4. Contentious function
| Autor | Ricardo Abello-Galvis |
| Páginas | 37-60 |
4. Contentious function
This function seeks to resolve disputes that have arisen between States.
Article 34 of the Statute is clear in stating that “only states may be parties
in cases before the Court”. Accordingly, individuals may not be parties in
cases before the Court. The cases in which the Court has dealt with matters
relating to individuals have involved the issue of diplomatic protection, in
which States have assumed the matter on their own behalf 46.
The Statute is also clear that States that are not a party to the Statute
may be parties in cases before the Court; however, the court has the power
to determine the conditions of their participation. The exception to this
rule is those cases in which the State, though not a member of the Statute,
supports it financially47, by means of which those state members of the Uni-
ted Nations are parties to the Statute. States such as Switzerland, prior to
46 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary
Objections, Judgment, ICJ. Reports 2007, p. 582, para. 39–48. See also: Interhandel Case, Judgment of
March 21st, 1959: ICJ Reports 1959, p. 6, (Switzerland v. United States of America); Elettronica Sicula
S.p.A. (ELSI), Judgment, ICJ Reports, p. 15, (United States of America v. Italy).
47 Statute of the ICJ; article 35 (3).
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joining the United Nations, had to pay their relative share of the costs of any
matters which they decided to place before the ICJ; however, by supporting
the United Nations economically, despite not being a party to the Statute
no additional amount is now charged. Under this concept, a committee of
experts of the Security Council will determine in those cases covered by Ar-
ticle 35.3 a global amount and not a case by case amount. Thus, the general
Assembly determines the amount that ought to be paid by States such as
Switzerland, Liechtenstein, Japan, San Marino and Nauru for the economic
support of the United Nations Organization, and from this a percentage will
be considered as their financial support for the Court48.
There are also some cases in which the Court has directly stated the
amount a State must pay towards the Court’s costs, as happened in the cases
of Albania (Corfu Channel case), Italy (Monetary Gold case) and Germany
(North Sea Continental Shelf case and Fisheries Jurisdiction case)49.
4.1. Jurisdiction
What must first be noted here is the fact that the Court’s jurisdiction is op-
tional. In this sense a State may be a part of the Statute; indeed, all member
states of the United Nations are part of the statute of the ICJ50, even without
having accepted the court’s jurisdiction.
As said by Owen:
“According to article 36 of the Statute, no state need subject itself to
the compulsory jurisdiction of the International Court of Justice, but
any state may voluntarily do so. This alternative leaves the court at
48 Rosenne, Shabtai; The Law and Practice of the International Court 1920 – 2005, Vol. II, Leiden /
Boston, Martinus Nijhoff Publishers, 2006, p. 459.
49 Zimmerman, Andreas; “Article 35”, The Statute of the International Court of Justice, a commen-
tary, Zimmermann, Andreas, Tomuschat, Christian and Oellers-Frahm, Karin (Eds); Oxford, Oxford
University Press, 2006, p. 587.
50 United Nations Charter; article 93.
Introduction to the International Court of Justice –ICJ–
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