CASES ON JURISDICTION

INTERNATIONAL COURT OF JUSTICE

 NICARAGUA V. US
MILITARY AND PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA ICJ REPORTS, 1986
 FACTS

• Nicaragua filed an Application instituting proceedings

against US, together with a request for the indication of
provisional measures concerning a dispute relating to
responsibility for military and paramilitary activities in and
against Nicaragua. The Court then made an Order
indicating provisional measures like requiring US
immediately to cease and refrain from any action
restricting access to Nicaraguan ports, and, in particular,
the laying of mines. However, just before the closure of the
written proceedings on the questions of jurisdiction and
admissibility, El Salvador filed a declaration of intervention
in the case under Article 63 of the Statute, requesting
permission to claim that the Court lacked jurisdiction to
entertain Nicaragua’s Application. In its Order, the Court
decided that El Salvador’s declaration of intervention was
inadmissible inasmuch as it related to the jurisdictional
phase of the proceedings.
 ISSUE

• Whether ICJ had jurisdiction over Nicaragua’s

application.
 RULING

• YES. In order for the Court to exercise jurisdiction under

that provision, both parties must have accepted the
compulsory jurisdiction of the ICJ. While it was not
contested that US had accepted the jurisdiction of the
IC] by virtue of the U.S. Declaration of Consent of 1946, US
maintained that Nicaragua had not accepted the same
obligation. Nicaragua conceded that it had never
submitted a declaration of consent to the jurisdiction of
the ICJ, but asserted that Article 36(5) of the Statute of the
Court made its declaration of consent to the jurisdiction of
the PCIJ valid as to the ICJ. The Court agreed with
Nicaragua, rejecting the U.S. argument that Article 36(5)
did not apply since Nicaragua's declaration had never
been binding under the PCIJ.
LIBYAN ARAB JAMAHIRIYA
V. USA
LOCKERBIE CASE ICJ REPORTS, 1988
 FACTS

• The Libyan Arab Jamahiriya filed 2 separate Applications

instituting proceedings against US and UK, in respect of a
dispute over the interpretation and application of the
Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation signed in Montreal, a dispute
arising from acts resulting in the aerial incident that
occurred over Lockerbie, Scotland. In its Applications,
Libya referred to the charging and indictment of two
Libyan nationals by a Grand Jury of the US and by the
Lord Advocate of Scotland, respectively, with having
caused a bomb to be placed aboard Pan Am flight 103
which caused the death of all the persons aboard.
• Libya pointed out that the acts alleged constituted an offence
within the meaning of Article 1 of the Montreal Convention,
which it claimed to be the only appropriate Convention in force
between the parties, and asserted that it had fully complied with
its own obligations under that instrument, Article 5 of which
required a State to establish its own jurisdiction over alleged
offenders present in its territory in the event of their non-
extradition; and that there was no extradition treaty between
Libya and the respective other Parties, so that Libya was obliged
under Article 7 of the Convention to submit the case to its
competent authorities for the purpose of prosecution. Libya
contended that US and UK were in breach of the Montreal
Convention through rejection of its efforts to resolve the matter
within the framework of international law, including the
Convention itself, in that they were placing pressure upon Libya
to surrender the two Libyan nationals for trial. US and UK both
filed preliminary objections which requested the ICJ to declare
that it lacked jurisdiction and could not entertain the case,
alleging that there was absence of dispute between the parties.
 ISSUE

• Whether ICJ had jurisdiction over the Application.

 RULING

• YES. It declared that it had jurisdiction on the basis of

Article 14, paragraph 1, of that Convention to hear the
disputes between Libya and the respondent States
concerning the interpretation or application of the
provisions of the Montreal Convention, viz:

Art. 14 (1) Any dispute between two or more

Contracting States concerning the interpretation or
application of this Convention which cannot be
settled through negotiation, shall, at the request
of one of them, be submitted to arbitration. If within
six months from the date of the request for
arbitration the Parties are unable to agree on the
organization of the arbitration, anyone of those
Parties may refer the dispute 88 to the International
Court of Justice by request in conformity with the
Statute of the Court.
 UNITED STATES OF
AMERICA V. ITALY
ELETTRONICA SICULA S.P.A (ELSI) CASE, ICJ REPORTS
1989
 FACTS

• On 6 February 1987, the United States instituted

proceedings against Italy in respect of a dispute arising
out of the requisition by the Government of Italy of the
plant and related assets of Raytheon-Elsi S.p.A., an
Italian company producing electronic components and
previously known as Elettronica Sicula S.p.A. (ELSI), which
was stated to have been 100 per cent owned by two
United States corporations. The Court, by an Order
dated 2 March 1987, formed a Chamber of five judges
to deal with the case, as requested by the Parties. Italy,
in its Counter-Memorial, raised an objection to the
admissibility of the Application on the grounds of a
failure to exhaust local remedies, and the Parties agreed
that that objection should “be heard and determined
within the framework of the merits”.
• On 20 July 1989, the Chamber delivered a Judgment in which
it rejected the objection raised by Italy and said that the latter
had not committed any of the breaches alleged by the
United States of the bilateral Treaty of Friendship, Commerce
and Navigation of 1948, or of the Agreement Supplementing
that Treaty. The United States principally reproached the
Respondent (a) with having effected an unlawful requisition of
the ELSI plant, thus depriving the shareholders of their direct
right to proceed to the liquidation of the company’s assets
under normal conditions ; (b) with having been incapable of
preventing the occupation of the plant by the employees
; (c) with having failed to reach any decision as to the legality
of the requisition during a period of sixteen months ;
and (d) with having intervened in the bankruptcy
proceedings, with the result that it had purchased ELSI at a
price well below its true market value.
 ISSUE

• Whether ICJ has jurisdiction

 RULING

• Yes. Under Article 36, paragraph 1, of its Statute, and

Article XXVI of the Treaty of Friendship, Commerce
and Navigation, of 2 June 1948 ("the FCN Treaty"),
between Italy and the United States provides
jurisdiction in the ICJ incase parties did not settle the
dispute. Parties to a treaty can therein either agree
that the local remedies rule shall not apply to claims
based on alleged breaches of that treaty or confirm
that it shall apply. Yet the Chamber finds itself unable
to accept that an important principle of customary
international law should be held to have been tacitly
dispensed with, in the absence of any words making
clear an intention to do so.