of ICSID Rule 41(5) and of Procedures of Other
Courts and Tribunals to Dismiss Claims Summarily”, 3 Journal of International Dispute
Settlement (2012), 137, 154; Carlotta Ceretelli, “Abuse of Process: An Impossible Dialogue
Between ICJ and ICSID Tribunals?”, 11 Journal of International Dispute Settlement (2020),
47, 56.
39 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, I.C.J. Reports 1998, at 17, para. 21.
40 Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States), Preliminary
Objections, Judgment, I.C.J. Reports 1998, at 122, para. 20.

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of the case could fall within the terms of the Montreal Convention”,41 could not
but conclude that a dispute falling within the scope of Article 14, paragraph 1,
of the Montreal Convention did exist, in light of the content of the notes
exchanged between the parties before the institution of the proceedings.42
More relevant is the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination case between Georgia and
Russia. In its 2011 judgment on preliminary objections, the Court developed
a detailed analysis of the exchanges between the parties to assess whether a
dispute under Article 22 of the CERD existed,43 and came to the conclusion
that such a dispute had indeed arisen some days before the seisin, i.e. in
August 2008.44 However, the Court did not proceed further because the condi-
tions established by Article 22 CERD had not been satisfied.45
The apex of this trend was reached by the Court in the 2016 preliminary
objections judgments in the Marshall Islands cases, where in an unprec-
edented move the Court closed all the proceedings because of the lack of a
dispute before the institution of the proceedings between the Applicant and
its “unaware” Respondents.46
41 Questions of Interpretation and Application of the 1971 Montreal Convention, supra note 39,
at 18, para. 24; Questions of Interpretation and Application of the 1971 Montreal Convention,
supra note 40, at 123, para. 23.
42 Jean-Marc Sorel, “Les arrêts de la C.I.J. du 27 février 1998 sur les exceptions préliminaires
dans les affaires dites de Lockerbie: et le suspense demeure”, 102 Revue Générale de Droit
International Public (1998), 685, 697–699.
43 Application of the International Convention on the Elimination of All Forms of Racial Dis
crimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, at 81 ff.
44 Ibid., at 120, para. 113. The decision of the Court was highly criticized by the minority
judges, who believed that a dispute concerning application of CERD did exist well before
the seisin of the Court and criticized the majority for having adopted a too formalistic
approach in light of “[…] the way in which the facts put forward by Georgia are dealt with
in the Judgment to support the Court’s conclusion that there was no dispute correspond-
ing to the subject of the Application […]” (Application of the International Convention on
the Elimination of All Forms of Racial Discrimination, supra note 43, Joint dissenting opin-
ion of President Owada, Judges Simma, Abraham and Donoghue and Judge ad hoc Gaja,
at 143, para. 4).
45 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination, supra note 43, at 140, para. 184.
46 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, at 276, para. 52; Obligations concerning Negotiations relat
ing to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands
v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, at 571, para. 48;
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
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In a few other cases, the question of the existence of a dispute took a back
seat in the reasoning of the Court, but nevertheless the Court was unclear
about the criteria applied to assess its jurisdiction ratione materiae. So, in the
case concerning Armed Activities on the Territory of the Congo, the Democratic
Republic of the Congo instituted proceedings against Rwanda founding the
Court’s jurisdiction on compromissory clauses included in eight different mul-
tilateral treaties.47 Without commenting here on the Court’s analysis on each
jurisdictional title, it is noteworthy that the Court dismissed them all, without
spending a single word on the jurisdictional test to be applied.
4 Swinging Jurisdictional Tests in Five Recent Cases (2018–2021)
Notwithstanding the widespread idea that the Court coherently applies

the “Higgins test” to assess its jurisdiction ratione materiae, some recent
to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,

Judgment, I.C.J. Reports 2016, at 854, para. 52. Several authors believed that, by introduc-
ing the “awareness” criterion, the Court unduly heightened the threshold for establishing
the existence of a dispute (ex multis see Lorenzo Palestini, “Forget About Mavrommatis
and Judicial Economy: The Alleged Absence of a Dispute in the Cases Concerning the
Obligations to Negotiate the Cessation of the Nuclear Arms Race and Disarmament”, 8
Journal of International Dispute Settlement (2017), 557, 575; Vincent-Joël Proulx, “The
World Court’s Jurisdictional Formalism and its Lost Market Share: The Marshall Islands
Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral
Disputes”, 30 Leiden Journal of International Law (2017), 925, 930; Michael A. Becker,
“The Dispute That Wasn’t There: Judgments in the Nuclear Disarmament Cases at the
International Court of Justice”, 6 Cambridge International Law Journal (2017), 4, 26;
Beatrice I. Bonafé, “Establishing the Existence of a Dispute Before the International Court
of Justice”, Questions of International Law Zoom-out 45 (2017), 3, 20 ff.). However, these
criticisms miss the fact that “a dispute between two parties, one of whom has no idea
that there exists any such dispute, is a self-contradictory concept” (as aptly observed by
Hugh W.A. Thirlway, “Establishing the Existence of a Dispute: A Response to Professor
Bonafé’s Criticisms of the ICJ”, Questions of International Law Zoom-out 45 (2017), 53,
58; see also Aniruddha Rajput, “Necessity of ‘Objective Awareness’ for the ‘Existence of
Dispute’”, 58 Indian Journal of International Law (2018) 85, 98).
47 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, at 16,
para. 15: “In order to found the jurisdiction of the Court in this case, the DRC relies in its
Application on a certain number of compromissory clauses in international conventions,
namely: Article 22 of the Convention on Racial Discrimination; Article 29, paragraph 1, of
the CEDAW; Article IX of the Genocide Convention; Article 75 of the WHO Constitution;
Article XIV, paragraph 2, of the UNESCO Constitution and Article 9 of the Convention
on Privileges and Immunities of the Specialized Agencies; Article 30, paragraph 1, of the
Convention against Torture; and Article 14, paragraph 1, of the Montreal Convention”.

