1. Introduction
Against the backdrop of an increased resort to ‘public interest’-style litigation between states before international courts and tribunals (ICTs), and especially the International Court of Justice (ICJ),Footnote 1 the question of how ICTs should transform their (procedural) practice to accommodate the shifting landscape of international law has become a central point of debate. Scholars and states are divided on whether this trend reflects a crisis of international lawFootnote 2 or is a testament to a strengthenedFootnote 3 multilateral public order which comprises a range of objective obligations aimed at the protection and enforcement of the common values.Footnote 4 In either case, it places renewed attention on the role and powers of ICTs when confronted with such claims. While rarely acknowledged explicitly by courts themselves, shifts in the international legal order may exert a normative impact on procedural rules as much as they do on substantive obligations.Footnote 5 In this sense, the growing number of disputes invoking common values does not exceed or displace existing procedural frameworks, but may inform how procedural discretion is exercised, as much as it has long influenced the interpretation of substantive obligations.
Though distinct in their purpose, jurisdiction (the power to exercise authority) and procedural rules (the manner of how a process is carried out) perform closely related functionsFootnote 6 in that they constitute the ‘body of legal norms that are designed to organize and regulate the process of the enforcement of the legal rights and obligations of various actors’,Footnote 7 i.e., international procedural law. Within this framework – often said to be plagued by ‘an asynchronous development that creates tension’Footnote 8 – the lack of compulsory jurisdiction, particularly before the ICJ, and the, often limited, subject-matter jurisdiction of other ICTs has long been seen as obstacles to the enforcement of fundamental or common values. Consent and the generally bilateral/adversarial style of proceedings thus operate as a proverbial ‘bottleneck’.Footnote 9 Accordingly, international procedural law is frequently portrayed as a rigid (party-oriented) regime where judges and arbitrators are bound by the applicable rules and principles with little room for maneuvering. In the case of jurisdiction, the strict framework, hinging above all on party consent, also serves to ground and legitimize the exercise of authority, aiming to enhance compliance and predictability.
In practice the procedural framework often proves more flexible than this formal picture suggests, especially at the international level.Footnote 10 While the strategic use of litigation has particularly been explored from a party perspective,Footnote 11 increasing attention is now paid to the interpretative and institutional choices available to ICTs themselves. Within this debate, jurisdiction again enjoys a special role. Whereas ICTs generally possess inherent authority over their procedural rules, and thus enjoy an inherent discretion by virtue of their judicial function to apply, amend, and interpret these rules, jurisdiction ties their authority directly to state consent – it ‘presents itself as a binary – something that either exists or does not, that courts either possess or do not’.Footnote 12 Arguably, this allows for less discretion; but ICTs nevertheless are said to ‘construe their jurisdictional powers in ways that maximize their goal-attainment potential’,Footnote 13 to ensure the effectiveness of the proceedings before them.
Even if the institutional context of ICTs varies, the role and purpose of ICTs, as ‘organs of the value-based international community’,Footnote 14 is increasingly acknowledged to extend beyond balancing state interests to also encompass the promotion of common values more broadly.Footnote 15 In certain instances, common values may therefore indeed inform the interpretation and application of jurisdictional rules, thereby softening the rigidity traditionally associated with consent.
This article proceeds in two parts. First, it examines the role of international procedural law in the enforcement of common values, viewing procedure as an institutional resource that affords ICTs a degree of flexibility in both its development and application. The interdependence of procedural and substantive law creates an environment in which ICTs must balance competing internal and external values in the exercise of their judicial function. Second, the article explores selected procedural ‘inlets’ through which ICTs may give effect to common values when determining the existence and scope of jurisdiction. Primary focus is placed on the ICJ, an institution traditionally characterized by a pronounced sensitivity to the limits of consent and a cautious approach to the expansion of its jurisdiction. Other institutions, by contrast, have often displayed a greater readiness to operationalize common values within their procedural frameworks.Footnote 16 Nevertheless, the analysis demonstrates that even at the ICJ, common values may feature as a contextual element shaping the exercise of procedural discretion.
2. International procedural law and substantive law: ‘Procedural power’
The role of international procedural law and its relationship to substantive law have increasingly moved into the focus of legal scholarship. While there is no universal definition of (international) procedural law, a broader definition would include all rules that ‘govern[] the judicial and non-judicial interpretation, implementation, and enforcement of substantive rules’.Footnote 17 Substantive law, in contrast, is generally perceived as governing the material content of rights and obligations. However, the delimitation remains subject to debateFootnote 18 and different authors classify some rules into different categories. Most classifications consider questions of jurisdiction as part of international procedureFootnote 19 or at least as a separate category from substantive law.Footnote 20
The dichotomy between substantive and procedural law that is commonly believed to exist has been recognized to result in ‘several limitations, such as the exclusion of a careful balancing of competing values’Footnote 21 as between these categories. The well-known outcome in Jurisdictional Immunities – with the ICJ concluding that a potential conflict between the availability of immunity and the gravity of the unlawful act would amount to a ‘logical problem’Footnote 22 – is the consequence of such an approach. To overcome this issue, some writers have attempted to show that there is no clear-cut distinction between substantive and procedural law as ‘[a]ll international norms derive from the agreement of states or acceptance by the international community as a whole’.Footnote 23 This – especially in the context of jurisdiction which is grounded on ‘consent’ – would allow for a more consequential effect of norms of a superior status (i.e. jus cogens) on jurisdictional instruments and enable ICTs to employ a more comprehensive balancing approach. However, the manner of creation and application of procedural rules seems to warrant at least separate consideration,Footnote 24 a divide that the ICJ also seems to pursue. Thus, beyond the fact that the overwhelming majorityFootnote 25 of ICTs adopt their own procedural rules and develop procedural maxims and principles through their own case law, judges and arbitrators also enjoy considerable discretion in accommodating the particular circumstances of a given case within the procedural framework. But also on a more general level, they must strike a balance between various interests, particularly the rights of the parties, any potential public interests – strengthened through a growing consensus on matters transcending the traditionally bilateralist procedural frameworkFootnote 26 – and the sound administration of justice. These latter aspects result in a continuous underlying level of development of procedural rules and the powers of ICTs, which follow a separate – but not entirely distinct – track of development from substantive law.
