The Limitations on the Judicial Function of International Courts and Tribunals

Abstract

The International Court of Justice (ICJ) declared in the Northern Cameroons case that ‘[t]here are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore’. On this basis, the ICJ and other international courts and tribunals have indicated circumstances in which they would refuse to exercise their jurisdiction since adjudication would trespass on the limits on their judicial function. Yet the ever-expanding jurisprudence of international courts and tribunals on these limitations is shrouded in mystery. This thesis seeks to clarify the nature, content and scope of the limitations on the judicial function of international courts and tribunals. It conceptualises the limitations on the judicial function as the rules which govern the exercise of legal power by an international court or tribunal in deciding a case. While scholarship has sought to justify non-exercise of jurisdiction due to limitations on the judicial function by reference to inherent powers, the thesis argues that only in very limited circumstances – much more limited than suggested in such scholarship – would reliance on these powers to decline exercising jurisdiction be lawful. Instead, the thesis turns to the three primary sources of international law – treaty, custom and general principles of law – to identify the content and scope of the limitations on the judicial function. It demonstrates that grounds for non-exercise of jurisdiction commonly associated with these limitations – absence of a dispute, abstract or hypothetical nature of a case, non-bindingness of a decision, applicable law and an indispensable third party – are primarily found in the constitutive instruments of certain international courts and tribunals, as well as to a certain extent in custom. This analysis provides greater clarity on the details of these grounds for non-exercise of jurisdiction and greater understanding on the extent of permitted cross-fertilisation. The thesis also considers the legal consequences of trespassing on the limitations on the judicial function, arguing that subject to certain caveats and exceptions, such leads to the nullity of the decision. Finally, it addresses the issue of limitations on the judicial function and advisory proceedings, contending that the relationship between the limitations applicable in contentious cases and any equivalent limitations applicable in advisory proceedings is tenuous. Otherwise, discretion whether to exercise advisory jurisdiction operates as a web of rules and considerations, rather than a series of rigid bars to exercising jurisdiction.