Thursday, August 7, 2014
Earlier today, Argentina filed an Application Instituting Proceedings against the United States at the International Court of Justice (ICJ) regarding a dispute concerning judicial decisions of the United States relating to the restructuring of Argentine sovereign debt. Unfortunately for Argentina, there is no treaty or other agreement giving the ICJ jurisdiction over the dispute. Hence, Argentina must rely on Article 38(5) of the ICJ's statute which states that Argentina's application must be transmitted to the United States and the United States will be requested to give its consent to jurisdiciton. The ICJ is not to place the Application on its General List or take any other actions with respect to the dispute unless and until the United States gives its consent to jurisdiction.
Although unlikely, it is not unheard of for states to consent to jurisdiction on this special basis, also known as prorogated jurisdiction. For example, France consented to jurisdiction in a suit brought by the Republic of Congo in 2003 relating to France's alleged breach of Congo's sovereignty through the French investigation of Congolese officials and issuance of warrants.