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The conference room was packed for this debate on the value of compulsory jurisdiction in international dispute settlement. The topic was introduced as a “motion before the House” upon which the audience would be invited to vote after conclusion:
In the same building, only steps away, students from all over the world competed in the advanced rounds of the Jessup International Moot Court. The speakers in this debate took on the role of proponents and opponents of the motion – and for a few minutes they were Applicant and Respondent arguing their case before their own distinguished bench consisting of Judge James Crawford (International Court of Justice), Ina Popova (Debevoise & Plimpton LLC) and Stephen Schwebel (World Bank Administrative Tribunal).
Ben Juratowitch (Freshfields Bruckhaus Deringer) took to the podium first, as a strong proponent of the motion. Acknowledging the value of compulsory jurisdiction as a rapprochement of the Davids and Goliaths of the international sphere, he still found that it was natural for Goliath to strongly oppose it. This objection is based on the ‘Trojan horse theory’, which identifies compulsory jurisdiction as a vehicle to bring in substantially weighty questions through smaller, less consequential disputes. Mr. Juratowitch conceded that while compulsory jurisdiction is key in providing parity between states, the question remains whether an “expansive interpretation” – which he defined as an interpretation that goes beyond the objective expression of consent by a state – would go too far. Indeed, at the individual state level, states feeling contradicted by a tribunal’s expansive interpretation will possibly resort to non-compliance with an eventual award or even withdraw from the underlying treaty itself. Indeed, substantive rules and accompanying jurisdictional clauses are often a ‘one package deal’. Mr. Juratowitch concluded that the reaction of a state – withdrawing from a treaty based on an issue with the scope of compulsory jurisdiction – is not unreasonable. Rather, it is up to the court to resist the temptation to act as a ‘council of wise elders’ in their exercise of Competence-Competence, and interpret it in a way that projects them as institutions that can be trusted with the resolution of disputes and not as the ‘saviours of weaker states’.
Loretta Malintoppi (39 Essex Chambers) took the stage next, demonstrating with a concrete example how excessively broad constructions of jurisdictional provisions may undermine the settlement process and effectiveness of international law – UNCLOS (1982), which provides a highly innovative dispute settlement mechanism. Ms. Malintoppi argued that while at first glance, articles 288(1) and 293(1) seem equivalent to article 35-36 of the ICJ Statute, they actually contain the potential for ultra vires decisions. She argued that the scope of the tribunal’s jurisdiction is not all-encompassing but must be limited to the interpretation of the convention, not international law generally. Article 293(1) cannot be used as a Trojan horse to introduce new disputes. This happened however in the Guyana/Suriname Annex VII case in relation to questions on use of force. In that case, the tribunal interpreted its jurisdiction in an expansive manner to include jurisdiction on violations of the UN Charter and general international law. We must, however, see provisions on jurisdiction as separate from provisions on applicable law. Here the tribunal overstepped its boundaries in determining a breach under international law separate from a breach under UNCLOS. Ms. Malintoppi recalled the Libya/Malta case (ICJ) in this regard stating that tribunals must exercise their jurisdiction to the fullest extent, but may not overstep consent given by the parties.
Gleider Hernandez, a former Jessup competitor, took the stage to oppose the motion before the House. Turning to the drafting of the motion, he argued it embodies an idea of overreach, a restrictive canon of interpretation in relation to the category of instruments that confer jurisdiction. This category is, however, immensely broad: special agreements, optional clauses in constituent instruments, compromissory clauses, forum prorogatum at ICJ, etc. Interpretation of each of these categories is different: to strike out expansive interpretation from the outset can only be agreed upon if it falls within the specific intent of the parties. Mr. Hernandez noted that the motion as drafted reflects a specific canon of interpretation relating to jurisdiction, however the method of interpretation is similar as when applied to other instruments of international law. International judicial bodies have the competence to interpret their own jurisdiction, the question is if this Competence-Competence is interpreted in such a way that it no longer complies with what the parties intended. Several cases illustrate that the method of interpretation to be applied as for other instruments of international law. The drafting history of the VCLT in fact reflects a rejection of restrictive interpretation. The consent that states present in instruments establishing jurisdiction is well calculated which carries well thought out risks, which is why expansive interpretation is an overreach.