This does not mean that each of these ICTs develops their procedure in isolation. In fact, there is considerable alignment among the different frameworks. Among others, this is owed to the common social and legal environment that the members of the respective bodies operate inFootnote 27 as well as a shared understanding among adjudicators of the methodology and operation of legal proceedings.Footnote 28 This ties the formulation and application of procedural rules and powers directly to the (evolving) international judicial function(s) of ICTs.
This understanding also underpins the widely shared view that the international judicial function goes beyond a private (dispute settlement) function.Footnote 29 Different fora might place more weight on different aspects thereof but, overall, all ICTs – through their judicial process and reasoning – contribute to the advancement of the ‘system’ of international law.Footnote 30 This changes their operation, but also shifts attention to a different audience, i.e., their findings reach not only the parties before them but resonate more broadly across the international legal community. Within this wider role, adjudicative bodies retain a certain degree of functional autonomy to be more or less active – or, put differently, more autonomous from their creators and/or parties – in pursuing broader community objectives. Through their operation, ICTs are therefore recognized as indispensable elements of the international legal system, entrusted with working towards ‘the realizing of the purpose of the law, namely, in finding, in case of doubt, solutions most conducive to the benefit of the community as whole and to the necessity of stable and effective legal relations between its members’.Footnote 31 The Lauterpachtian view on the completeness of international law thus fundamentally rests on an international judiciary willing to move beyond a narrow dispute-settlement role, seeking answers to novel situations, whether through analogies, general principles, other forms of judicial creativity, or ultimately by relying on certain broader ‘public’ or common values.Footnote 32
The following approaches the relationship between the international judicial function and international procedure with two observations that highlight the power of international procedure.
2.1 Procedure as an autonomous driver of development
Even though procedural law is often described as ‘something subsidiary, in the sense that [procedural rules] purport to promote the realization of substantive law’,Footnote 33 more recent observations rightly focus on its autonomous role,Footnote 34 showing that in many aspects, substantive law is even dependent on procedural law, most obviously when it comes to questions of standing or different types of incidental proceedings. In other words, ‘substantive law is often secreted in the interstices of procedure’.Footnote 35 There is thus a mutual co-dependence of these two fields,Footnote 36 which is particularly pronounced when it comes to questions of jurisdiction which structure the entire course of proceedings by determining both the scope of judicial inquiry and the reach of the operative part.
The recognition of such co-dependence might better be understood by viewing the relationship between the two fields ‘as a spectrum with a permeable boundary’.Footnote 37 Different forces, actors, and considerations influence both fields, and both are generally susceptible to adaptation through the same legal instruments and tools. The dividing line between the technical, organizing side of procedure and the ‘procedural-substantive’ side is therefore ‘movable’ and ‘may be placed wherever an objective examination of … judicial institutions indicates is necessary’.Footnote 38 This fluidity is subject to legal interpretation, where procedural and substantive elements are not rigidly distinctFootnote 39 but rather interact in ways that require ongoing judicial engagement. Viewed from this angle, this provides for a greater ‘power of procedure’Footnote 40 which exceeds the transmissive function, i.e., procedure not only is expected to implement ‘the will manifested in the body of substantive laws’Footnote 41 but it autonomously contributes to the ways and means of how common values can be enforced. One of the most obvious examples of the autonomous effect of procedure can be found in Obligation to Prosecute or Extradite, where Belgium only raised its erga omnes partes argument upon questions from the bench during the provisional measures phase, initially solely appearing as a ‘specially affected state’.Footnote 42 In the end, the Court opted to confirm standing on this basis, observing that it thus need not determine whether Belgium in fact had a ‘special interest’.Footnote 43 It thereby gave procedural expression to the collective nature of the obligation at issue.
2.2 ICTs have a special role to play when it comes to common values which shapes (judicial policy/discretion in) procedure
Conceptually, both domestically and internationally, we can find arguments that it falls to the judiciary – through interpretation and application of laws and the balance of rights and interests of parties – to identify situations which may potentially violate fundamental or common values of a community.Footnote 44 Alongside the interpretation and application of substantive international law on matters of common concern, they also serve as procedural gatekeepers, managing the flow of cases, deciding who has standing and who can participate in proceedings, and determining which claims will be subject to judicial reasoning and eventually reach final judgement.
If we agreeFootnote 45 that ICTs are (at least among) the appropriate actors that work towards the protection and enforcement of common values, the exercise of procedural powers – including in regard to jurisdiction – should likewise be informed by them.Footnote 46 More specifically, while substantive and procedural law are subject to influence by different forces and actors, both are generally susceptible to and adaptable through the same legal instruments and tools, such as different interpretation techniques.Footnote 47
In many aspects, the above-described interlinkage corresponds with an invitation directed at these bodies to pursue a more open and progressive judicial policy. Such judicial policy refers to the proactive use of judicial techniques to take common values of the international community into consideration, providing guidance and clarification of as well as complementing the legal consequences attributed to the multilateral public order. However, this is not an ‘open-ended power’Footnote 48 but must be performed within the exercise of judicial powers/rules.Footnote 49 As elusive as the term and concept of judicial policy may be, there is general agreement that it bears some connection to the internal and external perception of a body’s work and its legitimacy. It thus is also linked to the question of which guiding values ICTs identify as informing the exercise of their procedural powers. Procedure is not only a particular mode of delivering justiceFootnote 50 – in itself a valueFootnote 51 – but also a means of realizing and reinforcing other shared values.
There are two dimensions of judicial policy: a narrower and wider one. The narrower dimension focuses on the general orientation underlying a court’s jurisprudence in relation to basic legal issues and its understanding of its judicial function.Footnote 52 This also might be tied to the use of procedure to protect certain trans-substantive ‘house-keeping values’,Footnote 53 such as the equality of arms or the good administration of justice. Even though the judicial function, and expectations placed upon it, have expanded (as argued above), ICTs are often inclined to preserve these long-established system-internal values which developed in a framework historically rooted in the sovereign equality of states and bilateralism.Footnote 54 The wider dimension of judicial policy, by contrast, relates to ‘the way by which the Court tends to apply international law, in order to adapt the interpretation and contents of the applicable rules to the necessities which it considers to be implied by the general evolution of the international legal order’.Footnote 55 From this viewpoint, the systemic role of ICTs is more enhanced, with the protection of common values becoming more pertinent.
