Study aims

In every adjudicatory process, the issue of jurisdiction is very fundamental to the validity of the whole proceedings. It is the pillar upon which other edifice of the judicial process is built.

Consequently, it is the live-wire of the adjudicatory process as any decision arrived at by any adjudicatory institution or judicial body without the requisite jurisdiction amounts to a nullity.⁵⁹

Within the context of this work, jurisdiction is the authority a court has to adjudicate over a matter and to make binding decisions.⁶⁰ Rosenne defines it as the power of the court to do justice between the litigating states, to decide the case before it with final and binding force on those states.⁶¹ Considering the jurisprudential haze that the word ―justice‖ usually attracts

57 Article 21 of the statute. In practice, the court rotates the presidency among the principal legal systems represented on the court.

58 Article 31(2) and (3). This provision is also responsible for the concept of ad hoc Judges in the court‘s practice.

59 In municipal law, these postulations are regarded as trite law. See the case of Madukolu V. Nkemdilim (1962)2 SCNLR 341; Ohakim V. Agbaso [2011] ALL FWLR (PT 553) P. 1806 @ pp.1831-1832, Ratio 2.

60 This is to distinguish the term from its ordinary usage under general International Law as depicting the power of a state to regulate or otherwise impact upon people, property and circumstances and which concept is reflective of the basic principles of state sovereignty. For this latter use of the term, see generally M.N. Shaw, International Law, 4^th edn., (Cambridge University Press, Cambridge, 2008) pp.

645-696.

61 Shabtai Rosenne, The Law and Practice of The International Court, 1920-2005, vol. ii, 4^th edn.

(Leiden: Martinus Nijhoff Publishers, 2006) p. 524; Emmanuel Ibezim, ―The Contribution of the International Court of Justice to International Humanitarian Law,‖ ABSU-PCJL vol. 1 No. 1 2013, p.

59.

105 in legal writings, he advisedly went on to illustrate this process of ―doing justice‖ as including:⁶²

(a) Considering the arguments of parties;

(b) Appraising the evidence produced by them;

(c) Establishing the facts and;

(d) Declaring the law applicable to them which have a binding force.

Jurisdiction can be formal or procedural and substantive. Formal or procedural jurisdiction refers to the carrying out of the correct procedural steps for bringing a dispute before the court as prescribed by the court‘s statute and rules. Substantive jurisdiction on the other hand refers to the competence a court has to hear and determine a case on the merits. This distinction is very germane in the sense that a court may have the jurisdiction to look into the substantive issues in dispute and yet lack the competence to do so as the procedural steps which is the sesame to delving into the substantive issues has not been taken. Thus, for any court to have jurisdiction to delve into the substantive issues in dispute, it must be properly seized of the matter.

A‘ fortiori, jurisdiction in the formal or procedural sense is often termed ―the seising of the court.‖⁶³ Seising gives the court the ability to determine if it possesses the competence to go into the merits of a matter in dispute. Commenting on this distinction, Fitzmaurice⁶⁴ posits and we agree that:

62 Ibid.

63 Shabtai Rosenne, The International Court of Justice: An Essay in Political and Legal Theory, (Leyden:

A W Sythoff, 1961) p. 257; E Ibezim, ―The Contribution of the International Court of Justice to International Humanitarian Law,‖ ABSU-PCLJ Vol. 1, No. 1, 2013, p. 59.

64 G Fitzmaurice, ―The Law and Procedure of the International Court of Justice: 1951-1954. Questions of Jurisdiction, Competence and Procedure,‖ BYIL (1958) p. 15.

106 Against the backdrop of the sub topic under discussion, the ICJ is a creation of a Treaty (that is, the United Nations Charter): its jurisdiction (both procedural and substantive) must necessarily be predicated upon or within the confines of the law establishing it and other instruments thereto. Consequently, we shall examine some of the Charter provisions relating to the jurisdiction of the ICJ. Its statute will also be examined vis-à-vis its jurisdictional competence.

(A) Sources of Law to be Applied

All judicial institutions whether under municipal or international law setting are invariably a creation of statute or legislation. These statutes also set out the applicable laws to be relied upon by the courts established under it, the parties, subject matter, etc. the essence being that every court operates within a certain legal milieu outside which its decision becomes subject of attack on jurisdictional basis.

Seising might therefore be said to confer jurisdiction or competence on a tribunal in the procedural sense. But substantive jurisdiction or competence will necessarily depend on other factors. It is clear however that without the measure of procedural competence which such a seising when effected does of itself entail would the tribunal be able to determine its substantive jurisdiction if in question or otherwise uncertain; and the inherent power of international tribunals to determine their own jurisdiction (the competence de la competence) would be nullified.

