INTRODUCTION

The Cases in which the issue of domestic jurisdiction has arisen before the ICJ have been, so far, Anglo-Iranian Oil Co., Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Norwegian Loans, Rights of Passage over Indian Territory, Interhandel and Aerial Incident. The Court has pronounced itself conclusively on the plea in Interpretation of Peace Treaties, Right of Passage and Interhandel. Of the other cases, Norwegian Loans is interesting for the subject of the present chapter in view of opinions expressed by five dissenting judges. Although they are not devoid of interest we must leave out, for the sake of brevity, Anglo-Iranian Oil Co. and Aerial Incident.

A study of the said jurisprudence indicates with clarity, in our view, that although the Court, the parties, the single judges and commentators continue to refer, explicitly or implicitly, to the traditional concept of domestic jurisdiction, that concept does not seem to have played any effective role in determining the acceptance or the rejection of the objections based on domestic jurisdiction.

By the ‘traditional concept’ I understand that ‘international law criterion’ which was resorted to by the practice and doctrine of international adjudication as soon as it became clear to almost all that one could not find any matters belonging per se – namely, by their nature – to the domestic jurisdiction of states.