These two dimensions of judicial policy are interconnected, even if they at times operate as opposite poles. In practice, courts usually strive to balance them. This balancing introduces a (subjective) discretionary element into the process of self-regulation. Tied to this interpretative flexibility lies the ‘power’ of choosing among the different – partially conflicting – objectives and functions the respective body exercises. While ICTs rarely expressly acknowledge the influence of common values on their discretion in the exercise of their judicial function,Footnote 56 such values may find practical expression in at least three, partially overlapping, ways: firstly, in procedural rules that expressly afford discretion to the respective ICT, such as in regard to when to order the joinder of proceedings,Footnote 57 or how to deal with organizational matters, such as whether to hold hearings on matters of fundamental importance,Footnote 58 as well as in relation to evidentiary matters, allowing in theoryFootnote 59 for a proactive fact-finding role. Moreover, at the ICJ, the power to indicate provisional measures proprio motu may be used not only to preserve the rights of parties but also to safeguard broader public interests (even beyond the petitum Footnote 60 ).
The second category encompasses the flexible interpretation and application of existing procedural rules. Within this category, procedural powers that implicate the protection of common values include, e.g., the framing of disputes to avoid questions of (in)admissibilityFootnote 61 or the generous interpretation of rules on third-party intervention or participation.Footnote 62 In addition, issues relating to the management of proceedings also fall within this category. For example, the flexible interpretation of procedural rules in a manner most conducive to rendering good justiceFootnote 63 when allowing proceedings to continue in cases involving serious allegations like genocide, even where the jurisdictional link appears tenuous, so as to give parties the opportunity to develop ‘a reasonable connection’ to the jurisdictional basis.Footnote 64 This category often interacts closely with the substantive level, especially when it comes to questions of admissibility or jurisdiction.
A final category derives from the flexibility to complement the procedural framework through inherent powers. While some authors are notably restrictive in the assessment of what is necessaryFootnote 65 and primarily understand the inherent powers to relate to more technical elements of judicial proceedings (e.g., to safeguard ‘judicial integrity’Footnote 66 ), others have shown that inherent powers may also relate to the discretionary space enjoyed by judges/arbitrators in the absence of contrary instruction. The precise scope of powers – alongside the determination of what is necessary – will therefore very much depend on the legal environment the specific body is operating in. Examples of further-ranging inherent powers relating to the exercise of jurisdiction are ‘the power to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction’,Footnote 67 including on questions of non-compliance by a state with previous court/tribunal decisions, or to raise certain issues ex officio (e.g., in regard to jurisdiction ratione personae Footnote 68 ).
It follows that common values do not necessarily always exert their full force directly through immediate legal consequences – and it is not necessary that they do. They, however, may guide the choices that ICTs make. Ruiz Fabri concludes along these lines on procedural law that
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• Elle est indispensable, et même inévitable.
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• Elle n’est pas purement technique et neutre. Elle permet des choix mais aussi elle en exige.
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• Elle est donc tout autant que le droit matériel au service de valeurs (car la légitimité dans la prise de décision ne peut être correctement comprise que dans un contexte de valeurs).Footnote 69
While this should arguably lead to a strong interdependency between procedural powers and the common values of the international community, the performance of a more proactive judicial policy does not stand unopposed.Footnote 70 In any event, given that it is most often the ‘interpretative and epistemic community’Footnote 71 which evaluates whether the expectations have been satisfied, ICTs can most successfully strike the necessary balance among competing interests and expectations of the parties and the international community through the persuasive quality of their judicial reasoning, expanding on which values have served to guide their decision to exercise their procedural powers.
3. Common values and jurisdiction
The jurisdiction of ICTs refers to the existence, exercise, and limits of the authority to decide a dispute between the parties with binding force. Given the essential role of jurisdiction in the judicial process, its guiding principles have been well-researched. Much of this scholarship has focused on jurisdiction in a bilateralized procedural framework – i.e., jurisdiction as the result of the overlapping consent of the parties to have their dispute settled by the respective body. While many aspects of the procedural framework of ICTs bear a direct link to consent, this is indeed most evident in the case of jurisdiction.
Jurisdictional limits can hinder the protection of common values in several ways, e.g., by lack of consent from the respondent or an indispensable third party; or through the fragmentation of disputes where consent is limited to a narrow subject matter or a specific party. ICTs may also be constrained by the scope of the parties’ submissions. Nevertheless, the following shows that despite the oftentimes strict corset of jurisdictional rules, ICTs retain (narrow) discretion on these issues which may be shaped by common values.
3.1 Some remarks on jurisdiction and consent
The ‘rule of consent to jurisdiction’Footnote 72 determines and limitsFootnote 73 the scope of jurisdiction and cannot be supplemented by proprio motu powers of the courtFootnote 74 or – at least according to the majority opinion – the status of a norm at dispute.Footnote 75 As the procedural gateway to the exercise of judicial authority, its role must not be underestimated, with it ‘legitimating the operation of international courts’Footnote 76 and grounding their work in ‘the most basic principle of the international legal system’.Footnote 77 The determination of whether jurisdiction rests on a valid expression of consent therefore often constitutes the most delicate task of ICTs, particularly when faced with indeterminate treaty language or conduct from which implicit consent must be deduced.
Notably, the requirement of consent is not always expressly provided for in jurisdictional instruments – it merely implicitly follows from the various jurisdictional titles and has repeatedly been emphasized as a jurisprudential canon.Footnote 78 While of overarching importance, it is, thus, always accompanied with some element of fiction – in particular in terms of establishing the intentFootnote 79 and the scope and limits of its substance. This process is where discretion is exercised, with ICTs verging between a more generous, flexible approach or a stricter, more formalist approach. The discretionary space of ICTs to decide whether they enjoy jurisdiction is thus not explicit but implicit in the choices and techniques they resort to.
Overall, ICTs are cautious to not risk the perception of overstepping their competence and risk proceeding ultra vires.Footnote 80 This becomes particularly evident when it comes to the interpretation of jurisdictional/compromissory clausesFootnote 81 or reservations to optional clause declarations.Footnote 82 Even though overall there is no presumption in favour of a restrictive interpretation of jurisdictional instruments, ICTs are overwhelmingly hesitant to expand their jurisdictional authority too far, even when the subject matter concerns common values, potentially risking a loss in legitimacy and withdrawal or resistance.
