An Innovation in the Test for Material Jurisdiction under Certain Compromissory Clauses

Abstract

To decide on the question of material jurisdiction under a compromissory clause, the World Court has at times interpreted treaties provisionally, seeing whether these could reasonably, though not per se correctly, be read so as to apply to acts of which an applicant complains. Other times it has interpreted treaties definitively, to assess whether the respondent actually has the obligations it allegedly violated. The former method may be criticised for not basing jurisdiction in consent; the latter for prejudging the merits. This article shows that the Court has nevertheless made the latter its standard approach. But to avoid prejudging the merits, it will only use definitive interpretations to resolve those preliminary objections, or aspects of an objection, which it perceives as raising issues relevant to its material jurisdiction, as opposed to the merits. The article argues this innovation creates uncertainty for the parties and could be a misuse of the definitive approach.