Exercise of Jurisdiction or Admissibility?
Delimitation of Outer Continental Shelf (Part I)
By Professor Bjørn Kunoy
Published on 29 May 2023
This is the first part of a total of two posts that endeavour to pursue a critical analysis of the reasoning underlying courts’ and tribunals conclusions for delimiting overlaps of outer continental shelf entitlement claims in the absence of recommendations of the Commission on the Limits of the Continental Shelf (CLCS) with some focus on the most recent decision on this particular question: the judgment of 28 April 2023 on the merits by the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). This judgment has shed further light on, and added further doubts to, the content of judge-made law concerning the delimitation of overlapping claims to the outer continental shelf lacking recommendations by the CLCS.
It is apparent in these judicial and arbitral tribunal decisions that different judicial principles underlying decisions either to exercise jurisdiction or refrain from this and, as circumstances present themselves, deciding on admissibility, are conflated.
Accordingly, Part I will analyse the legal contours relating to a judicial decision to decline the exercise of jurisdiction and a finding of inadmissibility while Part II will apply these differences to determine how courts and tribunals have made use of these judicial tools to either uphold or, as relevant, reject submissions of disputing parties to delimit overlaps of outer continental shelf claimed entitlements.
Exercise of Jurisdiction and its blurred Distinction from Inadmissibility
The dispute between Mauritius and Maldives raised a broad range of intricate legal questions at different levels. Of interest for this observation is the finding of the Special Chamber to decline the exercise of its jurisdiction to delimit overlaps of claimed entitlements to outer continental shelf areas. In doing so, it appears to have built on and relied upon the case law of ITLOS as well as grounds that relate to a decision not to exercise jurisdiction, which also marks a deviation from the apparent admissibility approach of the International Court of Justice (ICJ) on similar questions. As a result, it adds further elements to the ‘inconsistent jurisprudence’ (p. 1) on this matter, which is capable of creating confusion about contours of courts judicial obligation to exercise the full extent of its jurisdiction. This confusions appears to crystallise because of an amalgam with admissibility, the latter not to be seen only to relate to procedural matters but may also relate to matters that are ‘closely connected with the merits’ as was observed by Judge Fitzmaurice in his separate opinion in the Case Concerning the Northern Cameroons (Cameroon v United Kingdom) (p. 104).
Where international courts and tribunals have jurisdiction, they are obligated to exercise that jurisdiction to ‘to its full extent’ (para 19). This entails an obligation to ‘decide the whole petitum entrusted to it’ (para 50). The obligation to exercise jurisdiction applies where a ‘court possesses jurisdiction and finds no ground of inadmissibility’ (para 21). To decline the exercise of jurisdiction, in principle, may be decided without determining jurisdiction. This appears explicitly in the Nuclear Tests case, where the matter was addressed without establishing jurisdiction and it transpires also in the Case Concerning the Northern Cameroons, where the ICJ declined to exercise jurisdiction ‘due to the proper limits of its judicial function’ without establishing its jurisdiction beforehand (p. 38). The ICJ decided accordingly, ‘[w]hether or not at the moment the Application was filed there was jurisdiction in the Court to adjudicate upon the dispute’ (p. 38). Accordingly, there are exceptions to the obligation to exercise jurisdiction to its full extent, one of which is where the exercise of jurisdiction ‘would be inconsistent with its judicial function’ (p. 37). A decision not to exercise jurisdiction would normally be a renunciation of the very function of a court and it is a point of fact that ‘these cases are highly exceptional’ (para 21). In the joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock in the Nuclear Tests case, they disagreed that the circumstances that presented themselves in that dispute justified a decision to refrain from exercising jurisdiction. In their view, a decision whether or not to uphold the application of the applicants should be made following a finding of (in)admissibility. What follows from these observations in the joint dissenting opinion is an understanding of a difference between on the one hand the reasons underlying a judicial decision to decline the exercise of jurisdiction and a determination of inadmissibility on the other.