That said, ICTs have the power to settle a potential dispute about their own jurisdiction (compétence de la compétence), making them the ultimate arbiter on the matter. Through this principle they enjoy interpretative authority in defining the scopeFootnote 83 of their jurisdiction and applying it to the facts. In particular, even though ‘consent’ remains the guiding principle of international adjudication, ICTs have at times resorted to more obvious value-oriented interpretation of jurisdictional clauses to achieve the effective protection of common values.Footnote 84 Of course, some regimes might be more inclined to pursue such interpretation, particularly where such values are directly linked to their mandate.Footnote 85 This notwithstanding, the maxim of effective protection also transcends regimes when common values are enshrined more broadly in treaty or customary law. Arguably, this would appear to be especially pronounced in instruments of a humanitarian characterFootnote 86 and in relation to fundamental principles of the international legal order more generally.Footnote 87 That this may result in decisions adopting a broad scope of jurisdiction – at times at the cost of affording consent its full role – is therefore not solely by institutional design but also subject-matter dependent.
Against this background, jurisdictional reasoning does not operate as a purely technical thresholdFootnote 88 but provides ICTs the opportunity to soften the role of consent, particularly when common values of the international community are at stake. For sake of demonstration, the analysis particularly focuses on the practice of the ICJ, an institution often described as conservative, state-centred and zealous in observing the limits of consent.Footnote 89 In recent practice, the Court has further reinforced this perception by demonstrating a continuously restrictive approach to reservations affecting the scope of its consent-based authority.Footnote 90 However, this does not exhaust the picture. Even at the ICJ, common values have at times influenced the interpretation and application of jurisdictional rules, revealing a more flexible relationship between consent and common values-oriented practice than a purely formalist account would suggest.
3.2 Requirement of consent and common values
As noted above, formally, there is little reason to doubt the continuing validity of the consensual principle guiding jurisdiction in contentious cases.Footnote 91 While there is considerable flexibility when it comes to the form of consent, there must be ‘an unequivocal indication’ of the desire of a state to have given consent in a ‘voluntary and indisputable manner’.Footnote 92 Hence, there is almost unanimous agreement that also the doctrinal conception of common values – jus cogens and erga omnes – cannot compensate for the lack of consent. The ICJ has emphasized in numerous instances that the status of a norm does not suffice to overcome that. In the Legality of the Use of Force cases initiated by Yugoslavia, the Court underlined consent as ‘one of the fundamental principles of its Statute’Footnote 93 and rejected the requests for provisional measures as it lacked prima facie jurisdiction, despite acknowledgement that the subject-matter was among ‘the most serious cases to come before the Court for injunctive relief’.Footnote 94 This was echoed in Armed Activities on the Territory of the Congo (New Application), with the Court emphasizing that ‘the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties’.Footnote 95 Despite ‘serious concerns’Footnote 96 by several judges that this still was the status quo, the Court placed the principle of consent above the fundamental interest of having the gravest crimes adjudicated.
In contrast, the role of consent is significantly weaker when the legitimating force of consent is ‘once removed’. This is apparent in proceedings involving third parties, with the Court clarifying that its competence in matters of intervention is not ‘derived from the consent of the parties to the case, but by the consent given by them, in becoming parties to the Court’s Statute, to the Court’s exercise of its powers conferred by the Statute’.Footnote 97 A similar logic applies in advisory proceedings. Here, the absence of express consent has so far not barred the exercise (or even less so the existence) of jurisdiction in disputes relating to common values that are submitted through advisory proceedings (see, e.g., Namibia, Western Sahara, Wall, Chagos, Occupied Palestinian Territory). In none of these instances did the Court accept the argument of circumvention of state consent as a compelling reason for it not to exercise its advisory function, emphasizing instead the ‘broader frame of reference’Footnote 98 of the question submitted. While this may be viewed as a partial decoupling from inter partes consent, the primary purpose of advisory proceedings remains the clarification of the applicable law rather than dispute settlement as such. The former may inform the latter, but it does not necessarily do so.
Finally, provisional measures proceedings likewise demonstrate the softening of consent.Footnote 99 This is especially evident in regard to ‘non-aggravation measures’ which do not directly aim at preserving the respective rights of the parties but are rather justifiable through their manifest ‘“public order” character’.Footnote 100 Most recently, the ICJ has found an autonomous violation of such measures following Russia’s war of aggression against Ukraine,Footnote 101 a step that was heavily debated among the members of the bench on whether it was still covered by the parties’ consent.Footnote 102
In these latter ‘once removed’ scenarios, greater room is afforded for the balancing of ‘competing considerations’,Footnote 103 namely the exercise of jurisdiction in cases touching upon fundamental or common values, on the one hand, and the right of a state not to have its rights and obligations determined without its consent, on the other. In these contexts, the ICJ’s ‘responsibilities in the maintenance of international peace and security’Footnote 104 therefore carry greater weight, with the public dimensions of the Court’s judicial function becoming more visible.
