3. Contentious Jurisdiction
　　(1). Special agreements (Compromis)
　　Article 36, paragraph 1, of the Statute[4] provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a special agreement (Compromis) and concluded by the parties especially for this purpose.　This method was used in The Corfu Channel Case (see below), and in a number of others. In some cases, [5] one or more of the involved parties refuse to accept the jurisdiction of the court, thus resulting in the court being ineffective.
　　(2). Cases provided for in treaties and conventions
　　Article 36, paragraph 1, of the Statute provides also that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force.
　　To review the Lockerbie cases will be helpful for us to understand this[6]: The Lockerbie cases were brought by Libya against the United Kingdom (UK) and the United States (US) under the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The UK and the US had claimed that there was no dispute between the parties concerning the interpretation or application of the Montreal Convention as demanded by its Article 14, but, if at all, only between the applicant and the Security Council on the effects of the Security Council resolutions (SC Resolutions). In the opinion of the Court, however, several disputes[7] existed between the parties concerning the Montreal Convention: first, on the Convention’s applicability to the present case (a jurisdiction which the Court calls ‘general’); secondly, on the alleged right of Libya itself to prosecute its nationals (Article 7); thirdly, on the alleged lack of assistance by the respondents to the Libyan prosecution (Article 11). So with 13 votes to three, the Court upheld its jurisdiction. By maintaining ICJ jurisdiction, the judgment conceals rather than unfolds the disagreements within the Court on the impact of the SC resolutions. According to a broad interpretation of the judgment, the relationship between the Montreal Convention and the subsequent SC resolutions is a matter within the jurisdiction of the Court. Another, narrower reading is provided by Judges Fleischhauer and Guillaume in their joint declaration: it states that the ICJ jurisdiction only extends to interpreting and applying the Montreal Convention and not to the SC resolutions. The latter view seems more in line with the treaty-based jurisdiction of the Court in the present case; it would, however, considerably limit a judicial review of SC resolutions by the Court. It has become apparent that there is no agreement within the Court as to whether its jurisdiction is limited to a pronouncement on the rights and duties of the parties pursuant to the Montreal Convention itself, or whether it also enables the Court to decide on the relationship between the Convention and subsequent SC resolutions. By a narrow margin, the Court seems to favor the second option.

第 [1] [2] [3] [4] [5] [6] 页 共[7]页