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preliminary objections judgments rendered by the Court demonstrate that

this is not actually the case. Rather, the Court has shown some ambiguity in
dealing with compromissory clauses, in so far as, as will be demonstrated here,
it has reached different outcomes in analogous situations.
4.1 Immunities and Criminal Proceedings (2018)

In 2016, Equatorial Guinea instituted proceedings against France requesting the
Court to settle a dispute concerning the violation by France of the immunity of
Mr. Mangue, Second Vice-President of the Republic of Equatorial Guinea, and
of the immunity of the building housing the Embassy of Equatorial Guinea
in Paris.48 These violations allegedly occurred within the framework of crimi-
nal proceedings conducted by the French judicial authorities in Paris against
Mr. Mangue.
The Applicant had indicated as bases of jurisdiction both Article 35 of the
2000 United Nations Convention against Transnational Organized Crime
(hereinafter, “Palermo Convention”) and Article I of the 1961 Optional Protocol
to the Vienna Convention on Diplomatic Relations. As for the first, Equatorial
Guinea argued that its claims fell within the Palermo Convention because
Article 4 of that instrument, entitled “Protection of sovereignty”, imposes
upon states an autonomous obligation to respect the customary international
rules relating to state immunities and state officials.49 Despite conceding
that the term “shall” under Article 4 imposes an obligation upon states par-
ties to the Palermo Convention, the Court stated that such a provision does
not refer to “the customary international rules, including state immunity,
that derive from sovereign equality but to the principle of sovereign equality
itself”.50 That debatable conclusion, which the Court buttressed through a ref-
erence to the travaux préparatoires of the Convention, deprived the Court of
its material jurisdiction with regard to this aspect of the dispute.51
48 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,

Judgment, I.C.J. Reports 2018, at 297, para. 1.
49 Ibid., at 318, para. 78. Article 4 of the Palermo Convention states that “1. States Parties shall
carry out their obligations under this Convention in a manner consistent with the prin-
ciples of sovereign equality and territorial integrity of States and that of non-intervention
in the domestic affairs of other States. 2. Nothing in this Convention entitles a State Party
to undertake in the territory of another State the exercise of jurisdiction and performance
of functions that are reserved exclusively for the authorities of that other State by its
domestic law”.
50 Ibid., at 321, para. 93.
51 Ibid., at 323, para. 102.
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It is not clear which jurisdictional test, if any, the Court applied, and it seems
that the drastic solution chosen by the Court was excessively severe.52 As dem-
onstrated by several dissenting judges, indeed, the conclusion reached by the
Court with regard to the relevance and effects on the treaty obligations of the
principle of sovereign equality was not only just one among different possible
conclusions, but possibly the wrong one.53
Even some majority judges – in their declarations and opinions – differed
from the reasoning of the Court, or criticized it outrightly. Thus, while Judge
Owada introduced the not so obvious distinction between the establish-
ment of domestic criminal jurisdiction, a matter regulated by the Palermo
Convention, and the actual exercise of that jurisdiction, a matter allegedly
outside the Convention,54 Judge Gevorgian probably went too far in claiming
that the institution of proceedings by Equatorial Guinea constituted a mis-
use of the compromissory clause of the Palermo Convention, in so far as the
Applicant had artificially linked “a dispute concerning an incidental point of
international law with the substantive provisions” of the Convention.55 More
soundly, but still debatably, Judge Abraham – who found the Court’s reasoning
“needlessly complicated, at times rather obscure, and even, in certain respects,
legally flawed”56 – argued that Article 4 was just a “non prejudice clause”, an
instrument aiming to preserve obligations existing outside the Convention,
which cannot serve as a jurisdictional basis for disputes on them.57
52 Contra, Marine They, “Fin de la phase préliminaire dans l’affaire des ‘Biens mal acquis’
opposant la Guinée équatoriale et la France devant la Cour internationale de Justice
(arrêt du 6 juin 2018)”, 64 Annuaire français de droit international (2018), 277, 287.
53 Immunities and Criminal Proceedings, supra note 48, Joint dissenting opinion of Vice-
President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka, at 350, para. 33:
“In light of the object and purpose of the Convention, Article 4 (1) should be interpreted as
requiring States parties to carry out their obligations under the Convention in a manner
consistent with the customary rules governing State immunity, reflected in the principle
of sovereign equality of States, in order to achieve the co-operation necessary to combat
transnational organized crime. Consequently, the application of the customary rules of
foreign State immunity as conventional obligations is related to the stated object and
purpose of the Palermo Convention”. See also ibid., at 354, para. 44: “The plain reading of
Article 4 (1) is that a State party, in carrying out its obligations under the Convention, is
bound to respect the rules of State immunity as an expression of the principle of sover-
eign equality”.
54 Immunities and Criminal Proceedings, supra note 48, Declaration of Judge Owada, at 369,
para. 13.
55 Immunities and Criminal Proceedings, supra note 48, Separate opinion of Judge Gevorgian,
at 396, para. 9.
56 Immunities and Criminal Proceedings, supra note 48, Separate opinion of Judge Abraham,
at 373, para. 2.
57 Ibid., at 377, para. 16.

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4.2 Certain Iranian Assets (2019)

In 2016, after the United States amended its domestic legislation allowing
execution by private creditors on assets belonging to the Central Bank of
Iran (“Bank Markazi”), Iran instituted proceedings against the United States
requesting the Court to ascertain that acts based on the above mentioned leg-
islation violated both international customary law on sovereign immunity and
the 1955 Treaty of Amity provisions affording legal protection to companies
of the other contracting party. As for all other proceedings between Iran and
the United States, the only basis of jurisdiction was Article XXI, paragraph 2,
of the 1955 Treaty.58
As for the first aspect of the dispute, building on the precedent of the
Immunities and Criminal Proceedings case, the Court rejected the Iranian argu-
ments, according to which the 1955 Treaty largely incorporated the norms of
international law on immunities or that, at least, the interpretation and appli-
cation of the Treaty provisions necessarily entailed consideration of states’
immunity under international law, and concluded that none of the provisions
invoked by the Applicant was “capable of bringing within the jurisdiction of
the Court the question of the United States’ respect for the immunities to
which certain Iranian state entities are said to be entitled”.59 Dissenting judges
contested such a decision of the Court by resorting to arguments analogous to
those used by the dissenting judges in the Immunities and Criminal Proceedings
case,60 although it seems that in the present case the Court’s position was more
solid than in the previous one, given the absence in the 1955 Treaty of a provi-
sion similar to Article 4 of the Palermo Convention.
As for the second aspect of the dispute, the United States claimed that
Articles III, IV or V of the Treaty could not afford legal protection to Bank
Markazi, in light of the fact that such provisions only covered “companies” of
the other contracting party and this was not the case of Bank Markazi, in light
of the fact that it carried out exclusively sovereign functions.61 Despite the
silence of the treaty on such a criterion, the Court stuck to the strict US inter-
pretation that “an entity carrying out exclusively sovereign activities, linked to
the sovereign functions of the state, cannot be characterized as a ‘company’
within the meaning of the Treaty”.62 At the same time, however, the Court
58 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, at 15 ff.
59 Ibid., at 34, para. 80.
60 Certain Iranian Assets, supra note 58, Separate opinion of Judge Robinson, at 55 ff.; Certain
Iranian Assets, Separate opinion of Judge Gevorgian, at 62 ff.
61 Certain Iranian Assets, supra note 58, at 35, para. 82.
62 Ibid., at 38, para. 91.
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found not to have – at that stage of the proceedings – enough facts at its dis-
posal to determine whether Bank Markazi carried out also activities different
from the sovereign ones, and for this reason it concluded that the US prelimi-
nary objection did not possess an exclusively preliminary character.63
Judges Tomka and Crawford in their Joint separate opinion contested the
Court’s decision to find the US preliminary objection as not having an exclu-
sive preliminary character.64 Indeed, they maintained that the Court had
already all information necessary to decide on whether Bank Markazi was
a “company”: according to the two judges, such a decision did not require a
previous ascertainment of the nature of the Bank’s activities, given that the
definition of “company” provided for by Article III, paragraph 1, of the 1955
Treaty did not mention “activities” as a criterion for determining whether an
entity is a company for the purposes of the Treaty.65 More explicitly, Judge
Gaja in his Declaration stated that the Court, at that stage of the proceed-
ings, had only to “ascertain that a reasonable case has been made that Bank
Markazi enjoys rights under Articles III, IV or V of the Treaty and that these
rights may have been violated”: according to Judge Gaja, that threshold had
been reached.66 Judge’s Gaja Declaration is particularly interesting, because it
explicitly endorses the “reasonable case” test, which the Court seems to have
abandoned in its late judgments.
4.3 Application of the ICSFT and of CERD (2019)