3.3 Between flexibility and formality
Despite the continued validity of consent as the cornerstone of jurisdiction, the ICJ has shown leniency to formal requirements when considering the jurisdictional basis, accommodating the complexities attached to international litigation. More particularly, the Court has generally been hesitant to apply an overly stringent standard in establishing consent.Footnote 105 As reiterated in Fisheries Jurisdiction (Spain v. Canada), in cases of doubt over whether the Court has jurisdiction or not it will consider ‘whether the force of the arguments militating in favour of jurisdiction is preponderant’Footnote 106 rather than require it to be proven beyond reasonable doubt. Hence, at times, the Court’s willingness to exert jurisdiction in cases pertaining to international peace and security seems to have tipped the balance in favour of jurisdiction. For example, in Nicaragua, despite never having received Nicaragua’s instrument of ratification of the PCIJ Statute, the Court emphasized that the conduct of Nicaragua and the United States showed that both believed ‘Nicaragua was bound by the Court’s jurisdiction’ and that this therefore amounted to a ‘valid mode of manifestation of [Nicaragua’s] intent’.Footnote 107 The Court also demonstrated flexibility when it came to procedural irregularities pertaining to its jurisdiction, notably even beyond the narrow parameters that might be warranted in light of the sound administration of justice and procedural economy.Footnote 108 In Croatian Genocide, the Court indeed showed such flexibility when it came to the respondent’s deficiency of lack of access to the Court, even though any new application by Croatia would have in fact been barred by the FRY’s reservation attached to its subsequent accession to the Genocide Convention.Footnote 109 The Court nevertheless allowed the proceedings to continue, arguably reflecting the particular normative weight of the interests at stake.Footnote 110
Aside from written form, there are also no ‘particular formal (as opposed to substantive) requirements’Footnote 111 that need to be met under Article 40 ICJ Statute or Article 38 Rules of Court (ICJ) for the commencement of proceedings. This procedural openness has also allowed the Court to be more forthcoming when it comes to the identification of the jurisdictional basis by the parties. Thus, even though it is ‘settled jurisprudence … [that] jurisdiction must be determined at the time that the act instituting proceedings was filed’,Footnote 112 the Court has at timesFootnote 113 allowed subsequent additions to the jurisdictional basis.Footnote 114 This practice suggests that the Court may prioritize the ‘effective’ adjudication of disputes over strict adherence to procedural formalism.
The balance between flexibility and formality can be seen in the context of erga omnes (partes) litigation and the question of how this might affect a tribunal’s jurisdiction. Thus, where a state invokes responsibility not on the basis of individual injury but as a non-injured state, the applicant will effectively act in a representative or ‘procedural trustee’ capacity. As confirmed by the Court in The Gambia v. Myanmar, this proxy status does not, as such, raise questions of personal jurisdiction, provided that the formal elements are fulfilled, i.e., both the applicant and respondent are parties to the relevant treaty and have accepted the jurisdictional clause therein.Footnote 115 That being said, while the Court appears in principle open to allow for such representative claims, this has been met by a parallel shift towards greater formality in other jurisdictional questions that likewise remain tied to the applicant. Hence, the Court has maintained such formality also in relation to the assessment of jurisdictional preconditions such as the existence of a genuine disputeFootnote 116 and the strict and reciprocal determination of the temporal scope of its jurisdictionFootnote 117 . This arguably reflects an attempt to preserve the genuineness of consent-based jurisdiction.
3.4 Title and scope of jurisdiction and common values
The title of jurisdiction provides the legal basis or source granting an ICT the authority to adjudicate a case. It serves as the foundation for determining the scope of jurisdiction, which defines the boundaries within which this authority may be exercised. Determining the scope of jurisdiction constitutes one of the most delicate tasks in the exercise of jurisdiction. Moreover, irrespective of the jurisdictional basis, the respective body will have to interpret the submissions of the parties to determine whether they are covered by ‘consent’, and evaluate how much further the implied consent may allow it to exercise its jurisdiction, without risking the perception of undermining the consent requirement.
3.4.1 The use of extraneous rules relating to common values in the determination of the material scope of jurisdiction
In most instances, the clauses reflecting the consent do not specifically define the material scope of jurisdiction.Footnote 118 ICTs must therefore turn to the remainder of the treaty/agreement/declaration to determine the extent of rights and obligations over which they have jurisdiction. This includes resort to a ‘deeply obscure and subjective process’Footnote 119 of interpretation which allows ICTs ‘just the necessary degree of flexibility to fashion their own reasoning’.Footnote 120 This may require the respective body to engage with legal fields or norms beyond those expressly regulated by the specific treaty or instrument relied upon. Such engagement may follow directly from the nature of the dispute itself, i.e., there might be certain incidental matters that need to be addressed first, or the dispute might be part of a broader conflict, raising questions on the interrelationship of different subject-matters, some of which may pertain to common values. In most instances, such a constellation does not constitute a ground for refusing to exercise jurisdiction,Footnote 121 and at times may even require the respective body – albeit cautiously – to situate the claims advanced within the wider legal context.Footnote 122 Here, the expansion of the material jurisdiction can be tied to the parties’ implied consent that issues which are considered necessary and purely ancillary Footnote 123 to the resolution of the dispute submitted fall within the adjudicating body’s jurisdiction, often explained by the link between inherent jurisdiction and the judicial function. Even though the ICJ has been considered particularly cautious not to overstep the limits of consent,Footnote 124 the tie to the judicial function has at times served as an anchor for a more expansive argument that the Court should invoke its role in securing ‘compliance by State with the general principles of international law’, including the duty of peaceful settlement ‘in face of threats of, or actual recourse to, the use of force’.Footnote 125
The necessity to expand the interpretative framework may also stem from the invoked instrument itself, e.g., where it contains an express or implied referral clause to other rules of international law.Footnote 126 But even in the absence of such a referral clause, the engagement with extraneous rules may nevertheless arise from the systemic character of international law, requiring recourse to other fields of and general international law in order to give effect to the rights and obligations at issue. While such recourse primarily operates at the level of interpretation, it may, in certain instances, also intersect with questions of applicable law. This may also reflect an acknowledgment of certain effects of a value-oriented international legal order, particularly jus cogens.Footnote 127
Finally, recourse to extraneous rules may also be necessary by the practical impossibilityFootnote 128 of exhaustively regulating all relevant aspects within a single normative framework. As the ICJ pointed out in Bosnian Genocide:
The jurisdiction of the Court is founded on Article IX of the Convention, and the disputes subject to that jurisdiction are those ‘relating to the interpretation, application or fulfilment’ of the Convention, but it does not follow that the Convention stands alone.Footnote 129
These extraneous rules encompass those norms that have implicitly been consented to, such as certain procedural norms, or other norms such as the rules on state responsibility that are needed to achieve the ‘more functional components of international adjudication’.Footnote 130 Alongside the abovementioned interpretative expansions of the material scope of jurisdiction, these norms make out a core that finds application in any given context. But, as just seen, the circle can be drawn progressively wider to include inter alia also incidental, referred, or systemic matters, forming ‘concentric normative circles … each to a greater or lesser degree bound up with the treaty provisions, rippling across the hitherto glassy waters of the treaty itself’.Footnote 131
Determining the content and outer limit of these circles is notably difficult and often subject to the discretion and judicial policyFootnote 132 of the adjudicating body concerned. Recourse to such norms, as mentioned, thus ‘reconciles two, prima facie, opposing premises – consensual and limited jurisdiction of the Court and the nature of the judicial function of the Court as an organ of international law’.Footnote 133 The extent to which ICTs engage with such extraneous norms will therefore again depend not only on the content of the relevant treaty or jurisdictional instrument, but also on their understanding of the judicial function within the international legal order.
