The Incorporation of Extrinsic Norms into Treaties as a Legal Technique for Expanding the Ratione Materiae Jurisdiction of the International Court of Justice

Abstract

Incorporation is a normative technique that can be employed in treaties in order to integrate within their scope provisions of international law that are extrinsic to them. In the context of the settlement of international disputes, this normative technique has been invoked on various occasions, particularly in cases before the International Court of Justice, with the aim of expanding the Court’s ratione materiae jurisdiction on the basis of compromissory clauses contained in treaties, so that it may adjudicate disputes not concerning those treaties themselves, but rather extrinsic norms. However, in accordance with the rules on treaty interpretation and the fundamental principle of State consent to submit to the jurisdiction of international courts and tribunals, the Court has consistently rejected this litigation strategy. The Court’s jurisprudence shows that the expansion of its ratione materiae jurisdiction through incorporation is subject to strict conditions, which must be assessed on a case-by-case basis.