Following the events occurred in eastern Ukraine and Crimea since Spring
2014, in 2017 Ukraine instituted proceedings against Russia claiming the viola-
tion of several provisions of the International Convention for the Suppression
of the Financing of Terrorism (“ICSFT”) and of the International Convention on
the Elimination of All Forms of Racial Discrimination (“CERD”).67 Unsurprisingly,
Russia argued that the dispute concerned matters “unconnected to the two
conventions relied [on] by the Applicant” and that the proceedings constituted
a pretext to bring to the ICJ a much broader dispute, involving the application
of “different rules of international law”. Such a contention was easily dismissed
63 Ibid., at 40, para. 97.

64 Certain Iranian Assets, supra note 58, Joint separate opinion of Judges Tomka and
Crawford, at 46 ff.
65 Ibid., at 50–51, para. 10.
66 Certain Iranian Assets, supra note 58, Declaration of Judge Gaja, at 52, para. 1.
67 Application of the International Convention for the Suppression of the Financing of Ter
rorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2019, at 575.

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by the Court, which moved to the analysis of the question whether it had
jurisdiction ratione materiae under Article 24, paragraph 1 ICSFT and under
Article 22 CERD.
As for the first jurisdictional basis invoked by Ukraine, it is interesting to note
that the Court was openly required to clarify the jurisdictional methodology
to be applied. Indeed, while Russia had argued that “the Court must inter-
pret the key provisions of the relevant treaty and ‘[s]atisfy itself that the facts
pleaded and the evidence relied on by the Applicant state plausibly support
the asserted characterisation of its claims’ as claims under the treaty [italics
added]”,68 Ukraine considered that, to that end, the Court “must provisionally
assume that the facts alleged by Ukraine are true”, i.e. that “it must therefore
accept them pro tempore”.69 Without taking a clear stance on the point, and
omitting any reference to its 2018 judgment in the Immunities and Criminal
Proceedings case, the Court limited itself to state that “an examination by the
Court of the alleged wrongful acts or of the plausibility of the claims is not gen-
erally warranted” and affirmed that its task was just to “consider the questions
of law and fact that are relevant to the objection to its jurisdiction”.70
In order to assess whether Article 24, paragraph 1, of the ICSFT could found
its jurisdiction, the Court highlighted that the ICSFT imposes obligations
on states parties to implement “effective measures for the prevention of the
financing of terrorism, as well as for its suppression through the prosecution
and punishment of its perpetrators”.71 Moreover, the Court clarified that the
offences to be criminalized under the Convention are only those in which
the offender provides funds “‘with the intention that they should be used or
in the knowledge that they are to be used’ to commit an act of terrorism”.72 In
light of the fact that the existence of the requisite of the “intention” or “knowl-
edge” raised complex issues of fact, which were a matter for the merits, the
Court rejected Russia’s objection and positively affirmed its jurisdiction.
The Court followed a similar path in assessing its jurisdiction under
Article 22 of CERD. Here again, the Court endeavoured to set out its methodol-
ogy. Indeed, it clarified that it did not need “to satisfy itself that the measures of
which Ukraine complains actually constitute ‘racial discrimination’ within the
meaning of Article 1, paragraph 1, of CERD”, and not even to “establish whether,
and if so, to what extent, certain acts may be covered by Article 1, paragraphs 2
68 Ibid., at 579, para. 40.

69 Ibid., at 582, para. 47.
70 Ibid., at 584, para. 58.
71 Ibid., at 585, para. 59.
72 Ibid., at 586, para. 63.
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and 3, of CERD”.73 On the contrary, after recalling that both parties agreed that
“Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups
protected under CERD”,74 the Court highlighted that the substantive provi-
sions whose violation was invoked by Ukraine were broadly defined and, for
this reason, the Russian measures of which Ukraine complained were “capable
of having an adverse effect on the enjoyment of certain rights protected under
CERD”, a circumstance which positively founded the Court’s jurisdiction.75
All in all, it seems that the Court applied a quite relaxed jurisdictional test,
in so far as it appeared satisfied that a possible broad interpretation of some
substantive provisions included in the international instruments invoked by
Ukraine covered the Russian conduct,76 without even taking into account the
opportunity of qualifying the Russian objection as not having an exclusively
preliminary character, an option which – at least with regard to the ICSFT –
would have seemed more warranted.
4.4 Alleged Violations of the 1955 Treaty (2021)

In 2018, Iran instituted new proceedings against the United States claim-
ing the unlawfulness of the sanctions enacted by the Respondent, after the
US Administration had decided to withdraw from the Joint Comprehensive
Plan of Action (“JCPOA”), an international instrument concerning the nuclear
programme of Iran.77 Again, Iran indicated as a basis of jurisdiction the com-
promissory clause in the 1955 Treaty of Amity, and claimed that the above
mentioned sanctions were unlawful under that Treaty.
73 Ibid., at 595, para. 94.

74 In this regard, it has been claimed that the Court performed “une analyse […] consensuelle
du champ d’application matériel de la CIEDR” (Emmanuel Bourdoncle, “CIJ, Application
de la convention internationale pour la répression du financement du terrorisme et de la
convention internationale sur l’élimination de toutes les formes de discrimination raciale
(Ukraine c. Fédération de Russie), exceptions préliminaires, arrêt du 8 novembre 2019:
étape ou répétition avant le fond?”, 65 Annuaire français de droit international (2019),
183, 189).
75 Application of the International Convention for the Suppression of the Financing of Ter
rorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination, supra note 67, at 595, para. 96.
76 This is the reason why the Court’s reasoning was criticized by Judge Tomka (Application
of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (supra
note 67), Separate opinion of Judge Tomka, at 616, paras. 6–7 and at 618, paras. 12–13).
77 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment,
3 February 2021, not yet published in the I.C.J. Reports, at para. 24.

