Her Excellency Judge Xue Hanqin is currently the Vice-President of the International Court of Justice [“the ICJ” or “the Court”]. This book examines the Court's jurisprudence on the question of jurisdiction for the settlement of disputes that are often caught in the triangulation of international relations, political underpinnings, and international law, through an empirical approach with implications for Asia.

The book's contents form part of a Special Course,Footnote ¹ with the theme focusing on the jurisdiction of the ICJ (p. 2) for two reasons: first, jurisdiction is the cornerstone of international judicial practice, and second, there is a dismal record of acceptance of the Court's jurisdiction by Asian states. As Xue notes, only “6 out of 72 [Asian] States … have accepted [the] compulsory jurisdiction of the Court”, though fifteen “have appeared before the Court as a party in a contentious case” (p. 2, n. 3). Further elaborating, “to persuade States to resort to the Court … [t]heir confidence and trust in the judicial settlement have to be supported by their technical competence in, and genuine understanding of, the legal system. Such technical matters as jurisdiction and admissibility, unfortunately, are seldom taught in international law courses in many Asian countries. It is therefore necessary to fill the gap” (p. 2).

Xue's thesis is that “[t]he 70 years of judicial practice of the ICJ have witnessed a fundamental change of international relations. In many ways, the ICJ cannot be considered a successor of the PCIJ [the Permanent Court of International Justice], although its Statute was drafted based on the Statute of the PCIJ and the PCIJ's jurisprudence is carried on till today” (p. 218). The PCIJ was created by the League of Nations in 1922, and was the first tribunal with a general jurisdiction to adjudicate disputes.

Over eight chapters, the corpus juris is replete with analyses of the UN Charter, the ICJ Statute, Rules of Court, Time Limitation of Actions, Practice Directions, Resolutions of the General Assembly and Security Council, PCIJ and ICJ case-law, treaties, statistics-based evidence where available, and references. Throughout the book, the analysis of case-law demonstrates the overarching nature of state consent and agreement of the litigant states to the personal, material, and temporal scope of jurisdiction of the Court at the jurisdictional and merits phases. The book also expounds, compares, and contrasts the subject matter and explains the nuanced interpretations of the Court while acknowledging that “[w]hile maintaining consistency of its jurisprudence, the Court, through judicial interpretation, will inevitably develop the law. Judicial activism may from time to time test the vitality of the principle of consent” (p. 220).

Chapter I introduces the basic rules and principles that govern the jurisdiction of the ICJ based on existing Court practice (p. 220). It commences with a historical review of global practices on third-party dispute settlement, including European Arbitrations in the nineteenth century, world politics, colonial domination, current tensions, and the separation of legal and political matters by the Court and the Security Council that inform and shape the Court (pp. 3–12, 204–5). The erudite classification of the jurisprudential legacy of the Court over the last seventy years into four periods, “The Initial Success—1946 to 1965”, “A Dormant Period—1966 to 1984”, “Towards a Revival—1985 to 1990”, and “New Challenges—1991 to the Present”, show the “de-politicized” process of dispute settlement (p. 29) where the terms used are self-explanatory of the phases of early caution to the current inspiring dynamism of the Court.

Chapter II, on general concepts, addresses jurisdiction, competence, admissibility, justiciability, judicial propriety, and non-appearance before the Court. Considering the interplay of politics and law and evaluating the “justiciability of disputes”, Xue observes that “[i]n the case law of the Court, if a dispute involves political, military or other aspects, or the matter is also being dealt with by the Security Council, that fact alone does not necessarily render the case non-justiciable” (p. 43).Footnote ² The Court has to uphold its judicial propriety (pp. 47–50).Footnote ³ On the issue of non-appearance, it is noted that there were twelve cases in the Court where the unwilling party did not appear, and Xue points out that “[n]otwithstanding the various reasons for their non-appearance, it is clear that when matters of national security, territorial sovereignty and vital interests to natural resources are at stake, the consent of both parties to resort to third-party dispute settlement is vital” (p. 54).

Next, Chapters III and IV cover basic rules and principles. It is noted that state consent permeates mainline proceedings and incidental procedures at the Court (p. 55). Referencing Shabtai Rosenne, the principle of state consent remains the “ultimate foundation of the Court's mainline jurisdiction to decide the merits of any particular case” (p. 80), in addition to “mutuality and reciprocity”, including class actions, joinder of suits, withdrawal of consent, and circumscriptions on denunciations of a State's acceptance of the Court's jurisdiction (p. 78). With the exception of the compromissory clause which is judge-made law, Article 36 of the Statute of the ICJ permits a state to refer a matter to the contentious jurisdiction of the Court in four ways: by (i) a special agreement/ compromis;Footnote ⁴ (ii) a compromissory clause;Footnote ⁵ (iii) a declaration of acceptance under Article 36(2) Statute of the ICJ (the so-called Optional Clause) and under other regional treaties; and (iv) consent based on forum prorogatum (unilateral application). The examination of consent based on forum prorogatum is the best exposition of the law on the subject matter so far.Footnote ⁶

