Comment: The compulsory jurisdiction clause under the statute of the International Court of Justice. (1992, 2001, 20 Marks)
The compulsory jurisdiction clause is Article 36(2) of the ICJ Statute, better known as the “optional clause”. It was a 1920 compromise: the jurists drafting the Permanent Court’s Statute wanted general compulsory jurisdiction, the great powers refused, and the Brazilian delegate Raul Fernandes proposed that each state could opt in. The ICJ inherited the formula in 1945, and Article 36(5) carried existing declarations over.
What the clause provides
- A state may declare that it recognises the Court’s jurisdiction as “compulsory ipso facto and without special agreement” towards any other state accepting the same obligation.
- It covers legal disputes on treaty interpretation, any question of international law, the existence of a breach, and reparation.
- Declarations are deposited with the UN Secretary-General and form a network of consent: once two states have declared, either may sue the other, and the respondent cannot refuse to appear.
- Under Article 36(6) the Court decides disputes about its own jurisdiction, the principle of compétence de la compétence.
The paradox is only apparent: acceptance is voluntary, and what is accepted is compulsion.
How it works in practice
- Reciprocity confines jurisdiction to the overlap of two declarations, so a respondent may invoke the applicant’s reservations. In Certain Norwegian Loans (1957) Norway turned France’s own self-judging reservation against it.
- Timing: in Right of Passage (1957) Portugal sued India days after depositing its declaration; states, India included, responded with twelve-month waiting-period reservations.
- Self-judging reservations: the US Connally reservation (1946) excluded domestic matters “as determined by the United States”. Hersch Lauterpacht argued such reservations are invalid and void the whole declaration; the Court has never ruled on the point.
- Withdrawal at will: in Nicaragua (1984) the Court rejected a US attempt to modify its declaration days before the filing; Washington then withdrew. France had left in 1974 after Nuclear Tests.
India and the clause
India’s operative declaration of 27 September 2019, replacing that of 1974, excludes disputes with Commonwealth states, hostilities and self-defence, boundaries and maritime zones, multilateral treaties unless all parties appear, and matters within domestic jurisdiction. The same Commonwealth exclusion in the 1974 declaration defeated Pakistan in the Aerial Incident case (2000). India’s 2019 victory in Jadhav came through the consular protocol, not the clause.
Assessment
- Thin take-up: 75 of 193 states have declarations in force, a smaller share than under the Permanent Court. The UK is the only permanent member, and its declaration is heavily reserved; Russia has never accepted, and China withdrew in 1972 the declaration made in its name.
- Realist reading: following Hans J. Morgenthau, the clause shows states accepting adjudication only where vital interests are not engaged, so serious respondents reserve themselves out.
- Institutionalist reading: it still matters. Declarations create standing commitments that cut transaction costs, small states use them against larger ones, and boundary disputes are routinely settled through them.
- Erosion: since the 1970s treaty drafters prefer compromissory clauses or arbitration, and recent genocide and consular cases, The Gambia v. Myanmar and South Africa v. Israel among them, rest on treaties rather than on Article 36(2).
- Global South view: R. P. Anand, in Compulsory Jurisdiction of the International Court of Justice (1961) and later work, linked new states’ reluctance to a law made without them, and proposed compulsory jurisdiction for routine disputes to build a habit of law.
Conclusion
The clause turned out to be a modest network of reciprocal, heavily reserved consents rather than the seed of a world court. Its failure is political, not legal: universal acceptance without self-judging reservations would change the Court more than any Charter amendment, which is exactly why states have withheld it.