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After dismissing the US objection that the “real” subject-matter concerned

the JCPOA and not the 1955 Treaty, the Court took into account the second
preliminary objection raised by the United States, i.e. that the majority of sanc-
tions concerned “trade or transactions of Iran (or its companies and nationals)
with third countries (or their companies and nationals)” and, therefore, that
they were outside the scope of the 1955 Treaty, given that that instrument cov-
ered only the commercial and financial relations between the United States
and Iran.78
The Court started by recalling its by now established formula, according to
which, at that stage of the procedure, it had to ascertain “whether the acts of
which the Applicant complains fall within the provisions of the treaty con-
taining the compromissory clause”.79 Nevertheless, the Court adopted again a
relaxed jurisdictional test and considered that “the fact that some of the mea-
sures challenged […] directly target third states or the nationals or companies
of third states does not suffice for them to be automatically excluded from the
ambit of the Treaty”, and that “only through a detailed examination of each of
the measures in question, of their reach and actual effects” the Court could
determine whether they fell within the scope of the 1955 Treaty provisions.80
For this reason, the Court concluded that the US objection raised legal and
factual questions which were “properly a matter for the merits”.81
In his Declaration, Judge Tomka observed that, in adopting such a loose
test, the Court departed from its 1996 precedent, where “the Court devoted
no less than 27 paragraphs to a detailed analysis of Article I, Article IV,
paragraph 1, and Article X, paragraph 1, of the Treaty, inquiring whether the
acts complained of were capable of falling within the scope of the provisions
invoked by the Applicant”,82 and also from the 2019 judgment in the Certain
Iranian Assets case, seen above.83 As a consequence, Judge Tomka called for a
stricter approach by the Court, highlighting what in his view would be the risks
of adopting a more relaxed one.84
78 Ibid., at para. 62.

82 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights,
supra note 77, Declaration of Judge Tomka, para. 7.
84 Ibid., at para. 12: “If, at the merits stage of the proceedings, the Court comes to the
conclusion that the provisions relied on by Iran do not provide it (and its nationals or
companies) with a right not to have its trade, commercial or financial relations with third
States (and their nationals or companies) interfered with, the logical conclusion should
be that Iran’s claims do not fall within those provisions and therefore the Court lacks
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4.5 Application of CERD (2021)

In 2018, Qatar instituted proceedings against the United Arab Emirates
requesting the Court to ascertain that the Respondent had violated several
CERD provisions as a consequence of the adoption of several discriminatory
measures targeting Qatari nationals, and indicated Article 22 of that conven-
tion as a jurisdictional basis.85
According to Qatar, indeed, the definition of “racial discrimination” con-
tained in Article 1, paragraph 1, of CERD covered also measures which had the
purpose or the effect of discriminating on the basis of “nationality”, given that
such a concept was encompassed in the concept of “national origin”, provided
for in the above mentioned provision.86 On the contrary, the UAE claimed that
the measures complained of by the Applicant could not fall within the scope
of CERD because the concept of “nationality” was different from the one of
“national origin” and that, for this reason, Qatar’s claims concerning UAE mea-
sures based exclusively on “nationality” fell outside the scope of CERD.87 At
the end of its analysis, the Court reached the conclusion that discriminatory
measures based on “national origin” do not include those based on current
“nationality”, in light of the different nature of these two concepts.88
Without elaborating on the subtlety of this distinction,89 it is clear that it is apt
at excluding from the Court’s jurisdiction only acts of “direct discrimination”,
jurisdiction. However, such a conclusion is foreclosed by today’s Judgment rejecting the

second preliminary objection. In such hypothesis, the Court would be left with only one
option – to conclude that there was no breach of the provisions invoked since they do not
provide for the right claimed by Iran”.
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment,
4 February 2021, not yet published in the I.C.J. Reports, paras. 43 ff.
87 Ibid., at paras. 51 ff.
89 It is noteworthy that the decision reached by the Court on the relationship between
“national origin” and “nationality” radically clashed with the content of the CERD
Committee’s General Recommendation XXX, where it was held that “differential
treatment based on citizenship or immigration status will constitute discrimination if
the criteria for such differentiation, judged in light of the objectives and purposes of the
Convention, are not applied pursuant to a legitimate aim, and are not proportional to
the achievement of this aim” (ibid., at para. 100). Before the Court rendered its deci-
sion, some scholars had taken into account the possibility of a clash of views between
the ICJ and the CERD Committee. On the one hand, it was maintained that a collision
between the two UN organs should be avoided (Carlotta Ceretelli, “Abuse of Process”,
supra note 38, at 66: “The perspective of two organs of the UN system, namely the CERD
Committee and the Court, offering two opposite solutions of the same dispute could
have a harmful impact on international relations […]”); on the other, it was stressed

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i.e. measures which expressly distinguish on the basis of one of the grounds
of racial discrimination, but not those of “indirect discrimination”, equally
lamented by Qatar, in which “a measure results in such a distinction by effect”.90
However, without providing any further argument, the Court extended the
conclusions reached with regard to acts of “direct discrimination” to those of
“indirect discrimination”, claiming that “even if the measures of which Qatar
complains in support of its ‘indirect discrimination’ claim were to be proved
on the facts, they are not capable of constituting racial discrimination within
the meaning of the Convention”.91
This questionable move by the Court was strongly criticized by some judges.
According to Judge Sebutinde, indeed, “the majority simply carried out an aca-
demic discussion of the terms ‘current nationality’ and ‘national origin’ but has
clearly not examined the detailed evidence adduced by the Applicant in sup-
port of its claim of ‘indirect discrimination’”.92 In the same vein, Judge Iwasawa
correctly held that “if differentiation of treatment based on current national-
ity has an unjustifiable disproportionate prejudicial impact on an identifiable
group distinguished by ‘race, colour, descent, or national or ethnic origin’, it
constitutes racial discrimination within the meaning of Article 1, paragraph 1,
of CERD”.93 In light of the factual implications raised by the UAE preliminary
objection with regard to acts of “indirect discrimination”, both judges claimed
that the objection did not possess an exclusively preliminary character.94
that the occurrence of different interpretations by different bodies of the same provi-
sions is not infrequent, and even normal, in every legal system (Emanuele Cimiotta,
“Parallel Proceedings before the International Court of Justice and the Committee on the
Elimination of Racial Discrimination”, 19 The Law and Practice of International Courts and
Tribunals (2020), 388, at 412: “Incompatible interpretations are a functional likelihood in
every legal system, since many legal rules are subject to being interpreted in a number of
different, if not contradictory, ways”).
Discrimination (Qatar v. United Arab Emirates), supra note 85, para. 109.
Discrimination (Qatar v. United Arab Emirates), supra note 85, Dissenting opinion of Judge
Sebutinde, at para. 20.
Discrimination (Qatar v. United Arab Emirates), supra note 85, Separate opinion of Judge
Iwasawa, at para. 59.
Sebutinde, at para. 23; Separate opinion of Judge Iwasawa, at para. 72.
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Other judges were even more severe. In the opinion of President Yusuf,
whether the UAE’s measures amounted to de facto racial discrimination was
merely a question of fact that should have been addressed at the merits phase,
and not as a tool “to justify a finding that the measures complained of by Qatar
fall outside of the scope of the jurisdiction of the Court”.95 Even more critically,
Judge Robinson stated that “in its reasoning, the majority does not even pause
to identify and examine the factual circumstances cited by Qatar as giving rise
to discrimination by effect on the basis of national origin”, and that “if there is
an inherent element in these measures that renders them incapable of result-
ing in discrimination by effect on the basis of national origin, the majority has
not identified it”.96
4.6 Some Observations on the Recent Case Law