107 It is in view of the foregone that we deem it apt to begin our discussion of the jurisdiction of the International Court of Justice (ICJ) with Article 38 of the Statute of the ICJ⁶⁵ which in general terms provides the source or fountain from which flows the jurisdiction of the ICJ.

Article 38 of the Statute of the International Court of Justice (ICJ) provides as follows:

1. The court whose function is to decide in accordance with International Law such disputes as are submitted to it shall apply:

(a) International Conventions whether general or particular establishing rules expressly recognized by contesting states.

(b) International customs as evidence of general practice accepted as law.

(c) The general principles of law recognized by civilized nations.

(d) Subject to the provisions of Article 59, judicial decisions and teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of the rules of law.

2. This provision shall not prejudice the power of the court to decide a case ex aequo et bono if the parties agree thereto.

Paragraphs (a)-(c) above are widely acclaimed as constituting the most authoritative source of International Law. In essence, they are the primary or law creating process. Paragraph (d) constitutes a subsidiary source or law determining agencies.

Considering the truism that judicial institutions always exist for purposes of settling disputes among parties, Article 38(1) of the statute sets the jurisdictional scope of the ICJ by the words ―…. Whose function is to decide in accordance with International Law, such disputes as are submitted to it….‖ This provision which is preambular when juxtaposed with other paragraph and sub-paragraph of Article 38 evidences the fact that the term ―dispute‖ is the

65 Article 38(1) of the Statute of the ICJ is also acknowledged as the most authoritative and complete statement as to sources of International Law; M N Shaw, op. cit, p. 70; D J Harris, Cases and Materials on International Law, (London: Sweet & Maxwell, 2004) p. 18.

108 nucleus around which the jurisdiction of the court primarily revolves.⁶⁶ Thus, the existence of a dispute⁶⁷ is the primary condition for the court to exercise its judicial functions. However, whether a dispute measures up to the judicial qualification to merit the court‘s attention is a matter for objective determination by the court and not dependent upon the subjective view of the parties as to its existence or otherwise. Furthermore, the fact that proceedings before the court were actuated by political motives is irrelevant in the court‘s consideration of its jurisdiction. On the irrelevance of political motives in the consideration of jurisdiction, the court in the Border and Transborder Armed Actions (jurisdiction and Admissibility) case ⁶⁸ stated thus:

66 Resolution of dispute is not however the only function of the court as the Statute also empowers it to give advisory opinions which though not a binding settlement of a dispute may go a long way in quelling a simmering situation that may inevitably erupt into a dispute.

67 On the meaning and types of disputes; see Chapter 3 supra.

68 ICJ Reports (1988) p. 69 at 91 para 52.

The court is aware that political aspects may be present in any legal dispute brought before it. The court as a judicial organ is however only concerned to establish first that dispute before it is a legal dispute in the sense of a dispute capable of being settled by the application of principles and rules of International Law and secondly that the court has jurisdiction to deal with it and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. The purpose of recourse to the court is the peaceful settlement of such disputes; the court‘s judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a state at a particular time or in particular circumstances to choose judicial settlement.

109 We shall now look at the other items under Article 38(1) which provides jurisdictional scope for the ICJ in the sense that the court is positively enjoined by the statute to apply them in the course of its judicial activities.

(i) International Conventions: International Law embodies the rules and principle created through international legislation. A’priori, the court applies these rules and principles so created, and in the process becomes a validating instrument for those instruments that measures up. The word ―Convention‖ means a Treaty.⁶⁹ Traditionally, a Treaty is an agreement in writing between states whereby they bind themselves legally to act in a particular way or to set up particular relations between themselves.⁷⁰ Treaties are known by variety of names, to wit: conventions, agreements, pacts, accords, charter, covenants, statutes, etc. Whilst the conventional view of Treaties are basically one between states as the main actors of the international system remains true, it is also a truism that given the expanding frontiers of international relations wherein other actors other than the state are assuming dominant roles, this view of Treaties as being between states inter se are no longer sacrosanct. Especially is this so when viewed against the backdrop contemporary practice wherein international organizations enter into agreement with states.

Treaties are usually divided into two, to wit:

(a) law-making treaties which are intended to have universal or general relevance and (b) Treaty-contracts which apply only as between two or small number of states.⁷¹

A contract Treaty regulates a specific relationship between two or more states as in for example, a loan agreement whilst a law-making Treaty lays down rules for a number of states. However, there is no hard and fast rule about this distinction as a single Treaty may

69 M O U Gasiokwu, International Law and Diplomacy (Selected Essays), (Enugu: Chenglo Ltd, 2004) p.

27; M T Ladan, Materials and Cases on Public International Law, (Zaria, ABU Press Ltd, 2007) p. 11.

