In this escalation of judicial activity, the French executive found itself stuck between a rock and a hard place.2. cit., p. 24: “And there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it.
In particular, it was the first time that the ICJ had to decide on the merits of a dispute brought before it by an application based on Article 38, paragraph 5, of the Rules of Court.II. 10-19. 123, p. 40.40 Judgement, paras. 57-58.46 In his individual opinion, Judge Tomka expressed himself in the following severe tones: “On peut même se demander s’il était vraiment nécessaire de saisir l’organe judiciaire principal des Nations Unies.” Seperate opinion of Judge Tomka, para. The flipside of this absence of restriction concerning the form of expression of the consent is that the consent must be absolutely unequivocal.21- Finally, once the consent of the Parties is given to the Court, it cannot be withdrawn unilaterally. It is clear—and the Judgement of 4 June confirmed this—that Djibouti’s legal arguments were rather blurred to say the least. The jurisdiction of the Court in contentious proceedings is based on the consent of the States to which it is open 1.
15 It would be more accurate to talk about a ‘translation’ than a simple transfer. However, the Judgement does raise a certain number of interesting legal questions. There is only one shadow which is cast over it: the Borrel affair.”1 On 9 January 2006, this ‘shadow’ over the Djibouti-France relationship became all the more gloomy with Djibouti’s initiation of proceedings before the International Court of Justice (ICJ) in The Hague. Of all the forms of consent, forum prorogatum is by far the most flexible.13In the Genocide case before the ICJ, Judge ad hoc Lauterpacht gave this particularly lucid definition: “[Forum prorogatum] is the possibility that if State A commences proceedings against State B on a non-existent or defective jurisdictional basis, State B can remedy the situation by conduct amounting to an acceptance of the jurisdiction of the Court.”14It was the ICJ’s predecessor, the Permanent Court of International Justice (PCIJ), that transferred forum prorogatum into international law.15 In 1934, on the occasion of the revision of Article 35 of the PCIJ’s Rules of Court—which relates to elements that an application instituting proceedings shall include—some judges voiced the opinion that forum prorogatum was in the interests of international justice as it allowed greater flexibility with regard to the necessary conditions in order for States to bring disputes before the Court.16It did not take long for the ICJ to avail itself of this useful tool and it quickly established a similar precedent to that set by its predecessor. previous paragraph. Some criticismThe Gordian Knot of establishing forum prorogatum lies in the way the Court can determine that the respondent State gave consent to its jurisdiction, especially when the Court relies on tacit consent. In this case, the Court ruled that the criteria of “continuity” and “connexity” were not relevant: only the letter of 25 July 2006 was significant. 152, p. 48.42 Ibid., para. Reports 1951, p. 78, available here.This notion had been expressed by the PCIJ in the clearest way in Rights of Minorities in Upper Silesia (Minority Schools), op. 65-95, pp. Available here (in French only).7 Judgement, paras. Since this amendment, the Court’s role has been limited to simply transmitting the Application to the concerned State. This chapter examines the doctrine forum prorogatum and the evidence of provisional measures in the International Court of Justice (ICJ).
1-26 and Bedjaoui, op. 47-48.41 “Some brief further explanation was called for”, Ibid., para. For the PCIJ jurisprudence on this point, see Mavrommatis Jerusalem Concessions, Series A, N°.5, Judgement of 26 March 1925, p. 27, and Rights of Minorities in Upper Silesia (Minority Schools), Series A, N°.15, Judgement n°12, 26 April 1928, p. 23.20 International Court of Justice, Haya de la Torre (Colombia v. Peru), Judgement of 13 June 1951: I.C.J. In international law however, the deferred consent by a State to the jurisdiction of the court has stricto sensu the effect to create and to establish the jurisdiction of the court.
Il n’existe qu’une seule ombre à ce tableau : l’affaire Borrel”).2 In its Judgement of 4 June 2008, the ICJ presents a summary of all the legal proceedings initiated in both France and Djibouti in relation to the death of Bernard Borrel. 37-38, p.18. Henceforth, this consent subsequently included eventual developments which form part of the “dispute forming the subject of the Application”.37 In any case, if forum prorogatum is a flexible way of seizing the International Court of Justice, this flexibility does not have unanimous support when it comes to determining the extent of the expressed consent.2. 5, pp. [])). Thus, before looking at the ICJ’s Judgement itself, this commentary first focuses on the background of the case, and more specifically on the judicial question which is at the centre of the conflict: the Borrel case.2I. Please enable Cookies and reload the page. The doctrine of forum prorogatum affords an informal way for a state to express consent to the Court's jurisdiction.
For Judge Skotnikov, it is evident that France accepted the jurisdiction of the Court over an ongoing dispute, and was aware of this when it consented to the Court’s jurisdiction.
It happened as early as 1948 with the Corfu Channel case between the United Kingdom and Albania.17 Between 1948 and 1952, a series of Judgements were delivered which confirmed the main characteristics of the use of forum prorogatum before the ICJ:18- First, the consent of the Parties does not have to be expressed in any particular form.
In 2007, during the presidential campaign in France, the Ministry of Foreign Affairs and the Ministry of Justice are searched by the judges, but they are denied access to the Palais de l’Élysée.8 Judgement, para. One can see here the consequence of ill-considered recourse to the ICJ, which was only allowed by forum prorogatum.46 Nevertheless, would France have given its consent to the jurisdiction of the Court if Djibouti’s Application was based on more robust legal arguments? Available here (in French only).9 Application, para. 6 See International Court of Justice, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Memorial of the Republic of Djibouti, 15 March 2007, (hereafter, Memorial), para. 26-33.
The chambre correctionnelle of the tribunal de grande instance de Versailles gave a much heavier sentence than requested by the Public Prosecutor (a suspended sentence of one year’s imprisonment): Djama Souleiman received a custodial sentence of 18 months of imprisonment and Hassan Saïd a custodial sentence of one year.
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