As for the methodology applicable in the assessment of its jurisdiction ratione
materiae in the preliminary objections phase, the Court seems to have fixed
itself on the mantra that at that stage of the proceedings its task is solely to
ascertain whether the applicant’s claims “do or do not fall within the provisions
of the Treaty”, whose compromissory clause is invoked as a valid jurisdictional
basis. By abandoning every reference to the “provisional conclusion”, “sufficient
plausibility” or “reasonable connection” tests, manifestly employed in the old-
est case law, the Court has undoubtedly raised the threshold the applicant has
to overcome in order to demonstrate the Court’s jurisdiction ratione materiae.
Quite paradoxically, however, instead of bringing more clarity, it seems that
this change has brought more uncertainties. So far, indeed, the Court has not
been able to shape a coherent and uniform jurisdictional test and this is dem-
onstrated by the swinging approaches recently adopted by the Court, which
have been illustrated both with regard to treaty interpretation and to consider-
ation of facts in the preliminary objections phase.
As seen above, with regard to treaty interpretation, in some cases the test
applied by the Court was unjustifiably strict. This is evident in the Immunities
and Criminal Proceedings case, between Equatorial Guinea and France, where
the Court drastically excluded the relevance of the Palermo Convention,
which on the contrary, and more plausibly, could have been relevant, basing its

Discrimination (Qatar v. United Arab Emirates), supra note 85, Declaration of President
Yusuf, at paras. 16–18.
Robinson, at para. 27.

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conclusion solely on a debatable interpretation of Article 4. The same applies

to the Application of the CERD case between Qatar and the UAE, where the
Court excluded its material jurisdiction over some of Qatar’s claims on the
basis of a mechanical application of the concept of “national origin”, couched
in Article 1, paragraph 1, of CERD.
In some other cases, the approach of the Court seems to have been more
relaxed, in that the Court was apparently satisfied that, generally speaking, the
substantive provisions of the treaty containing the jurisdictional title invoked
by the applicant were of relevance, such as in the Application of the ICSFT and
CERD case, between Ukraine and Russia, where the Court affirmed its jurisdic-
tion under both Conventions apparently in light of the broad formulation of
the provisions whose violation was claimed by Ukraine.
Even more problematic are the varying approaches shown by the Court
when considering facts which are claimed to have a bearing on its jurisdic-
tion ratione materiae, when those facts are considered still not proven or
unclear in the preliminary objections phase. In the Application of the ICSFT
and CERD case, between Ukraine and Russia, considering that the existence
of the requisite of “intention” or “knowledge” raised complex issues of fact,
the Court simply affirmed its jurisdiction, rejecting the Russian objection.
In the same vein, in the Alleged Violations of the 1955 Treaty case, between
Iran and the United States, the Court held that the question of “third coun-
try measures” was “properly a matter for the merits”, and thus rejected the
US objection. Differently, in the Certain Iranian Assets case, between Iran
and the United States, opting for a middle way, the Court considered that
it did not have enough facts to determine whether Bank Markazi could be
qualified as a “company”, and it concluded that the US preliminary objec-
tion did not possess an exclusively preliminary character. Finally, and with
serious consequences, the Court omitted tout court to consider the relevance
of facts in the Application of CERD case, between Qatar and the UAE, thus
excluding from its jurisdiction measures that could (or better should) have
fallen into it.
5 Back to the Old but Still Gold “Reasonable” Jurisdictional Test
After having abandoned the “old” and more relaxed jurisdictional test, until
now the Court has been unable to coherently shape and apply the “new” one.
These fluctuations are a matter of concern and should be remedied. Of course,
the Court enjoys a certain irrepressible margin of discretion to assess whether
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the applicant’s claims do or do not fall within the invoked treaty and its com-
promissory clause.97 However, such discretion, in order not to slide down to
arbitrariness, should be anchored to objective and more explicit criteria.98
The starting point is that, virtually in all cases, every treaty dispute brought
to the Court concerns at the same time both the interpretation and the
application of the treaty provisions invoked by the applicant. Further, while
interpretation can be kept separate from application,99 the latter is inexorably
dependent upon the former, in light of the fact that the application of a treaty
cannot but embody its interpretation.100 These circumstances contribute
97 Emmanuel Bourdoncle, “CIJ”, supra note 74, 190: “Il convient tout d’abord de souligner
l’impossible démarcation in abstracto de ce qui relèverait respectivement de l’étude pré-
liminaire de la compétence de la Cour et du fond dans l’interprétation d’une convention.
La CIJ dispose sur ce point d’une marge d’appréciation assez large et tient à conserver une
certaine souplesse […]”.
98 See Andrea Gattini, “Judicial Discretion”, Max Planck Encyclopedia of International
Procedural Law (forthcoming), paras. 26 ff.
99 Interpretation and application “[…] refer to processes, of which one, interpretation, is that
of determining the meaning of a rule, while the other, application, is, in one sense, that of
determining the consequences which the rule attaches to the occurrence of a given fact;
in another sense, application is the action of bringing about the consequences which,
according to a rule, should follow a fact” (Case concerning the Factory at Chorzów (Claim
for Indemnity – Jurisdiction), Judgment, 26th July 1927, Series A, No. 9, Dissenting opinion
of Judge Ehrlich, at 39). Even if Judge Ehrlich had made these remarks for a wrong aim
(namely the one of excluding from the PCIJ’s competence the question of reparation as
a consequence of finding a wrongful act), the general thrust of his tenets was shared by
several scholars in the past, see e.g. Dionisio Anzilotti, Cours de droit international, supra
note 9, 105 ff.
100 Georg Schwarzenberger, “Myths and Realities of Treaty Interpretation: Articles 27–29 of
the Vienna Draft Convention on the Law of Treaties”, 1 Virginia Journal of International
Law (1968), 1, 8, who held that “[a]ny application of a treaty, including its execution,
presupposes […] a preceding conscious or subconscious interpretation of the treaty”;
Mustafa Kamil Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur
le droit des traités”, 151 Recueil des cours (1976), 1, 10: “[…] l’interprétation, pour autant
qu’il s’agit de règles juridiques en vigueur, est une étape vers l’application”; Robert Kolb,
Interprétation et création du droit international. Esquisse d’une herméneutique juridique
moderne pour le droit international public (2006), 26: “[…] les deux concepts sont en réalité
très proches et se réalisent non rarement uno actu, car l’interprétation est souvent implic-
ite dans l’application”; in the same vein, see Anastasios Gourgourinis, “The Distinction
between Interpretation and Application of Norms in International Adjudication”, 1
Journal of International Dispute Settlement (2011) 31, 47, where the author, after noticing
that “[i]nternational judicial practice indeed reveals that judges are rather likely to first
determine what a treaty provision means and then move to apply it”, describes interpre-
tation as part of the process of application of a rule. This shows that interpretation is an
inescapable moment in every legal process. Therefore, the old view, well expressed by

