chapter 3

The Cases Where the International Court of Justice

Lacked Jurisdiction: A Brief Analysis and
Commentary
Rita Teixeira and Ricardo Bastos

The importance of the International Court of Justice (icj or Court) is beyond

question: 160 cases have made it to the general list of the Court since 1947; to
the present date, 70 countries have made declarations under the optional
clause of Article 36(2) recognizing the Court’s jurisdiction as compulsory; dis-
pute resolution clauses in thousands of international agreements mention it.
With a record of more than half a century of case law, the un Court solved a
considerable number of disputes between states, avoiding international con-
flicts. This chapter will, however, focus on the cases where that was not possi-
ble to achieve—the cases where the icj decided it lacked jurisdiction.
Even though it has been a matter disputed in over fifty proceedings, only in
a few of them did the icj refuse to assess the merits on the grounds that it did
not have jurisdiction to entertain them. This brief study will look at those cases
and list and analyze what were the Court’s grounds and reasoning. Its aim is to
synthetize in what circumstances cases before the icj may fall outside its
scope of jurisdiction and contribute to the task of determining where the line
is drawn.

I Introduction

1. The basis for jurisdiction of the International Court of Justice (icj or Court)
is the consent of the states parties to a dispute.1 This consent may be
expressed: (i) by the conclusion of a special agreement (compromis); (ii)
through the inclusion of a jurisdictional clause in a treaty (compromissory

1 In the words of the icj, the principle that “the Court can only exercise jurisdiction over a
State with its consent” is “a well-established principle of international law embodied in the
Court’s Statute” - Case of the monetary gold removed from Rome in 1943 (Italy v. France,
United Kingdom and usa), Preliminary Question, Judgment of 15 June 1954, icj Reports 1954,
p. 19, at 32. See also East Timor (Portugal v. Australia), Judgment of 30 June 1995, icj Reports
1995, p. 90, at para. 26.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004298712_004

24 Teixeira and Bastos

clause);2 (iii) by virtue of declarations made by states recognizing the Court’s

jurisdiction as compulsory, in relation to any other state accepting the same
obligation, in all legal disputes concerning the matters specified in Article
36(2) of the icj Statute (optional clause); or by accepting jurisdiction for a case
brought against them, on the terms of the Forum Prorogatum doctrine.3 As
such, the scope of the icj’s jurisdiction depends directly on the willingness of
states to consent to the adjudication of disputes by it—and considering the
importance of the issues that may be at stake (more frequently than not, of a
political nature), it does not come as a surprise that they have been reluctant
do so.4 For this same reason, states that appear before the Court as respondent
often present preliminary objections to jurisdiction.5
2. The Court has jurisdiction to decide any dispute regarding the scope of
its own jurisdiction (a power commonly referred to as compétence de la compé-
tence), by virtue of Article 36(6) of its Statute, and it has done so in a consider-
able number of cases. In the majority of them, it rejected the preliminary
objections and found that it could address and adjudge the dispute-matter.
Nevertheless, there have been cases where, due to a series of different reasons,
the icj could not find a basis to establish its jurisdiction and has determined

2 Generally, through a compromissory clause the states parties agree in advance to submit to
the Court any dispute concerning the implementation and interpretation of a treaty.
3 According to the Forum Prorogatum doctrine, if a state has not recognized the jurisdiction of
the Court at the time when an application instituting proceedings is filed against it, that state
has the possibility of accepting it subsequently to enable the Court to entertain the case. The
PCIJ has upheld its jurisdiction even where consent has been given after the initiation of
proceedings in an implied or informal way or by a succession of acts – see, inter alia, cases
Mavrommatis (1924), pcij Series A, No. 2, p. 34, and The Rights of Minorities of Upper Silesia
(1928), pcij series A/B no. 15, pp. 24-26. However, the icj has also stressed out that the fact
that the respondent state has not refused to appear before the Court and has participated in
the procedures and made submissions can not be interpreted as consent to the Court’s
jurisdiction over the merits if the very purpose of this participation was to challenge that
jurisdiction – see Armed Activities case (drc v. Rwanda), para. 22.
4 Similar conclusion in A. Llamzon, Jurisdiction and Compliance in Recent Decisions of the
International Court of Justice, 18(5) European Journal of International Law 815 (2007), at 817.
5 As Merrills has noted, “Once a legal act indicating consent has been performed, jurisdiction
may be established, even if the state is unwilling to litigate when an actual case arises. There
is thus no contradiction between the consensual basis of the Court’s jurisdiction and the fact
that the Court is regularly called upon to consider—and frequently rejects as ill-found—
objections to its jurisdiction to un-willing respondents”—J. Merrills, International Dispute
Settlement (2011), p. 117. It should be highlighted that this is a problem only within the scope
of the Court’s compulsory jurisdiction, and not when a dispute is submitted to it by means of
a special agreement.