Jurisdiction of the ICJ is principally divided into four categories:
- Contentious Jurisdiction
- Advisory Jurisdiction
- Transferred Jurisdiction
- Incidental Jurisdiction
These all jurisdiction are exercisable under certain circumstances and upon the fulfillment of some definite conditions.
A. CONTENTIOUS JURISDICTION
Contentious means ‘debatable’. This is the major form of ICJ’s jurisdiction. It may be conferred to the parties in any of the following three ways:
- By Express Agreement between the Parties
- Under the Principle of Forum Prorogatum
- By Compulsory Jurisdiction
But one thing necessary to have for exercising the contentious jurisdiction is that:
Mutual Consent of the Parties
Before evaluating the jurisdiction of the ICJ, the Article#36(1) of the Statute must be considered. It states that, “The jurisdiction of the court comprises of all the cases which the parties refer to it.” In the decision of Eastern Karelia Case (1923) this provision was further elaborated as; “No state can, without its consent, be compelled to submit its disputes with other.” Another possibility secured is that, the defendant of a case may accept the jurisdiction either by express agreement or by implied defence of the case; after the proceeding has been initiated by the plaintiff state against it.
1. Contentious Jurisdiction by Expressed Agreement
This type of contentious jurisdiction is further divisible on the basis of agreement made between the parties for bringing a case to ICJ.
Article#40 of the Statute states that; “Cases may be brought before the court, as the case may be, by notification of the special agreement or written application to the Registrar.”
This is the classic method in which parties of the conflict draw an agreement to take their case to the ICJ along with defining the jurisdiction of the court in deciding their issue.
Case Reference: Maritime Delimitation & Territorial Questions between Qatar & Bahrain (1995)
An agreement was drawn between the conflicting states in which five areas out of a number of areas of territory subjected to dispute were agreed to be brought in front of the ICJ. But before the case was brought to the court, foreign ministers of both the parties in a meeting held in 1990 decided to use the good offices of Saudis in order to bring all the disputed areas under the agreement to be presented to the ICJ. It was pledged in that meeting, ‘if good offices of Saudis remain unable to produces any further settlement by May, 1991 then, the case would be presented to the ICJ under the existing agreement.’
Consequently, no settlement reached and Qatar unilaterally applied to the ICJ under the existing agreement. Bahrain objected but the court in the light of deal the parties agreed upon in the meeting of 1990 held that it possessed the jurisdiction.
Under the Disputes Clauses in a Treaty made by Parties
The bilateral or multilateral treaties made in the past, which contain the clauses that all their disputes would be settled under the jurisdiction of the ICJ; envisages the court to exercise that defined jurisdiction.
2. Contentious Jurisdiction by Forum Prorogatum
Lauterpacht stated that; “Exercise of jurisdiction by the virtue of principle of Forum Prorogatum takes place whenever, after the initiation of proceedings by joint or unilateral application, jurisdiction is exercised with regard either to the entire dispute or to some aspects as it as a result of agreement, express or implied.” So, it can be assumed that the consent of the other party in exercise of such jurisdiction may be granted by formal, informal agreement or agreement inferred from the conduct. As it was held in Rights of Minorities in Polish Upper Silesia Case; “there seems to be no doubt that the consent of the state to the submission of a dispute may not only result from an express declaration but may also be inferred from the acts conclusively establishing it.” Similarly, in the Corfu Channel Case between UK and Albania the court accepting the UK’s unilateral plea and later deriving consent from the Albania’s implied acts stated that; “There was nothing to prevent the acceptance of the jurisdiction, as in the present case, from being affected by two separate and successive acts.”