BELIZE CITY, Belize, Mon. Dec. 3, 2018– In our first story emanating from a visit by Belizean journalists to The Hague (from November 26 to 30) we noted that “no state can be sued if it does not consent to ICJ arbitration.” By consent it is meant that a state concedes that the ICJ has jurisdiction to decide a case.
As explained by an official with more than 10 years of experience at the ICJ, consent is of utmost importance, especially because, theoretically speaking, compliance could become an issue if a state is taken to the Court against its will. Consent can be granted in three ways, but there was a fourth that developed over time in the practice of the Court. It’s called forum prorogatum, Latin for prorogated jurisdiction, and refers to State B indicating consent — after State A takes the case to the ICJ — in an implied or informal way by its conduct. Put in the words of the ICJ official, “you go along” with the proceedings and act as if consent has been granted. The principle applied is embodied in the ICJ’s Rules of Court Article 38, paragraph 5, which states “When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.”
An example of such a case at the ICJ is Congo versus France (2002). The Republic of the Congo alleged that France violated the principle ”that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations . . . exercise its authority on the territory of another State,” and the principle of “criminal immunity of a foreign Head of State — an international customary rule recognized by the jurisprudence of the Court.” France had attempted to prosecute a Congolese interior minister for crimes against humanity and torture allegedly committed in the Congo and sought to get the then Congolese president, Denis Sassou Nguesso as a witness. In its application Congo used Article 38(5) to establish the Court’s jurisdiction “on the consent of the French Republic, which will certainly be given.” And it was.
Upon learning of such a mechanism, some may ask whether it can be used by Guatemala – with Belize’s subsequent consent to ICJ jurisdiction — if Belizeans vote “NO” in the April 2019 referendum on taking the Belize-Guatemala territorial dispute to the ICJ. However, a backstop would be Section 2(2)(b) of Belize’s Referendum Act, which states that “any proposed settlement with Guatemala for resolving the Belize/Guatemala dispute” must be put to referendum.