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to shape the extent of the powers the Court can exercise in the preliminary
objections phase, in order to assess whether the dispute truly refers to both
the interpretation (first element) and the application (second element) of the
treaty invoked by the applicant.
In assessing the first element of the dispute, and premising that “[…] it is not
sufficient for the Parties to disagree as to the interpretation of the Treaty for
the Court to find that it has jurisdiction”,101 the Court should always abstain –
to borrow the terms from Torres Bernárdez – from intermingling “two different
things, namely ‘the interpretation of the treaty’ and the ‘principle of the consen-
sual jurisdiction of the Court’”.102 Indeed, while in the preliminary objections
phase the power to interpret the treaty provisions invoked by the applicant has
to be exercised to the extent that it is necessary to assess the Court’s jurisdic-
tion, equally true is that its exercise cannot amount to the settlement – even if
only de facto – of the interpretative element of the dispute, a task which can be
fulfilled by the Court only at the merits phase, also in the light of its tight con-
nection with the “application of the treaty” element of the dispute.103
How to find a balance between these two (apparently) conflicting needs?
The answer depends on a proper understanding of how the interpretative
process takes place both in general and before international courts and tri-
bunals. Building on Kelsen’s theorem,104 the first step of interpretation is
merely “cognitive” (or “intellectual”), in the sense that the interpreter has only
to delimit a series of possible meanings which can be attributed to a certain
norm.105 It is only in the second step that the interpreter chooses one among
Arnold McNair (The Law of Treaties (1961), 365 n1), according to which “interpretation is
a secondary process which only comes into play when it is impossible to make sense of
the plain terms of the treaty, or when they are susceptible of different meanings […]” is
nowadays untenable. For a critic of Lord McNair’s argument, see Richard Gardiner, Treaty
Interpretation (2008), 28, where it is claimed that “even ‘when the meaning of the treaty
is clear’, this is the result of ‘making out’ that meaning”.
101 Oil Platforms, supra note 22, Separate opinion of Judge Rigaux, at 867.
102 Santiago Torres Bernárdez, “Interpretation of Treaties by the International Court of
Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties”, in
Gerard Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern (1998), 721,
744–745.
103 Emmanuel Bourdoncle, “CIJ”, supra note 74, 192: “[e]n pratique, il est difficile de concev-
oir que la Cour ne tiendra pas compte de ses considérations exposées dans l’arrêt sur les
exceptions préliminaires dans le cadre de son examen au fond”.
104 Hans Kelsen, Théorie pure du droit (1962), translated by C. Eisenmann, 456; for a broad
discussion of the heart of Kelsen’s theory of interpretation, see Jörg Kammerhofer,
Uncertainty in International Law. A Kelsenian Perspective (2011), 113 ff.
105 In the words of Georges Abi-Saab, “‘Interprétation’ et ‘Auto-Interprétation’. Quelques
réflexions sur leur rôle dans la formation et la résolution du différend international”,
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the possible meanings previously identified, and such a choice is inherently an

“acte de volonté”, i.e. a decision.
This sequence seems very useful to conceptualize the extent of the Court’s
interpretative powers in the preliminary objections phase. Considering that
in that phase the Court must only satisfy itself that the dispute concerns rights
that the applicant enjoys under the invoked treaty provisions, at that stage
only the “intellectual” step of the interpretative process must be fulfilled. In
concrete terms, the Court has to isolate all possible meanings of the invoked
treaty provisions and assess whether the one invoked by the applicant falls
among them. On the contrary, moving beyond the “intellectual moment”
would inevitably lead the Court to express its “volonté” on the meaning to be
attributed to the invoked treaty provisions, and this would de facto amount
to the settlement of (the interpretative aspect of) the dispute brought to the
Court, a task which – as already stated – can be definitively fulfilled only
in the merits phase. In light of these reasons, in the preliminary objections
phase the Court must solely be satisfied that the treaty provisions invoked by
the applicant state, according to one of their plausible – because reasonably
possible – interpretations, do confer on it the rights that it claims were
breached by the respondent, and nothing more.106
in U. Beyerlin, M. Bothe, R. Hofmann, E.-U. Petersmann, Recht zwischen Umbruch und

Bewahrung. Festschrift für Rudolf Bernhardt (1995), 9, 10: “[…] l’interprétation en tant
qu’opération intellectuelle ou cognitive […] ne peut aller au-delà d’un recensement de
tous les sens possibles d’une norme générale, ou en d’autres termes de tracer le cadre
extérieur autour des différentes possibilités que peut accommoder la norme, et com-
porte, par là-même, la reconnaissance de l’existence de plusieurs possibilités à l’intérieur
de ce cadre”. See also Denis Alland, “L’interprétation du droit international public”, 362
Recueil des cours (2012), 721, 320.
106 To claim the opposite, i.e. that the Court must choose already at the preliminary objec-
tions phase only one among the possible interpretations of the provisions invoked by
the applicant would constitute both a risk for the applicant and a missed opportunity
for the Court. As for the first aspect, if the Court affirmed that the dispute does not
revolve around the interpretation of certain treaty provisions because the interpretation
invoked by the applicant does not correspond to the one established by the Court, the
consequence would be that in the future the applicant would be precluded from invok-
ing its interpretation, as well as all rights stemming from it, vis-à-vis the respondent. This
would be surely the case before the ICJ, since also judgments on preliminary objections
formally constitute res judicata for the parties (see Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007, at 91 ff., paras. 121 ff.). But this could happen
also before other international judicial bodies, in so far as the preliminary objections judg-
ment of the Court could influence them, as a matter of fact, in reaching the conclusion
that the interpretation invoked by that state as founding its rights is not the correct one.
As for the second aspect, choosing at the preliminary objections phase among different

