78 Preliminary objections

Another very frequent incidental proceedings is the fact that the respondent state raises objection to the jurisdiction of the court or to the admissibility of the application. And for instance, the respondent state may say that the dispute does not fall within the purview of one of the optional clauses or that the prior conditions set out in the compromissory clause are not met. Or, and as we shall see in a reading following this video, the respondent may also object to the jurisdiction of the court because it considers that if the court decides on the claim submitted to it, it will necessarily decide also on the rights and obligations of a third state which is not present in the proceedings and has not accepted the court's jurisdiction. Or, the respondent, in matters of admissibility, the respondent may argue that the rules on the nationality of claims or the exhaustion of local remedies are not met. Because those objections should be raised as early as possible and not later than three months after the filing of the claimant's memorial, those objections are called preliminary objections and they are regulated under article 79 of the rules. It is a fundamental procedural right of the respondent state to raise such objections because no state can be compelled to present its defence on the merits before a court it considers to be lacking jurisdiction or in relation to a claim considered inadmissible. Raising preliminary objections has the effect of suspending the procedure on the merits as long as the court takes a decision on its jurisdiction or on the admissibility of the case. To use a verb I used when speaking about arbitration, the procedure bifurcates when preliminary objections are raised. The procedure on the merits is suspended, the respondent state does not have to answer the claims on the merits in account of memorial, but it will present and does not need to present its evidence to counter those claims. Instead of that, the respondent state writes a memorial objecting to the court's jurisdiction and eventually also to the admissibility of the claims to which the claimant will respond in a counter memorial on jurisdiction and eventually a second round of written pleadings on the issue of jurisdiction or admissibility will be submitted before public hearings take place in the Hague. And because under article 36 paragraph 6 of the statute the court has the compétence de la compétence, it will have to take a decision on any dispute about its jurisdiction or the admissibility of the claims. And this decision takes the form of a judgment binding on the parties and on the court itself as a matter of Actually the court has three options when considering the preliminary objections. Either it rejects them and the case proceeds to the merit or it upholds one or all of them and the case ends there. Or it decides to postpone its decision on an objection because it considers that it needs to be more informed in order to take a decision and in that case the court joins the objection to the merits and the objection will be examined first when the merits phase open. It is important to note that about a big quarter or one third of ICJ cases stop at the preliminary objection stage because the court considers that it lacks jurisdiction. It is also important to stress that it is not because the respondent has not raised preliminary objections that it is barred from objecting to the jurisdiction of the court or the admissibility of the claims at a later stage of the proceedings and notably when filing its counter-memorial on the merits. But if the respondent does not raise objections at the preliminary stage it will have to present its views on the merits at the same time then. The court must indeed be certain of its jurisdiction at any stage of the proceedings and whether at the preliminary stage or later in the proceedings assessing the court's jurisdiction requires to look at the following issues in a logical order. First the court needs to determine if a dispute exists between the parties. If there is a dispute then the court will have to determine the very subject matter of the dispute knowing that such determination is made by the court itself objectively and irrespective of the party's contentions. And once the court has determined the subject matter of the dispute it will have to assess if both parties have consented to its jurisdiction in relation to the subject matter of the dispute. And it is at this stage of the analysis that the court will have to interpret the special agreement, the compromissory clauses or the optional clauses relied upon by the claimant. If the court concludes that there is no dispute between the parties or that the subject matter of the dispute does not fall within the purview of the instrument under which its jurisdiction is alleged by the claimant or that the conditions of consent are not met in any of those situations, the court will have to conclude that it has no jurisdiction to entertain the claims.