The following addresses three of these aspects in more detail. It first considers the interpretative expansion of limited subject-matter jurisdiction through engagement with extraneous norms, before turning to indispensable common value norms that operate as limits on the validity and applicability of treaty-based obligations. Finally, it turns to the role of common values in identifying the petitum.
3.4.2 Common values and limited subject-matter jurisdiction
The rules on interpretation constitute the most obvious avenue through which extraneous norms relating to common values may be brought into the scope of jurisdiction provided by a specific jurisdictional instrument. These extraneous norms can be resorted to understand, clarify, and, where appropriate, to further develop or modify the meaning of certain standards, terms, or obligations enshrined in the relevant instrument, and, in a second step, to assess whether this thus-informed meaning has been violated. However, such extraneous norms do not generally become part of the applicable law which the adjudicating body may independently declare to have been violated.Footnote 134
That being said, in some instances the ICJ has gone further than merely interpreting the relevant provision by resort to extraneous norms. A prominent example is Oil Platforms. Iran argued that the US, during the ‘Tanker War’ of the 1980s, had breached the 1955 Treaty of Amity, with general international law serving ‘to identify the content and scope of the obligations arising from the Treaty’.Footnote 135 The US, by contrast, maintained that the claim exceeded the Treaty’s jurisdictional scope and that, in any event, based on its Article XX(1)(d) (‘essential security interests’), the ICJ lacked jurisdiction. The Court rejected these objections, holding also that Article XX(1)(d) did not limit jurisdiction but constituted a possible defence on the merits.Footnote 136 On the merits, the ICJ notably examined the defence before determining whether the treaty had been breached,Footnote 137 explaining, inter alia, that the ‘original dispute’Footnote 138 in fact turned on the question of use of force.Footnote 139 On this basis, it dismissed the US’ argument that there was no compelling reason to ‘examine and rule on such issues’,Footnote 140 and proceeded to address the US’ claim as a preliminary matter. Reversing the ordinary order of examination opened the door for it to engage at length with the question whether US conduct could be justified as an act of self-defence through the lens of law guiding the use of force; as in the end no violation of the treaty was found, an aspect which might be considered futile and an obvious act of judicial policy of the Court. In substance, the Court justified its approach by referring to Article 31(3)(c) VCLT, but added that ‘[t]he application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty’.Footnote 141
Even if the ICJ’s approach proved controversialFootnote 142 and arguably stretched the limits of interpretation,Footnote 143 it signaled that a dispute concerning the ‘interpretation or application’ of a treaty should not be treated in isolation where common or – even more so – fundamental values of the international community are at stake. Moreover, the Court maintained a formal link to treaty interpretation, distinguishing its approach from the even more expansive reliance on applicable-law clauses by certain Law of the Sea Convention (LOSC) tribunals.Footnote 144
This notwithstanding, the Court has, more often than not, displayed a cautious and, at times, markedly restrictive attitude towards the engagement with extraneous norms under treaty-based jurisdiction. Article 31(3)(c) VCLT, e.g., has been applied by the Court in other instances in a much more narrow and cautious fashion, with the Court justifying its extension beyond the more immediate instrument by some – sometimes closer, sometimes less closeFootnote 145 – proximity, while at other times keeping the distinct purpose of instruments governing a similar subject matter in mind.Footnote 146
This hesitation can also be seen in the choice of jurisdictional test when determining ‘whether the violations … pleaded … do or do not fall within the provisions of the Treaty and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain’.Footnote 147 While the Court emphasizes in this regard that this exercise ‘may require, to a certain extent, that the Court interpret the provisions which have allegedly been violated and which define the scope of the treaty’,Footnote 148 it retains discretion on the level of scrutiny or certainty required in order to decide whether the conduct complained of falls within the normative scope of the instrument. Indeed, its methodological approach has varied over time, reflecting the judicial policy of the respective benches. Primarily two tests can be identified, the provisional or definitive approach,Footnote 149 each allowing for different levels of inquiry and flexibility on the part of the respective international body,Footnote 150 and both loosely justified by reference to the ‘good administration of justice’.Footnote 151 The provisional approach rests on a preliminary assessment of whether the claims could plausibly be brought ‘within’ the treaty – leaving their final determination to the merits stage – and thus allows for at least an initial softening of the role of consent. This was applied, e.g., in Nicaragua, where the US had submitted that there had to be some ‘reasonable connection’ between the claims made and the invoked the Treaty of Friendship, Commerce, and Navigation (FCN Treaty). In response, the ICJ merely listed the invoked provisions and noted that in their light and the Preamble’s references to peace and friendship ‘there can be no doubt’ that there was a dispute between the parties ‘as to the “interpretation of application” of the Treaty’.Footnote 152 However, more recent practice at the ICJ has tended to favour the stricter – definitive – standard of review at the jurisdictional stage which places greater emphasis on the ‘consent of the respondent’.Footnote 153 This limits the scope for engaging with extraneous norms in the absence of a sufficiently close nexus to the treaty relied upon. Along these lines, the Court has dismissed arguments on obligations arising in connection with the protection of the environmentFootnote 154 or grave breaches of fundamental norms.Footnote 155
The conceptual fluidity of the Court in switching between these interpretative tests and methods – partially simply justified by reference to the sound administration of justice – offers it procedural points at which it may exercise limited discretion, enabling it to either restrain or facilitate the consideration of claims implicating common values. The overall cautious approach nevertheless appears to be driven by concerns about the limits of consent and the risk of the perception that treaty-based jurisdiction might otherwise operate as a proxy for general compulsory jurisdiction.