70 M N Shaw, op. cit p. 93. See also Article 2(1) Vienna Convention on Law of Treaties, 1969.

71 M N Shaw, Ibid at p. 94.

110 contain provisions which are partly contractual and partly law-making.⁷² Once a Treaty comes into operation among parties, they thereby create among themselves a lex contractus of a consistent nature. This obligatory character of Treaties is more commonly referred to with its Latin expression pacta sunt servanda. It connotes sanctity of Treaties. Only parties to a Treaty are bound by its provisions. This rules is solidified by Article 34 of the Vienna Convention on the Law of Treaties, 1969 which is to the effect that a Treaty does not create either obligations or rights for a third state without its consent. This principle is summed up by the maxim pacta tertiis nec nocent nec prosunt. However where Treaties are reflective of Customary International Law, then non-parties are bound by its provisions. This is predicated on the fact that the particular provision reaffirms a rule or rules of Customary International Law.

Given the complexities of modern life, the technological, scientific and communication revolutions coupled with the economic challenges buffeting most part of the world, the number of issues requiring some form of inter-governmental regulation has equally multiplied, thus necessitating increased governmental control which inevitably finds expression in the volumes of Treaties in force. Its vibrancy in driving contemporary inter-state intercourse in particular and international life in general has assured for it a prime place of importance when juxtaposed with other sources of International Law. Thus, whilst other sources more or less express the tacit agreement of the states, Treaties require the express consent of the contracting parties. This consent is often made express by the signing and/or ratification of the treaty instrument by the affected parties. Thus, save for Treaties that

72 M Akehurst, A Modern Introduction to International Law, (London: George Allen & Unwin Ltd.

1971). p. 38.

111 reflects Customary International Law,⁷³ states which has not given their consent to a Treaty cannot be bound by such Treaties. A Treaty may however establish rules which extend to non-parties. The United Nations Charter is a veritable example of such a Treaty. In pursuance of its avowed aim of engendering a peaceful and secured world, it sought in Article 2(6) to provide a definite framework for the preservation of International Peace and security by providing as follows: ―the organization shall ensure that states which are not members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of International Peace and Security.‖ It needs be recalled that these principles were listed in Article 2.

In the same vein, Treaties can be constitutive in the sense that they create institutions and also define their powers and duties. A good example is the United Nations Charter and most regional Treaties.

(ii) International Customary Law

Customs are unarguably the oldest and in the words of Umozurike, the most important source of International Law applied by the International Court of Justice.⁷⁴ It has its roots in the habits, sentiments and interests of mankind.⁷⁵ Wherever a customary rule emerges, it is always a by-product of the we-feeling of the members of the particular society or group in the sense that all members sub-consciously participate in its development and sustenance by the application of various social pressures albeit on an unequal basis.

73 However, the fact that a Treaty rule covers the same ground as a customary rule does not ipso facto mean that customary rule has been subsumed into that of the Treaty rule. Both will continue to maintain their separate existence for the rule. See the Nicaragua Case, ICJ Reports 1986, p. 14 where the court held at pp 94-95 that ―even if a Treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the court to hold that the incorporation of the customary norm into treaty law must deprive the customary norm of its applicability as distinct from the Treaty norm‖ See further M.N. Shaw, op. cit. pp 96-97.

74 U O Umozurike, Introduction to International Law, (Ibadan: Spectrum Law Publishing,1993) p. 18 cf.

R Mullerson, ―Sources of International Law: New Tendencies in Soviet Thinking,‖ 83 AJIL, 1989 pp 494, 501-509.

75 A F George, The Sources of Modern International Law, (New York: Johnson Reprint Corporation, 1971) p. 3.

112 If the above thesis is juxtaposed to the international scene, it thus emerges that custom as a rule is democratic in that all the states may share in the formulation of rules of customs albeit on an equal footing. The basis of International Customary law is the consent of states tacitly expressed by way of constant and consistent usage and practice as against consent explicitly expressed in Treaties. Thus, for rules to ripen into custom, there must be a constant and uniform⁷⁶ usage and general acquiescence in the normative content of such rules. Its elements as a rule of International Law comprise the following:

1. Concordant practice by a number of states with reference to a type of situation falling within the domain of international relations.

2. Continuation or repetition of the practice is required over a considerable period of time.

3. Conception or belief that the practice is required by or consistent with prevailing International Law; and

4. General acquiescence in the practice by other states.⁷⁷

It is these elements that Article 38(1) (b) of the ICJ Statute encapsulated and summed up as

―evidence of general practice accepted as law‖. The constant and uniform usage and/ or practice by states take many forms to wit:

(i) Acts taken by states in their diplomatic relations with one another.

