A Proposal for Formalizing the 'No Case Exists' Objections Procedure at the International Court of Justice

Abstract

This paper describes and analyses the “no case exists” objections that have been made and dealt with in various ways before the International Court of Justice. The argument underlying these objections usually runs as follows: the Court clearly or manifestly lacks jurisdiction or there is clearly no dispute. This would lead to the result that no case exists, because, for a case to exist, there must be, at a minimum, some dispute as to the Court's jurisdiction so as to trigger the Court's function under Article 36(6) of the Statute. Neither the Statute nor the Rules of Court contains a specific procedure for addressing such objections and the various existing procedures do not allow the States making such objections to achieve their goals. The parties and the Court have had to struggle with these objections in various irregular ways. This paper proposes that the Court formalize the procedure to deal with these objections by amending the Rules of Court to provide for a “no case exists” objections procedure. The essay concludes by presenting a proposed rule as an illustration.