3.4.3 Indispensable common value norms as limits on validity and applicability
The effects of a value-oriented international legal order include the question of validity/invalidity of a norm as well as the non-applicability of conflicting norms.Footnote 156 This can – and, in certain circumstances, must – also have a fundamental bearing on question of jurisdiction. As emphasized by Mbengue and Zouapet, ‘[t]here can only be autonomy of will or legal liberalism within the general limits of the international community as a whole …’.Footnote 157 However, given the softened relation to consent, the recourse to such common – or rather, fundamental value – norms generally seems limited to situations where it is deemed a ‘functional necessity’,Footnote 158 i.e., where they are likely to affect the outcome.
Traces of this can already be seen early on in arguments of Judge Schücking, stressing that the validity of an invoked treaty must be assessed in light of the limits set by international law and that a court cannot be ‘bound to apply conventions which it knows to be invalid’.Footnote 159 This includes examining whether certain measures, invoked as a defence for non-compliance, meet international law thresholds. The abovementioned reasoning in Oil Platforms may again be taken as an illustration, with the Court turning to the ‘essential security’ clause (Article XX(1)(d) Treaty of Amity) to address the question of legality of the US’ defence on its use of force, a matter which the US had claimed to fall outside of the Court’s jurisdiction. Addressing the legality of the measures, the ICJ found that both the object and purpose of the Treaty in question and general international law precluded it from accepting that:
Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force.Footnote 160
The Court thus affirmed that treaty provisions cannot override peremptory norms, reaffirming that jus cogens sets a ‘legally insurmountable limit to permissible treaty interpretation’,Footnote 161 shaping both jurisdiction and the validity of treaties.Footnote 162
The ICJ has also indicated that its jurisdiction may extend to assessing the non-applicability of treaty obligations where they potentially conflict with binding Security Council resolutions enjoying priority under Article 103 UN Charter.Footnote 163 Although the Lockerbie cases were withdrawn before a merits judgement, the proceedings demonstrated the Court’s willingness to treat higher-ranking norms reflecting common values – here, collective security under the UN Charter – as relevant to the determination of its jurisdiction.Footnote 164
A separate question arises whether the Court must ex officio raise these points if not argued by the parties. In his 1953 Report on the Law of Treaties, Lauterpacht already laid out that an ICT could make a finding of invalidity also proprio motu. Footnote 165 The ICJ has so far been reluctant to do so. In Gabčikovo-Nagymaros it simply noted that as neither of the parties had ‘contended that new peremptory norms of environmental law had emerged’, it would not be ‘required to examine the scope of Article 64’Footnote 166 VCLT. While quite possibly the Court would not have identified any peremptory norm of environmental law in 1997, the starting premise that such a norm must have been argued by one of the parties is open to question. It may be explained, at least in part, by the Court’s longstanding reluctance, until relatively recently, to engage with peremptory norms. Nevertheless, the invalidity or non-inapplicability of a norm or treaty inherently falls within the scope of jurisdiction of an ICT, and it is at least arguable that little, if any, discretionary leeway remains to disregard such issues once they arise.
3.4.4 Scope of the dispositif and flexibility in the identification of the petitum
ICTs can also soften the role of consent when identifying the scope of the individual claims, the petitum. In principle, the petitum is set by the parties through their formal submissions. Although it should align with the material scope of jurisdiction and may not exceed it, the petitum is more narrowly defined and articulated through the parties’ pleadings and requests for relief.
In determining the petitum of a dispute, the ICJ has repeatedly emphasized that it must ‘determine on an objective basis the subject-matter of the dispute between the parties, that is, to “isolate the real issue in the case and to identify the object of the claim”’.Footnote 167 In this process, the Court ‘bases itself on the application,Footnote 168 as well as the written and oral pleadings of the parties. In particular, it takes account of the facts that the applicant identifies as the basis for its claim’.Footnote 169 While the petitum may evolve over the course of the proceedings,Footnote 170 the concept extends beyond the object of the claim and also encompasses the cause of action – i.e., the invoked legal basis – more generally (causa petendi).Footnote 171 For example, where a state has invoked standing on the basis of being specially affected, the adjudicating body is, in principle, precluded from recharacterizing the claim and the relief sought as an erga omnes partes claim.Footnote 172 If the petitum evolves too far and threatens to ‘transform the subject of the dispute originally brought before the Court’,Footnote 173 the court faces the challenge of balancing flexibility against the requirements of party autonomy and procedural fairness (‘legal security and the good administration of justice’Footnote 174 ) for the respondent.
In performing the task of determining the petitum, the ICJ has noted that it ‘must conform to the terms by which the Parties have defined this task. If it did not do so, it would overstep its jurisdiction’Footnote 175 (i.e., the principle of ne ultra petita Footnote 176 ). While the Court ‘can construe the submissions of the Parties, it cannot substitute itself for them and formulate new submissions’.Footnote 177 Hence, even when a court possesses a broad jurisdictional mandate, it should ‘abstain from deciding points not indicated in those submissions’.Footnote 178 There is a difficult balance that must be struck in this regard, as ICTs ‘must also exercise [their] jurisdiction to its full extent’Footnote 179 and cannot simply avoid sensitive questions.
However, this apparent strict corset is not as tight as it seems: first, the ne ultra petita principle does not prevent a judicial body from making independent factual determinations. It also does not ‘preclude the Court from addressing certain legal points in its reasoning …, should it deem this necessary or desirable’.Footnote 180 At times – as in Arrest Warrant – these considerations can serve as valuable obiter dicta, even if they cannot form the basis of the decision reached.Footnote 181 Still, the Court has softened this distinction by allowing for a broad scope of res judicata which extends beyond the operative part of a judgment to also include those parts of the reasoning that constitute the logical premises.Footnote 182 Second, the principle relates to the petitum of the case but does not override the respective body’s task to preserve its judicial function. Hence, there are certain considerations – especially pertaining to the authority of an ICT – that must be considered ex officio (such as the capacity of the parties or the existence of a dispute (Nuclear Tests)). Likewise, the principle cannot curtail statutory powers, such as the power to indicate provisional measures proprio motu (Article 75 ICJ Statute) where considerations of non-aggravation of the dispute and the general preservation of peace and stability assume a correspondingly greater weight. Here, both the preservation of the respective body’s judicial function and certain common values of the international community justify departure from the more immediate consent expressed by the parties.Footnote 183 And third, parties must not specify their petitum – especially when it comes to reparation – in absolute specific terms. In the South West Africa cases, for example, Ethiopia and Liberia asked the Court to ‘adjudge and declare whatever else it may deem fit and proper in regard to this Application and to make all necessary awards and orders … to effectuate its determinations’.Footnote 184
Hence, the relationship between the determination of the petitum and the expressed will by the parties is not entirely straightforward. ICTs retain discretion, if only through the interpretation and construction of the parties’ submissions. For example, the ICJ has shown considerable flexibility when it comes to identifying ‘the true object and purpose’ of a claim and also considered the broader context of the dispute, diplomatic correspondence and ongoing communication, statements and ‘further developments, both prior to and subsequent to the close of the oral proceedings’.Footnote 185 In the Nuclear Tests cases, this ultimately led the Court to find in exercise of its inherent jurisdiction that the dispute had effectively disappeared.Footnote 186 The outcome has correctly been called out for its judicial avoidance techniques – both from members of the Court and beyond.Footnote 187 Nevertheless, it shows that the broader context has an important role to play, exceeding the immediate submissions of the parties.