(ii) Acts taken internally by states through their legislatures or courts.

(iii) Acts taken by states before international organizations.

(iv) And even inactions by states when confronted with a particular matter.⁷⁸

Theoretically, the practice of all states ranks equally in the evolution of a customary rule. But against the backdrop of power dynamics in the international system, the practice of some

76 The Asylum Case (Colombia V. Peru) 1950 ICJ Reports, p. 266 at p. 267.

77 Gasiokwu op. cit. p. 13.

78 Sean D Murphy, Principles of International Law, (St. Paul, Minnesota: Thomson & West, 2006) p. 78.

113 states on certain topics might be accorded greater relevance than the practice of others. For example, the practice of states who has sent astronauts to the moon might be of greater relevance when the issue borders on the usage of the outer space than those states who only nurse the ambition.

Given the above discussions thus far, two basic elements poignantly stand out in the make-up of a custom namely:

(a) The material fact, which is the actual behavior of states and

(b) The psychological or subjective belief that such behavior is ―Law‖.⁷⁹

This mental belief about the obligatory and legal nature of a customary practice is the major distinguishing factor of Customary International Law from those rules of customs states indulge in out of courtesy or habit. For example, when a foreign head of state visits, the host country normally flies the visiting head of state‘s flag alongside that of the host country at major public events. Such a practice while relatively uniform and consistent world-wide, attracts no international liability or responsibility for a defaulting country as it is simply a matter of courtesy as no state regards itself as legally obligated to undertake the practice. At worst, if a state fails to fly a foreign head of state‘s flag, such would only be regarded as a faux pax and an insult but certainly not as a violation of Customary International Law. Thus for a customary practice to evolve as law, states must feel impelled by a legal obligation not habitual action.⁸⁰ In essence, every customary practice must be coupled with an opinio juris.

One difficulty inherent in establishing opinio juris lies in the fact that states often engage in a practice without any conscious attempt at publicly stating that they are under a legal duty to do so. Especially is this so when the relevant practice consists of inactions, thus leaving no room for articulating the ―law altitude‖. Consequently we share the view expressed by

79 This psychological element is often expressed by the maxim ―opinio juris sive necessitatis‖ normally abbreviated to opinio juris.

80 North Sea Continental Shelf Cases, 1969 ICJ Reports, p. 3.

114 Murphy when he opined that ―whether opinio juris exists is often surmised from the context in which the practice took place‖. Note too that a custom does not necessarily have to be immemorial in order to constitute a rule of International Law, though such a long period may be evidence of consistency and acceptance.⁸¹ All states need not be involved in custom formation as each customary practice is relative to the subject matter and the state involved.

Thus, a regulation pertaining to the breadth of the territorial sea is unlikely to be treated as law if the great maritime nations do not agree to or acquiesce in it no matter how many landlocked states demand for it. Likewise if the matter concerns the treatment of representatives to international organizations; the practice of states who host major international organizations may be of particular relevance. A’fortiori, for a customary rule to become law, it needs the concurrence of those most directly interested in the subject matter.

An occasional deviation from custom is not necessarily fatal so long as other states acquiesce in it.⁸² A custom may be general or particular. In the former, the customary rule is global and more extensive while in the latter, it is regional and less extensive in application. Where it is contended that a customary rule is localized or regional, such must be proved even though a particular custom may be treated as general within a region. Thus in the Asylum Case,⁸³ the International Court of Justice recognized the fact that there could exist a customary rule of International Law operative within the states of Latin America and relating to the right of a state to issue a unilateral and definitive grant of political asylum,⁸⁴ whilst in The Right of Passage Over Indian Territory Case,⁸⁵ the ICJ while rejecting India‘s objection that no local custom could be established between only two states, upheld Portugal‘s claim that there

81 In the North Sea Continental Shelf Case supra, the ICJ alluded to the fact that a 10-15 years state practice could be sufficient for the purpose of creating Customary International Law.

82 Anglo-Norwegian Fisheries Case (U.K. V. Norway) 1951 ICJ Reports p. 116. However instances of a state conduct inconsistent with a given rule should generally be treated as breaches of that rule. See Military and Paramilitary Activities Against Nicaragua (NICAR V. U.S.) 1986, ICJ Reports p. 14 at p.

98.

83 Foot note 76 supra.

84 In the specific circumstances however, the court refused to affirm the contention of Colombia as to the existence of such a regional custom on the ground that such was not proven.

85 1960 ICJ Reports p. 6 at p. 431.