Determining whether an application is inadmissible is necessarily an exercise of jurisdiction. A court or tribunal ‘is obliged first to satisfy itself that otherwise it has jurisdiction’ before addressing an inadmissibility plea (p. 54). However, there are some singular cases where this has not been followed including Interhandel, the merits of which were amply questioned in the dissenting opinion of Judge H. Lauterpacht (p. 97). By contrast, there is some support for the proposition that the same does not necessarily apply to a decision to decline the exercise of jurisdiction. In the words of the ICJ in the Case Concerning the Northern Cameroons, such a decision can be made ‘[w]hether or not at the moment the Application was filed there was jurisdiction in the Court to adjudicate upon the dispute’ (p. 38). That determination was also followed in the majority decision in Nuclear Tests case. More recently, a Special Chamber of ITLOS took a different approach in its judgment on merits in Mauritius/Maldives when establishing that it ‘can only defer the consideration of the exercise of its jurisdiction if it has in the first place assured itself that it has jurisdiction’ (para 337).
There has been some doubt whether the Monetary Gold principle did relate to a lack of jurisdiction or a decision not to exercise jurisdiction. The Monetary Gold case where the Court established jurisdiction but refused to ‘exercise this jurisdiction’ (p. 33) is symptomatic of the difficult balance to establish whether a given decision is a declination to exercise jurisdiction or an inadmissibility. The ICJ refers nowhere to admissibility but, as has been observed elsewhere, even the Lauterpachts were divided on the question whether the above is a finding of inadmissibility or a decision to refuse the exercise of jurisdiction (p. 156). Yet, the operative paragraph in Monetary Gold, where the Court holds that its jurisdiction ‘does not, in the absence of the consent of Albania, authorise it to adjudicate’ does provide support for the proposition that the finding is not an inadmissibility, but rather a refusal to exercise jurisdiction. Further, in Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ refused to accept the argument of Australia, relying on the Monetary Gold principle, upon which it decided that it ‘cannot decline to exercise its jurisdiction’ (para 55) [emphasis added]. Accordingly, jurisdiction was established. Finally, in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) second judgment on preliminary objections from 6 April 2023, the ICJ observes a distinction between ‘the existence of the Court’s jurisdiction and, on the other, the exercise of its jurisdiction where that jurisdiction is established’ (para 64) [emphasis added], when addressing the admissibility preliminary objection of Venezuela. Yet, it cannot go unnoticed that in these preliminary objections, Venezuela did challenge the admissibility of the application of Guyana, as, it would appear, it understood the Monetary Gold principle. In any event, whereas Venezuela presented its objection on the grounds of inadmissibility, the ICJ addressed these objections by concluding that it related to a decision whether or not to exercise jurisdiction (para 64) from which it must be concluded that the so-called Monetary Gold principle is a declination to exercise jurisdiction (para 64) rather than an inadmissibility. From the above decisions, it could be argued that a decision to decline the exercise of jurisdiction is, by implication, a finding of inadmissibility. The judicial concepts being used interchangeably.
The question could cynically be raised whether the above-mentioned inconsistencies matter, the response of which is confirmative. This importance will be illustrated in the jurisprudence established in regard to the delimitation of overlaps of outer continental shelf entitlement claims in the absence of CLCS recommendations. It will be demonstrated that there are several inconsistencies and while these do have procedural connotations, they nevertheless do also raise substantive points. This appears where jurisdiction is established, the submissions of the parties to courts and tribunals to delimit the relevant overlaps are considered admissible, but notwithstanding such determination may subsequently nevertheless be rejected in the form of a decision to decline the exercise of jurisdiction for reasons closely related to the finding that the submissions were admissible. Accordingly, while ‘statutory provisions governing the [ICJ’s] constitution and functions impose upon it the primary obligation to adjudicate upon cases brought before it with respect to which it possesses jurisdiction and finds no ground of inadmissibility’ (para 21) and where exceptions only are ‘highly exceptional’ (para 21), there may be still be generic reasons to decline the exercise of jurisdiction beyond the ‘highly exceptional’ cases. By way of analogy, while the ICJ has ruled in two preliminary objection judgments that relate to overlaps of claimed entitlements to the outer continental shelf that it has jurisdiction and that the application of the applicant is admissible, it should not notwithstanding be excluded that in the merits in a dispute opposing Colombia and Nicaragua, the Court could decide to decline the exercise of jurisdiction for reasons closely related to its decision that the application of the applicant was admissible.
Part II will address the above-mentioned matters.