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In assessing the second element of the dispute, that of the application of the
treaty to the case at hand, a similar order of considerations should apply muta
tis mutandis with regard to facts which are claimed to have a bearing on the
Court’s material jurisdiction. Indeed, in deciding whether the alleged respon-
dent’s measures are capable of falling within the substantive treaty provisions
as “reasonably” reconstructed by the applicant, i.e. of affecting applicant’s
rights stemming from them, the Court should resort to a jurisdictional test
equally inspired by reasonableness. With regard to the facts of the case, it is
indisputable that the role of the Court is to “[…] bring them under control,
interpret them, give them a legal meaning and draw from them all of the con-
clusions that they entail in law”.107 More precisely, the Court “[…] will make its
own determination of the facts, on the basis of the evidence presented to it,
and then it will apply the relevant rules of international law to those facts
which it has found to have existed”.108 However, such a twofold task – to grasp
the disputed facts and to legally appreciate them – is so inherently tricky,109
that the Court can adequately fulfill it only at the merits phase.
plausible interpretations just that one leading to the dismissal of the whole case would
also mean that the Court would deliberately give up its responsibility to render justice in
a case, in which it could legitimately do so, with all the drawbacks of this choice in terms
of the general perception of its authoritativeness.
107 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits,
Judgment, I.C.J. Reports 2001, Joint dissenting opinion of Judges Bedjaoui, Ranjeva and
Koroma, at 175, para. 97.
108 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, at
72–73, para. 168.
109 Divergent doctrinal views are traceable as for the treatment of facts in international adju-
dication, and each of them entails its own difficulties. Following a positivist approach,
expressed in the maxim da mihi factum, dabo tibi ius, facts – in light of the fact that they
have an objective consistency – are simply “identified” or “found” by international judicial
bodies, which then “objectively” apply the law to them (see ex multis Richard M. Mosk,
“The Role of Facts in International Dispute Resolution”, 304 Recueil des cours (2003) 17,
20–22). Contrary to this view, several authors believe that international courts and tri-
bunals, far from simply “identifying” or “finding” facts, “construct” them in a non-neutral
and non-objective way, being “the exercise of establishing the facts of the case […] never
disconnected from the dispute to be settled” (see ex multis Ana Luísa Bernardino, “The
Discursive Construction of Facts in International Adjudication”, 11 Journal of International
Dispute Settlement (2020), 175, 183 and ff.). This approach is based on the convincing
assumption that “the meaning of the facts […] does not appear in a pure form” (Martti
Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument
(2005), 522); or, in other words, that “facts do not walk into the court room” (Ana Luísa
Bernardino, “The Discursive Construction”, op. cit., 191). Beyond the issue of the treatment
of facts in international adjudication, it should also be mentioned that the notion of “fait
juridique” is in itself problematic, considering that “[…] les faits juridiques insérés dans la
règle juridique ne se réfèrent que très imparfaitement à la réalité qu’ils ont pour objet de
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On the contrary, while it is undeniable that, already in the preliminary

objections phase, the exercise of its kompetenz-kompetenz powers may lead
the Court to some evaluation of the facts of the case, at the same time great
caution should be exercised. Indeed, in concluding that the respondent’s mea-
sures are unable to affect the applicant’s rights, the Court is already de facto
settling the dispute brought to it by the applicant, and this may be acceptable
at that stage of the proceedings only in so far as that circumstance is mani
fest, i.e. when those measures – in consideration of their alleged nature and/or
their potential direct and indirect effects – in no way can prejudice the appli-
cant’s rights. A contrario, whenever the Court considers that the respondent’s
measures depicted by the applicant have a potential, even minimal, to affect
the latter’s rights, it should proceed to the merits.
A further consideration is warranted. In deciding on preliminary objec-
tions to its jurisdiction ratione materiae, the Court should avoid falling into the
temptation of resorting to exceptional procedural devices aimed at delaying
decisions on preliminary objections, such as that provided for in Article 79ter,
paragraph 4, of the Rules of the Court, unless strictly necessary.110 Indeed, as
the Court has clarified, the party raising a preliminary objection is entitled
régir […]. Le plus souvent il s’agit d’une création propre, d’une vision limitée et partielle
du réel, voire d’une fiction” (Jean J.A. Salmon, “Le fait dans l’application du droit interna-
tional”, 175 Recueil des cours (1982), 257, 294).
110 Article 79ter, para. 4, of the Rules states: “After hearing the parties, the Court shall decide
upon a preliminary question or uphold or reject a preliminary objection. The Court may
however declare that, in the circumstances of the case, a question or objection does not
possess an exclusively preliminary character”. The power to qualify a preliminary objec-
tion as not having an exclusively preliminary character was formulated by the Court in
its Rules only in 1972 (in Article 67, para. 7, and restated in 1978 in Article 79, para. 9), as a
replacement of the “old” power of “joinder to the merits”. That amendment was intended,
and unanimously interpreted, as a means to prevent a too “liberal” use of joinder by the
Court and to let the defendant stay free to determine its further procedural strategy (by
renouncing the exception as such, or by raising it as a plea at the bar, or by presenting
it as a defense in the merits), see Fouad Ammoun, “La jonction des exceptions prélimi-
naires au fond en droit international public”, 14 Comunicazioni e studi (1975), 17, 36 ff.;
see also Roberto Ago, “Eccezioni «non esclusivamente preliminari»”, 14 Comunicazioni
e studi (1975), 1, 15–16. The case in which the Court had been criticized for going too far
in its power to join preliminary objections to the merits and possibly prompted the 1972
amendments was the 1964 preliminary objections judgment in the Barcelona Traction
case (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, p. 6; see Georges Abi-Saab, Les exceptions préliminaires
dans la procédure de la Cour internationale de justice (1967), 198: “[…] cet arrêt témoigne
d’un changement d’orientation en la matière, plus favorable à l’extension du champ
d’application de la jonction. Cela ne peut aller sans affaiblir la base même et l’utilité réelle
de la technique des exceptions préliminaires”).

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to have that objection answered by the Court, which has the duty to do so,
at the preliminary stage of the proceedings, unless further facts – which can
be collected only at the merits phase – are necessary, or unless answering to
the objection “would determine the dispute, or some elements thereof, on
the merits”.111
It is crucial to highlight that so far, in applying Article 79ter, paragraph 4
(also in its previous version of Article 79, paragraph 9), the approach of the
Court – albeit with some debatable fluctuations – has been remarkably strict.112
111 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,