Xue explains that the interpretation of a judgment cannot go beyond the limits of that judgment. In addition to state consent, three other principles are considered. First, the Principle of Finality or res judicata comprising the parties (persone), the object (petitum), and the cause (causa petendi). Second, Article 59 of the Statute of the ICJ comprising the res inter alios acta rule and the Monetary Gold rule, is very well explained, and serves as the exception to Article 59 for third states. Further, Article 59 has a three-fold meaning and recognizes the right of a sovereign state to interpret, revise, and modify the terms of a judgment based upon mutual agreement. Xue clarifies that as a judgment of the Court contains reasons and the decision, it can sometimes create difficulties in the mind of the reader as to whether the Court is answering the legal issue at hand and whether the paragraphs on reasons and the operative part of the dispositif (judgment) are interlinked or separate, and also whether either of them are to be considered res judicata. The several parameters of the res judicata principle are explicated through the Temple of Preah Vihear caseFootnote ⁷ and Nicaragua/Colombia Delimitation of the Continental Shelf case (pp. 85–9).Footnote ⁸ Res judicata ensures judicial justice and judicial economy, a policy that every legal system pursues (p. 83), but the latter point on judicial economy is not elaborated upon further. Lastly, the non ultra petita rule (judgment confined to submissions of parties) is explained through the lens of “inseparable reasons” and “essential reasons” in the Joint Declarations by Judges Owada, Bennouna, and Gaja in the Temple case (Interpretation),Footnote ⁹ where the implication of assimilating the two terms, Xue argued, is to lower the criterion for determining res judicata (pp. 102–3).

The preconditions (preliminary matters) for the exercise of jurisdiction for an examination of matters in limine litis (Chapter V) concern the issue of locus standi of the states that can bring a claim and the bifurcation of proceedings to raise objections to jurisdiction and admissibility of applications. The oft-repeated jargon here is that “the matter is one of substance, not of form”.Footnote ¹⁰ The discussion on the “subject matter of a dispute” (pp. 119–22) deserves special mention as it goes to the root of adjudication. Finally, Chapter V underscores the importance of negotiations in dispute settlement (pp. 55–6). This is an important remark as the Court has not refused jurisdiction due to unsatisfactory negotiations or laid down a standard for the exhaustion of alternative dispute resolution mechanisms to be observed by litigant states. Xue states that, regardless of a solution, the Court may still seize jurisdiction as it is recognized that the Court has a lower threshold for its jurisprudence and does not support such a formalistic approach (p. 132) in accepting compliance with the preconditions, as negotiations need not result in a solution between the states in question.

Chapter VI on jurisdiction ratione personae evaluates three areas: (i) the competence of states whether as (a) Members or non-Members of the UN (Parties and non-Parties to the Statute of the ICJ) and (b) in cases of state succession (pp. 145–7); (ii) the ability of international organizations to access the Court in contentious cases and advisory opinions at the PCIJ and ICJ (pp. 158–67); and (iii) the priority to be accorded to it before other jurisdictional issues (pp. 147–53). To the Court's analyses of the Application of the Convention cases involving the Former Republic of Yugoslavia/Serbia (p. 145, n. 24, and pp. 152–3, nn. 46–7) and state responsibility under the Genocide Convention and the Legality on Use of Force case (p. 145, n. 24, and pp. 152–3, nn 46–7), Xue observes: “[t]he Court's jurisprudence on the question of access in these cases with regard to Serbia's status cannot be deemed consistent and coherent” (p. 152).

Jurisdiction ratione materiae (subject matter) and ratione temporis (time limitations) must coincide. Chapter VII examines Article 36(1) Statute of the ICJ through the case concerning the Obligation to Prosecute or Extradite.Footnote ¹¹ The term “Title of Jurisdiction” has occasionally appeared in the Court's judgments, which may be interpreted broadly or narrowly, but either way Xue has commented that it is the “source of power by which the Court has the right to adjudicate” (p. 183).Footnote ¹² Alternatively, instead of litigating through special agreements, States Parties can consider bilateral negotiations and settle the matter between themselves.Footnote ¹³ Where there are multiple titles of jurisdiction, the Court will examine each title under the relevant instrument.Footnote ¹⁴ In cases of human rights violations (jus cogens) there is an erga omnes obligation to prevent and punish such crimes.Footnote ¹⁵ Under jurisdiction ratione temporis, the title of jurisdiction must be valid between the parties at the time the case is instituted in the Court (p. 197).Footnote ¹⁶ Chapter VIII focuses on objections to jurisdiction and admissibility, and Chapter IX concludes. The conclusion reflects on the historical reasons for the limited role of the PCIJ and the progress of the ICJ in promoting dispute settlement through contentious cases and advisory opinions. The overarching concept of state consent to accept the Court's jurisdiction is discretionary, and jurisdiction acts as a shield against matters that do not fall within the judicial purview and, where there are multiple parties, their consent to jurisdiction must coincide in scope in each case (p. 219). As there is a proliferation of international courts and tribunals today, it is time for the Court to redefine its role as the principal judicial organ of the UN (p. 220). The prismatic effect of the lectures makes this a very valuable book and a compulsory read. An excellent bibliography is provided as well. Thank you, Judge.