ICJ Jurisdiction in incidental proceedings

The article examines the establishment of the Court’s jurisdiction in incidental proceedings. While consent must be given by the parties, and ascertained by the Court, in order to settle the dispute on the merits, the Court’s power to decide incidental claims is not dependent on such consent and it is based, directly or indirectly, on the Statute. The incidental ascertainment necessarily regards principal jurisdiction. Accordingly, the author distinguishes two categories of incidental proceedings. The former includes proceedings that are aimed at expanding the principal dispute and that, as a consequence, need a preliminary establishment of jurisdiction. The latter includes proceedings that have no impact on the principal dispute and that, therefore, should not require such a preliminary establishment. A number of related procedural issues are analysed in a manner consistent with this main hypothesis. Conclusions discuss more generally the reasons that justify a variable but unquestioned commitment of the Court to the principle of consent.