Judgment, I.C.J. Reports 2007, at 852, para. 51. See also Pierre d’Argent, “Preliminary Objec
tions: International Court of Justice (ICJ)”, Max Planck Encyclopedia of International
Procedural Law (2019), paras. 21–22. However, it could be doubted whether an objection
as such formulated by the Court in the second category should still be properly labelled as
a “preliminary” (even if not exclusively) one, and not as an outright defense in the merits.
For a proper characterization of different kinds of preliminary objections, see Gaetano
Morelli, “Questioni preliminari nel processo internazionale”, 54 Rivista di diritto internazi
onale (1971), 5 ff.
112 Indeed, except for the 2018 preliminary objections judgment in the Certain Iranian Assets
case (seen above at 4.2), the ICJ has qualified preliminary objections as not having an
exclusive preliminary character only in five proceedings. This happened for the first time
in the Military and Paramilitary Activities in and against Nicaragua case, where the Court
was called upon to pronounce on the legal effects of the “Vandenberg reservation” that
the United States had included in its acceptance of the ICJ’s jurisdiction and that pre-
vented the Court from settling “disputes arising under a multilateral treaty, unless (1) all
parties to the treaty affected by the decision are also parties to the case before the Court,
or (2) the United States of America specially agrees to jurisdiction”. In the preliminary
objections phase, the Court correctly concluded that the expression “affected” involved
aspects of the merits, this being “not in itself a jurisdictional problem” (see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, at 425, para. 76). The second
instance in which the Court applied Article 79, para. 9, was in the Land and Maritime
Boundary case between Cameroon and Nigeria, where the Court qualified as not having
an exclusively preliminary character the eight objections by which Nigeria had requested
the Court to abstain from rendering the judgment because it would have encroached
upon the rights of a third State, a matter which the Court could have conveniently tack-
led only at the merits phase (see Land and Maritime Boundary between Cameroon and
Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, at 324, para. 117: “the Court
cannot rule out the possibility that the impact of the judgment required by Cameroon
on the rights and interests of the third States could be such that the Court would be pre-
vented from rendering it in the absence of these States, and that consequently Nigeria’s
eight preliminary objections would have to be upheld at least in part”). Later on, the Court
in the two Lockerbie cases qualified as not having an exclusively preliminary character
the objections raised by both the United States and the United Kingdom, according to
which the dispute brought to the Court by Libya had become moot, or without object, as a
result of some UN Security Council resolutions. Indeed, the reason why the Court applied
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Therefore, the adoption by the Court of the above indicated, balanced, rea-
sonable jurisdictional test would allow the Court to decide in due course all
preliminary objections to its material jurisdiction with more ease, thus avoid-
ing any ambiguous application of Article 79ter, paragraph 4, a norm which has
to be applied only when the difficulties of the case effectively require it.
A final remark. It appears that the proposals here advanced, which essen-
tially consist in brushing up a jurisdictional test which the Court used to apply
in the early years of its judicial function, diverge from the views expressed by
Judge Higgins. However, it is with her teachings in mind that they have been
devised. Indeed, it is well known that, at the beginning of the new millennium,
Dame Rosalyn Higgins called for a new phase at the World Court, a phase
aimed at overcoming “the culture of excessive deference to State sovereignty
in a range of procedural issues”.113 Despite recognizing that such a deference
had found expression already in the privileged position of states, which cannot
be brought before the Court unless their consent has been given, at the same
time she powerfully claimed that “[o]nce that consent has been given – and,
Article 79, para. 9 in the case was that it recognized that a decision on such respondents’
preliminary objection would have resulted in a decision on “the very subject-matter” of
the dispute (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, supra note 39, at 29, para. 50; Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment,
supra note 40, at 134, para. 49). Actually, in these last instances, the Court could have sim-
ply rejected the preliminary objection (see ex multis Robert Kolb, The International Court
of Justice (2013), 245–246), but most likely it avoided any (positive or negative) decision
on the respondents’ objection, because that would have required a principled statement
on the legal effects of UN Security Council resolutions invoked by the United States and
the United Kingdom. More problematic was the decision reached in the 2008 preliminary
objections judgment in the Genocide (Croatia) case, where the Court qualified as not hav-
ing an exclusive preliminary character the exceptions raised by Serbia claiming the lack
of jurisdiction ratione temporis of the Court, which mainly concerned the imputation
of some conduct to Serbia prior to its independence (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
Objections, Judgment, I.C.J. Reports 2008, at 460, paras. 129–130). However, in the 2015
judgment on the merits, the Court transformed this objection to the jurisdiction ratione
temporis into an objection to the jurisdiction ratione materiae, but then it left suspended
the question of the existence in international law of a rule on the succession in responsi-
bility (which would have been necessary in order to solve this objection) and proceeded
straight on to dismiss the case on the merits.
113 Rosalyn Higgins, “Respecting Sovereign States and Running a Tight Courtroom”, 50
International & Comparative Law Quarterly (2001), 121, 131.

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if necessary, the Court has determined that it has been given – States become
normal litigants before a court [italics not added]”.114
As the present contribution has attempted to demonstrate, it is about
time for the Court to overcome any hesitation in adopting a coherent and
reasonable approach for the establishment of its jurisdiction with regard to
compromissory clauses, since this would contribute to reinforcing it as that
“precious plant, its gardener [being] the whole world, which expects from it a
new era of happiness, when right and justice shall flourish on Earth”.115
Acknowledgements
The author would like to thank the members of the 2021 Rosalyn Higgins Prize
Committee for their esteem and for their helpful and challenging remarks, as
well as Professor Andrea Gattini for his invaluable guidance and support.
114 Ibid., 132.
115 Speech by Dr. Loder, President of the Permanent Court of International Justice, during
the formal opening of the Court at the Hague on February 15th, 1922 (League of Nations
Official Journal, 1922, at 312).
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The Law and Practice of International

Courts and Tribunals 21 (2022) 5–34

“To Fall, or Not to Fall, That Is the (Preliminary)

ICJ – preliminary objections – dispute – jurisdiction ratione materiae – compromissory

On the verge of the 75th anniversary of the International Court of Justice

© Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/15718034-12341464

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2 Relevant Cases Decided by the World Courts until 1996

“Incidental Determinations in Proceedings Under Compromissory Clauses”, 70 International

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1951–4: Questions of Jurisdiction, Competence and Procedure”, 34 The British Yearbook of

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As for the jurisdictional test to be applied, in an apparently anodyne way

24 Ibid., at 810, para. 16.

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30 Ibid., para. 31.

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3 The Case Law of the ICJ from 1996 to 2017

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4 Swinging Jurisdictional Tests in Five Recent Cases (2018–2021)

Notwithstanding the widespread idea that the Court coherently applies

to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,

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preliminary objections judgments rendered by the Court demonstrate that

4.1 Immunities and Criminal Proceedings (2018)

48 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,

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4.2 Certain Iranian Assets (2019)

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4.3 Application of the ICSFT and of CERD (2019)

63 Ibid., at 40, para. 97.

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68 Ibid., at 579, para. 40.

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4.4 Alleged Violations of the 1955 Treaty (2021)

73 Ibid., at 595, para. 94.

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After dismissing the US objection that the “real” subject-matter concerned

78 Ibid., at para. 62.

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4.5 Application of CERD (2021)

jurisdiction. However, such a conclusion is foreclosed by today’s Judgment rejecting the

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4.6 Some Observations on the Recent Case Law

95 Application of the International Convention on the Elimination of All Forms of Racial

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conclusion solely on a debatable interpretation of Article 4. The same applies

5 Back to the Old but Still Gold “Reasonable” Jurisdictional Test

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the possible meanings previously identified, and such a choice is inherently an

in U. Beyerlin, M. Bothe, R. Hofmann, E.-U. Petersmann, Recht zwischen Umbruch und

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On the contrary, while it is undeniable that, already in the preliminary

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111 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,