Jurisdictional objections of an exclusively preliminary character: a commentary upon certain conclusions made by the International Court of Justice in Immunities and Criminal Proceedings

This article examines the judgment on preliminary objections delivered by the International Court of Justice in an Immunities and Criminal Proceedings dispute between Equatorial Guinea and France and scrutinizes the preliminary objection that was employed by France to deny the alleged over-extension of its national criminal jurisdiction with respect to offences criminalized thereby in conformity with the 2000 United Nations Convention against Transnational Organized Crime (Palermo Convention). The analysis of the previous case-law of the I.C.J. and the Permanent Court of International Justice allows one to presume the existence of a test helping the Court to reveal whether a particular preliminary objection has an exclusively preliminary character or not. There are four elements of the mentioned test: firstly, the objection must touch upon many aspects of the case; secondly, it must not interfere with the Court’s jurisdiction ratione materiaeto entertain a dispute; thirdly, it should be formulated so that the Court deciding thereupon does not pre-judge a dispute upon the merits; and, fourthly, the joinder of such an objection to the merits should not make the proceedings excessively or unreasonably lengthy. Furthermore, not only did the Court, having held upon the preliminary objection before the merits, not establish a dispute falling within the scope of the Palermo Convention, but neither did it resort to the test notwithstanding the fact that it seems to have been quite reasonable to assume its applicability. Indubitably, the objection related to many aspects of the dispute, including the question of the legality of referring to immunities ex officio from criminal prosecution of another state’s law enforcement authorities in regard to conventional crimes. Moreover, it pre-judged the dispute, de facto constituted a decision on the merits, and dwelt upon the substantive law provided for in the Palermo Convention. Withal, there is no reason to believe that the joinder of the relevant objection to the merits would excessively or unreasonably have protracted the proceedings.

About the author: Ruslan Kantur – a Lawyer, Department for New Challenges and Threats, Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia.

Citation: Kantur R. (2018) Sugubaya predvaritel'nost' yurisdiktsionnykh vozrazheniy: o nekotorykh vyvodakh resheniya Mezhdunarodnogo Suda OON po delu ob immunitetakh i ugolovnom proizvodstve [Jurisdictional objections of an exclusively preliminary character: a commentary upon certain conclusions made by the International Court of Justice in Immunities and Criminal Proceedings]. Mezhdunarodnoe pravosudie, vol.8, no.4, pp.83–96. (In Russian).

References

Amerasinghe Ch.F. (2009) Jurisdiction of Specific International Tribunals, Leiden; Boston, MA: Martinus Nijhoff Publishers.

Antonopoulos C. (2011) Counterclaims before the International Court of Justice, The Hague: T.M.C. Asser Press.

Couvreur Ph. (2016) The International Court of Justice and the Effectiveness of International Law, Leiden; Boston, MA: Brill/Nijhoff.

Lauterpacht H. (2004) International Law. Vol.5: Disputes, War and Neutrality. Parts IX–XIV, Cambridge: Cambridge University Press.

Morgan-Foster J. (2015) V poiskakh vykhoda iz labirinta: slozhnyy put' k yurisdiktsii v dele Khorvatiya protiv Serbii [Looking for a way out of the labyrinth: a difficult path to jurisdiction in Croatia v. Serbia]. Mezhdu­narodnoe pravosudie, vol.5, no.3, pp.3–18. (In Russian).

Rosenne Sh. (2006) The Law and Practice of the International Court, 1920–2005, 4 vols., 4th ed., Leiden; Boston, MA: Martinus Nijhoff Publishers.

Spiermann O. (2005) International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary, Cambridge: Cambridge University Press.