Apropos of the ICJ’s (illusory) compulsory jurisdiction

The International Court of Justice (ICJ) -along with the United Nations- has just commemorated its 75th anniversary. Still, only 74 states have accepted the Court’s compulsory jurisdiction. Most of the declarations submitted to that effect are replete with reservations. And why should they not be? The Court’s jurisdiction on this basis was designed to be purely consensual. On many occasions, perhaps most vividly in its 1998 judgement on jurisdiction in the Fisheries Jurisdiction case, the Court itself confirmed that states are at liberty to append any type of reservations to their optional clause declarations and to thereby determine the limits placed upon the acceptance of the jurisdiction of the Court. The purpose of encouraging states to submit to the Court’s compulsory jurisdiction is to strengthen the universality of the Court’s jurisdiction. If the Court were not to allow reservations, states would be unlikely to subscribe to its compulsory jurisdiction for fear of jeopardizing their own sensitive and sovereign interests. In this way, the Court, by allowing reservations, actually invites states to accept its compulsory jurisdiction by enabling them to do so on their own terms. This also means that the Court then has to bear the corresponding opportunity cost, which is having jurisdiction that may not be genuinely and completely “compulsory”.

Even having come so far, many questions still remain unanswered, two of which this post will focus on:

  • Whether states can, by their reservations, take away the Court’s power to determine questions of its very own jurisdiction?
  • If the answer to this is in the affirmative, it is only logical to ask: are such reservations valid in law?

States reservations

The Court has had the opportunity to deal with such automatic and self-judging reservations (i.e. those by which a state reserves for itself the right to determine what amounts to an issue of domestic (as opposed to international) law) in two of its cases. In its 1957 judgement on preliminary objections in the Case of Certain Norwegian Loans between France and Norway, the Court, conspicuously, confirmed the unilateral power of states to decide the very question of Court’s own jurisdiction. Norway invoked France’s automatic reservation by way of reciprocity. It claimed that “it understood the dispute concerning the Norwegian loans to be essentially within its domestic jurisdiction”. The Court felt it unnecessary to go into the question of the validity of France’s reservation as Norway had not contested it, and ultimately, without any detailed explanation, upheld Norway’s objection to its jurisdiction.

Next, in 1959, the Court could and should, in its judgement on preliminary objections in the Interhandel Case between Switzerland and the US, have ruled on the validity of the US’s automatic reservation; however, it simply chose to ignore that tangent of the dispute. The US invoked its automatic reservation, claiming that it determined the dispute to be essentially within its own jurisdiction, and that “this determination is not subject to review or approval by any Court”. The Court did not examine this claim and determined that the dispute was inadmissible on the grounds of exhaustion of local remedies.

The reason behind the Court’s reticence is unknown. One thing is clear though; the Court has answered the first of the questions set out above in the affirmative. States can, unliterally, through their reservations, take away the very power of the Court to decide aspects of its own jurisdiction. It is due of this reason perhaps that currently, states like Malawi, Mexico, Liberia, Philippines and Sudan have such reservations appended to their optional clause declarations. However, we cannot conclude that the Court has also answered the second question—whether such reservations are valid in law—in the affirmative. It has, for reasons unknown, chosen to ignore this question. The lex lata—at least as interpreted by the Court—seems to be inclined in favour of such reservations, but for the reasons stated below, the lex ferenda clearly demands the contrary.

If it so happens that a case is brought against any one of the above-listed states that still have automatic reservations in place, and those states invoke the said reservation, the Court, if the question of the validity of the reservation is raised, would be required to chart into unknown territory. It would have to tread carefully for it will not only be then compelled to examine whether such reservations are allowed and in conformity with its Statute, but also predict the effects of its judgement on the system of its compulsory jurisdiction.

At the outset, quoting some lines from Judge Lauterpacht’s bold dissent in the Norwegian Loans and Interhandel cases, the invocation of such a reservation would be in violation of Article 36(6) of the Statute of the Court. Article 36(6) confers upon the Court the right and duty to determine its own jurisdiction. Moreover, Article 36(6) does not lay down a new principle but codifies the inherent power of the Court to decide on the extent of its own jurisdiction (Shelton, pp. 546-548). An automatic reservation interferes with and effectively impairs this principle of la compétence de la compétence (e.g. advisory opinion in the Interpretation of Greco-Turkish Agreement Case, p. 20; judgement on preliminary objections in the Nottebohm Case, pp. 119-120). Next, it can be said in concreto that such a reservation does not entail an actual legal obligation. If it is for the state to decide the Court’s jurisdiction even after having agreed to its compulsory jurisdiction, the optional clause declaration submitted to that effect renders the instrument of acceptance meaningless.

Apart from the reasons set out above, the infamous domestic legal principle of nemo judex in causa sua also becomes applicable. Nobody can be a judge in his/her own case, as he/she cannot, simultaneously, be a party to a case and the judge for it. This is one of the “general principles of law recognized by civilized nations” the Court may apply under Article 38(1)(c) of its Statute. Due to a lack of corresponding international law on this principle, the Court can—as it has on a number of occasions in its jurisprudence (e.g. judgement on second phase in the South-West Africa Cases, p. 47; judgement on application for permission to intervene in Territorial and Maritime Dispute Case, p. 27)—borrow it from domestic legal systems.

It is for these explicable reasons that the Court should, if an opportunity presents itself, declare such reservations invalid in law. However, it is very much possible for the Court to decline to entertain this question again. The next step, presuming that the Court answers the first of this post’s guiding questions in the affirmative, would be to examine the effect of such reservations on 1) the optional clause declarations to which they are appended to and 2) on the overall system of compulsory jurisdiction.

Different approaches to reservations

Reservations are considered an integral part of a state’s optional clause declaration. They are reflective of a state’s true intention towards the Court’s compulsory jurisdiction, as, without the reservation, the state in the first place would be unlikely to have agreed to the Court’s jurisdiction. By this line of reasoning, they seem to be non-severable from the rest of the declaration, which would mean that if the Court declares an automatic reservation as invalid in law, it will make the whole declaration null and void. Judge Lauterpacht in his dissenting opinions (in Norwegian Loans, p. 58 and Interhandel Cases, p. 101) had asserted that reservations are non-severable as they are not just a part, but an essential component of a state’s acceptance of the Court’s compulsory jurisdiction.

Another approach is to treat reservations as severable from the declaration, which will mean that on account of a reservation being declared as invalid in law, the declaration nonetheless survives. The then President Klaestad in his dissent (p. 78) appended to the Interhandel case opined that a reservation is indeed severable from the rest of the declaration and that the declaration will survive the reservation’s invalidity.

Conclusion

All in all, the law is not settled on this proposition. The Court will have to make a conclusive determination as and when the matter requires resolution. It also will have to be wary of the effects of its judgement. If it were to declare an automatic reservation as invalid in law, what would happen to similar reservations already in place? How would states which have accepted the Court’s compulsory jurisdiction react to it? These are just a few of the many questions that the Court will be required to answer if and when an automatic reservation’s validity is challenged. Until then, it is fair to infer that the jurisdiction of the Court will be compulsory only to the extent demarcated by states themselves, for those that have such reservations.

 

Arjun Sahni is a fourth year undergraduate at Symbiosis Law School, NOIDA, interested in international and human rights related laws.

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