Tai-Heng Cheng (Quinn Emanuel Urquhart & Sullivan LLP) introduced his opposition to the motion by stating: “Where you stand depends on where you sit”. He argued that the motion is fraught with ambiguity and therefore impossible to support. The winning party will always complain about overly expansive interpretation. The motion does not give us an objective yardstick. At the same time the motion suggest that it carries with it certain risks, damaging the authority and effectiveness of international law. Mr. Cheng argues that the alternative, restrictive interpretation, likewise bears these risks, which we should not forget to take into account in addressing this motion. If we assume that there is no incomplete view of international law, this might risk undermining the legitimacy and effectiveness of international law. The final argument against the motion is that it assumes that expansive interpretation will result in non-compliance by the respondent. There is simply insufficient evidence to support this. What is more, in addressing this issue it is more useful to look at further participation of the respondent party in continuing and future proceedings rather than whether it complies with the decision as a test for assessing whether states really view the jurisdiction as overly expansive. Mr. Cheng views the relevant international case law as mostly supporting this assertion, with the exceptions of the US in the 1986 Nicaragua case, China in the South China Sea arbitration and Russia in Arctic Sunrise.
Ms. Popova took the floor with a list of insightful and pointed questions relating first to the distinction between enforceability and compliance and whether we should be looking at the record of voluntary compliance of states. Second, is there any correlation between states’ withdrawal and the fidelity to canons of interpretation? Finally Ms. Popova asked the oralists to consider the statement of The Philippines representative in the South China Sea arbitration “It is these dispute resolution provisions that allow the weak to challenge the powerful on an equal footing, confident in the conviction that principles trump power; that law triumphs over force; and that right prevails over might.”
Judge Crawford started his comments by asserting that “the best way to win a debate is to interpret the question in a way you can’t lose it”. The question relates to whether there are special rules to interpret compulsory jurisdiction. In reality we see that subsequent changes to jurisdictional provisions by states are fuelled more by considerations than jurisdictional issues. For example, after the Marshall Island case, the UK changed its optional clause even though they won the case.
Mr. Schwebel provided some historical background to the notion of compulsory jurisdiction in international adjudication. The draft Statute of the ICJ that included compulsory jurisdiction was rejected and the solution was the optional clause. Political support for compulsory jurisdiction has varied. But even then, Mr. Schwebel remains hopeful, “we are at a high tide of international adjudication and arbitration, so it all can’t be bad.”
The proponents of the motion responded first. Mr. Juratowitch criticized his opponents for attacking the motion itself but not providing arguments in favour of expansive interpretation as such. Furthermore, he rebutted the use of UNCLOS as an example, as that Convention cannot be used to decide questions of human rights, use of force, or sovereignty as such. While there are undoubtedly questions of international law that are truly incidental to the dispute at issue, the question remains whether it is right for tribunals to confer authority without due regard for the initial grant of jurisdiction. Lastly, he commented that this Motion must be distinguished from issues of non-compliance due to unhappiness with the decision on the merits, as opposed to the decision on competence. Ms. Malintoppi recalled cases such as the Eurotunnel case or Bosnian Genocide case in which the Court’s jurisdiction was restricted to questions regarding the rights and obligations of parties under the treaty at issue.
On the other side, Mr. Hernandez recalled the Bosnian Genocide case as one in which the Court decided to adhere to a principle of judicial economy despite a party to the dispute having ceased to exist. The cases of non-compliance or withdrawal from compulsory jurisdiction have more to do with extra-legal considerations. Mr. Cheng responded to Ms. Popova's reference to the submissions of the Philippines, and asserted that powerful actors do not usually stress this. Even powerful actors generally seek a system which is regulated by rules and principles. Additionally, he referred to the Bosnian Genocide case where the interpretation of jurisdiction was expansive, but the result was correct. The question remains: was the decision correct? And additionally, was the ICJ, with its limited fact-finding tools, the right forum for Bosnian Genocide case in light of its truth-seeking function? In response to Mr. Schwebel, Mr. Cheng asserts that we are at an all-time high in international law, which is why surely this motion must fail.
The judges of today’s debate proceeded to call for a show of hands from the audience, which voted against the motion with a clear majority.
Sophie Schiettekatte (LL.M. Advanced Public International Law, Leiden Law School) and Jasmine Rayée (LL.M. Columbia Law School)