Marcelo G. KOHEN Autumn 2010-2011

1. Marcelo G. KOHEN Autumn 2010-2011 Judicial Settlement of Interstate Disputes

2. Preliminary Objections Session 7

3. Preliminary Objections Issues: Jurisdiction of the Court Admissibility of the Application Procedure (Article 79 Rules of the Court)

4. Preliminary Objections Notion Separateness of preliminary objections from the merits of the case Preliminary character Effects

5. Preliminary Objections • Legal grounds: • Essential character of consent for the Court’s jurisdiction • Equality of the parties • Judicial Economy

6. Procedure • Rules of the Court – Article 79 • Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of a memorial... • Notwithstanding paragraph 1 above, following the submission of the application and after the President has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility shall be determined separately.

7. Preliminary Objections Rules of the Court – Article 79 1. ...Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party’s first pleading.

8. Preliminary Objections Case of the Monetary Gold Removed from Rome in 1943 (preliminary objection), (Italy v. France, UK), Judgment of June 15th, 1954, p. 28 “It is indeed unusual that a State which has submitted a claim by the filing of an Application should subsequently challenge the jurisdiction of the Court to which of its own accord it has applied. In the present case it is Italy which, after having seised the Court, has raised an issue as to the Court’s jurisdiction.”

9. Jurisdiction and Admissibility • Jurisdiction • Admissibility of the Application • Substance • Formal • Exceptions having another character (see Nicaragua v. Colombia, Preliminary exceptions, judgment of 13 Dec. 2007, para. 49)

10. Procedure Rules of the Court – Article 79 5. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended... 9. After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. 10. Any agreement between the parties that an objection submitted under paragraph 1 of this Article be heard and determined within the framework of the merits shall be given effect by the Court.

11. Military and Paramilitary Activities in and against Nicaragua, 1984 • Objections on grounds of jurisdiction: • The Nature of Nicaragua’s declaration • Modification of the US declaration • Reservation on multilateral treaties

12. Military and Paramilitary Activities in and against Nicaragua, 1984 • Objections on grounds of admissibility: • Absence of relevant parties • Jurisdiction of the Security Council • The Court’s position in the UN system • Limits to the judicial function in the face of armed conflict • Non-exhaustion of alternative means for settlement of the dispute

13. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007, p. 8 “For the reasons set out in the preceding Chapters, Colombia respectfully requests the Court, in application of Article 79 of the Rules of Court, to adjudge and declare that: (1) under the Pact of Bogotá, and in particular in pursuance of Articles VI and XXXIV, the Court declares itself to be without jurisdiction to hear the controversy submitted to it by Nicaragua under Article XXXI, and declares that controversy ended; (2) under Article 36, paragraph 2, of the Statute of the Court, the Court has no jurisdiction to entertain Nicaragua’s Application; and that (3) Nicaragua’s Application is dismissed.”

14. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007 Does the 1928 Treaty govern the issues submitted by Nicaragua to the Court? This question is related to the merits of the dispute (see para. 40 of the judgment) OR Does it constitute an objection? If so, does it have preliminary character? (see paras. 45-52 of the judgment)

15. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007 Para. 51: "In principle, a party raising preliminary objections is entitled to have these objections answered at the preliminary stage of the proceedings unless the Court does not have before it all facts necessary to decide the questions raised or if answering the preliminary objection would determine the dispute, or some elements thereof, on the merits."

16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BH v. SM) Objection on grounds of lack of jurisdiction ratione personae submitted by Serbia, but done after the Court began dealing with the merits. See paras. 80-140 of judgment of 26 February, 2007 and, in particular, paras. 102-104.

17. Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 13 July 2009 • Costa Rica raised claim to fishing only in Memorial, but not in the Application; • Nicaragua claimed it inadmissible since it ‘was not included nor was it implicit in the Application’ and ‘did not arise directly out of the subject-matter of the Application.’ (para. 135) • Court held as to the first claim that ‘the alleged interferences by Nicaragua with the claimed right of subsistence fishing post-date the filing of the Application’ and as to the second that ‘in the circumstances of this case, given the relationship between the riparians and the river and the terms of the Application, there is a sufficiently close connection between the claim relating to subsistence fishing and the Application’ (para. 137)