Page 439
Consent to jurisdiction being implied from some action in connection with proceedings taken
by a state that has not accepted the jurisdiction expressly, known as forum prorogatum.
34
When a treaty provides for the establishment of an arbitral tribunal, it is vital to provide for a third
party to make the appointment of a national or neutral arbitrator, should that appointment not have
been made within the time specified. There should, however, be no need to include such a provision
if the reference to arbitration is ‘friendly’. Giving the President of the ICJ or the Secretary-General
of the PCA the power to make such appointments normally has a good effect: they have seldom had
to exercise the power.
35
What is a legal dispute?
In addition to the states in dispute having consented to its jurisdiction, for an international tribunal to
have jurisdiction, there must be a dispute between the parties and the dispute must be legal. We are
not concerned with a dispute about a matter regulated by domestic law, such as over a lease
governed by the land law of one of them, unless there is also an international law aspect.
36
What constitutes a dispute? In Lockerbie, the UK and US respondents argued there was no
dispute. To no one’s surprise, the ICJ decided that there was a dispute as to whether the Montreal
Convention 1971 (on aircraft sabotage and to which the three states were and remain parties) applied
in the circumstances of the case.
37
In so deciding, the ICJ referred to the statement of its
predecessor, the Permanent Court of International Justice (PCIJ), in Mavrommatis: ‘A dispute is a
disagreement over a point of law or fact, a conflict of legal views or interests between two
persons.’
38
The
34. See Brownlie, pp. 689–90; Collier and Lowe, Settlement of Disputes in International Law, Oxford,
1999, p. 136; Schreuer, The ICSID Convention: A Commentary, Cambridge, 2001, pp. 228–34; Merrills,
International Dispute Settlement, 3rd edn, Cambridge, 1998, pp. 123–4.
35. See US v. France (Air Services) (1963) 38 ILR 182.
36. If, for example, the lease was entered into pursuant to a treaty between the two states and one claims
that the other is in breach of the treaty. See also p. 124, n. 15 above.
37. Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (Preliminary Objections), ICJ Reports
(1998), p. 9, para. 53(3); ILM (1998) 587; 117 ILR 1. There was a parallel case against the United States.
Since the issues raised by both cases were the same, the Court dealt with them in parallel, although they
were never joined. Both cases were withdrawn by consent in September 2003.