Against this background, there have been some instances where the ICJ has – at least for some observers – overstepped the confines of the non ultra petita principle in light of considerations of peace and stability. Examples can especially be found in the context of maritime of territorial delimitation disputes, where the need for legal stabilityFootnote 188 and certainty but also the interests and activities of local populations have weighed heavily in the Court’s assessment of the scope of the petitum. For example, in Kasikili/Sedudu Island, the Special Agreement between Botswana and Namibia requested the Court to determine the boundary and legal status relating to the Kasikili/Sedudu Island. However, the Court also addressed the question of navigational rights, both in its reasoning and as part of the dispositif, seeing them as part of its mandate to clarify the island’s legal status.Footnote 189 While the reasoning lacked further explanation,Footnote 190 Judge Koroma justified this broader approach as serving peace and stability.Footnote 191
In Frontier Dispute (Burkina Faso/Niger), the Court was requested to delimit the boundary between the parties, but encountered a specific stretch of territory that was claimed by neither state.Footnote 192 Rather than treating the absence of claims as an obstacle, the Court proceeded to determine the course of the boundary in that area based on a 1960 map drawn up by the Institut géographique national de France (IGN), which was, among others, considered to best reflect ‘the relations between people and territory’ since it was ‘drawn taking into account the consultations undertaken in loco by IGN cartographers with village chiefs and local people’.Footnote 193 While the Court emphasized that this was called for in order to achieve a definitive delimitation – and therefore did not amount to a ruling ultra petita Footnote 194 – it also expressed ‘its wish that each Party, in exercising its authority over the portion of the territory under its sovereignty, should have due regard to the needs of the populations concerned, in particular those of the nomadic or semi-nomadic populations, and to the necessity to overcome difficulties that may arise for them because of the frontier’.Footnote 195
While these examples do not depart from what the parties had been willing to concede,Footnote 196 the ICJ demonstrated flexibility in identifying the petitum in light of the broader factual and legal context, extending beyond the purely technical parameters of the submissions where considerations of peaceful settlement, stability or the protection of common values so require.
4. Conclusions and evaluation
The role of consent in international dispute settlement has long been regarded as a fundamental principle, underpinning the legitimacy of ICTs and their jurisdictional authority. However, as the nature of substantive international law evolves – and within it, the role of consent – a closer examination of judicial practice shows that consent is not an absolute, immovable constraint. Instead, ICTs have, in various ways, softened their role, including when common values of the international community have been at stake. While this by far does not amount to a wholesale rejection of consent, it does illustrate that its function is neither as rigid nor as extreme as traditionally assumed,Footnote 197 but serves as merely one factor working towards safeguarding the authority of the deciding body.
This ‘soft killing of consent’ unfolds across multiple procedural ‘inlets’, with interpretative techniques and choices permeating almost all aspects of jurisdictional delimitation. From this angle, ICTs are afforded considerable power in determining whether or not to allow common values to influence their exercise of jurisdiction, even if the exercise of such power occurs in an environment full of constraints. The traditional depiction of the ICJ as a state-centred body has not lost its explanatory value, but it is incomplete, just as the perception of jurisdiction as a binary matter is too narrow. Recognizing this procedural power sharpens the stakes of jurisdictional reasoning – what role will ICTs, and particularly the ICJ, seek to define for themselves in a world of intensified recourse to international adjudication, under conditions of mounting pressure on the international legal order? It has been suggested that at least in certain contexts, ICTs are viewed among the appropriate actorsFootnote 198 in protecting and enforcing common values of the international community, and it might be argued that this role is only more pressing where states act beyond or at the margins of the law. In this setting, ICTs emerge as key actors to counterbalance power asymmetries and to give procedural expression to collective interests that might otherwise remain unprotected. Finally, their role as narratorsFootnote 199 is particularly significant at a time when international law – or, more precisely, the normative force of the international legal community – is increasingly contested, as judicial articulation can reaffirm shared standards and resist their erosion through inconsistent or unlawful state practice. Turning to international procedure(s) as a means of enforcement is therefore often the most ‘just’ way in resolving the challenges arising from these traits; in an ideal scenario – one that best manages to achieve ‘d’une atténuation marquée des rapports de puissance’Footnote 200 [a marked attenuation of power relations] – it enables a common understanding on law and facts, it overcomes uncertainties as to the content of norms and it resolves conflicting interpretations by the parties.Footnote 201
That said, this should not be taken as a one-way trajectory towards ever-expanding jurisdiction. In many respects, such as the question of dispute crystallization, also more formal and strict approaches are discernible.Footnote 202 As also this move towards formalism ultimately flows from and ties to the international judicial function, the heightened requirements must equally also aim at safeguarding it. This shows that ICTs are not simply softening consent but are also refining its contours in response to evolving procedural demands. Hence, the role afforded to consent in jurisdictional matters in the imperfect utopian ‘peace through law’ visionFootnote 203 continues to reflect the tension between a state-centric legal order and the battle for the protection of common values. Whether the balancing approach strengthens or undermines the authority of ICTs will depend on how persuasively they justify their decisions, ensuring that by ‘killing consent softly’, they do not erode the very foundation upon which their legitimacy rests.
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