State Consent to International Jurisdiction: Conferral, Modification and Termination
About the project
An international legal system to resolve disputes cannot be imposed ‘top-down’ because all depends on whether States are willing to give an 'external force', such as an international court or tribunal, the power to judge whether they have complied with their obligations. In legal terms, the question is one of 'State consent to international jurisdiction'. After the rise in the creation of new international courts in recent decades, States are now restricting the scope of their consent or even withdrawing it altogether due to allegations that courts are unduly limiting State sovereignty.
State consent to jurisdiction serves as a barometer indicating fluctuations in State support for the international legal system. For example, in October 2017, Burundi withdrew from the International Criminal Court (ICC), raising concerns about the effects on the ongoing ICC investigation into allegations of severe human rights abuses in Burundi. In February 2017, the UK modified the conditions under which it accepts the jurisdiction of the International Court of Justice (ICJ), which seems aimed at evading disputes regarding its compliance with the Treaty on the Non-Proliferation of Nuclear Weapons.
The fundamental tension examined in this project is that, on the one hand, States wish to have ‘manoeuvring space’ by maintaining the possibility to avoid being sued before an international court, while on the other hand, they wish to restrict the behaviour of other States by ensuring that international rules are enforced through a well-functioning court system.
This project fulfils the need for an up-to-date analysis of how international law accommodates this fundamental tension by regulating when, how and with which legal consequences States confer, modify or terminate their consent to the jurisdiction of an international court or tribunal. In turn, this enables the identification of systematic policy patterns and strategies to improve State accountability at the international Level.
The fundamental dichotomy underlying this project is that States wish to maintain the possibility of retreat from the international dispute settlement process while restricting the scope of unpredictable behaviour of other States by enforcing international law through the establishment of international courts. The primary objective is to explore this dichotomy through providing an up-to-date detailed analysis of the international law regulating States' ability to confer, modify or terminate consent to jurisdiction of such courts and tribunals.
Secondary objectives include:
- constructing a database of documents through which States have conferred, modified or withdrawn consent to jurisdiction;
- empirically analysing these documents to examine how international law enables States to tailor their consent;
- identifying systematic policy patterns in States' conferral, modification or termination of consent; assessing how international law accommodates or restricts these patterns.
Methods and outcomes
Empirical analysis of a purpose-built database of consent-related documents will allow this project to fulfil the urgent need for an up-to-date detailed analysis of the international law regulating when, how and with which consequences States can confer, modify or terminate consent to jurisdiction. In turn, this will enable the identification of systematic policy patterns.
- Jurisdiction of the WTO and investment tribunals to decide other public international law norms: balancing State consent and efficiency.
- The Intersection of the Law of Treaties and Human Rights Law: State Obligations Upon Signing a Treaty Granting Jurisdiction to an International Tribunal Adjudicating Human Rights Violations.
The project will run for a four-year period in 2018-2022, and is hosted by PluriCourts - Norwegian Centre of Excellence for the Study of the Legitimacy of the Global Judiciary.
Research Council of Norway, project number 274946.