Anthony Aust. Handbook of International Law
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Court has jurisdiction in a particular case depends on various factors. In practice, most disputes have
been referred to the Court under compromissory clauses or by compromis.
Meaning of reciprocity
For the Court to have jurisdiction on the basis of two declarations under Article 36(2), a declaration
by one state requires that the other accept ‘the same obligation’. Thus the essence of the Court’s
jurisdiction on this basis is reciprocity: a state can rely not only on its own reservations (see below))
but also on any made by the other state. So, if two states have a dispute that arose in, say, 1990, and
the declaration of one of them excludes disputes arising before 1995, the Court will not have
jurisdiction.
97
In essence, therefore, jurisdiction amounts to the lowest common denominator of the
two reservations.
Reservations
Although Article 36 does not provide for reservations to be attached to declarations, this is implicit
in the unilateral nature of the declarations. In fact, most declarations have been made subject to
reservations.
98
But, if the Court does not have jurisdiction because of a reservation, it may still have
jurisdiction on another basis.
99
A limitation on the Court’s jurisdiction under a compromissory
clause, but not in a declaration, does not affect the declaration.
100
The United Kingdom is the only permanent member of the Security Council to maintain a
declaration. France and the United States withdrew theirs in 1974 and 1985, respectively. China, as
represented by the PRC Government, did not recognise the declaration made previously by the
Republic of China (Taiwan). The USSR/Russia has never made a declaration.
The previous UK declaration of 1 January 1969 illustrates some of the reservations that can be
made. The declaration accepted, as compulsory ipso facto and without special agreement, on
condition of reciprocity, until such time as notice might be given to terminate the acceptance, the
jurisdiction of the Court
97. Interhandel, ICJ Reports (1959), p. 6, at p. 23; 27 ILR 475.
98. For the text of the current declarations, see UN Multilateral Treaties, C. I.4, at http://untreaty.un.org.
99. Nicaragua v. US, ICJ Reports (1984), p. 392, paras. 77–83; 76 ILR 104; and Arbitral Award (Guinea-
Bissau v. Senegal), ICJ Reports (1991), p. 53, paras. 22–9; 92 ILR 1.
100. Cameroon v. Nigeria (Preliminary Objections), ICJ Reports (1998), p. 275, paras. 61–73.
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over all disputes arising after the 24th of October 1945, with regard to situations or facts subsequent
to the same date, other than:
any dispute which the United Kingdom
has agreed with the other party or parties thereto to settle by some other method of peaceful
settlement; or
1.
has already submitted to arbitration by agreement with any state, which had not at the time of
submission accepted the compulsory jurisdiction of the International Court of Justice.
2.
1.
disputes with the government of any other country that is a Member of the Commonwealth with
regard to situations or facts existing before the 1st of January 1969.
2.
disputes in respect of which any other party to the dispute has accepted the compulsory jurisdiction
of the International Court of Justice only in relation to or for the purpose of the dispute; or where
the acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute
was deposited or ratified less than twelve months prior to the filing of the application bringing the
dispute before the Court. (Emphasis added)
3.
The declaration also reserved the right at any time either to add to, amend or withdraw any of the
reservations, or any that might later be added. On 5 July 2004, the UK declaration was replaced by a
new one accepting the jurisdiction of the Court as before, but only in respect of
disputes arising after 1 January 1974, with regard to situations or facts subsequent to the same date, other
than:
any dispute which the United Kingdom has agreed with the other party or parties thereto to settle by
some other method of peaceful settlement;
1.
any dispute with the government of any other country that is or has been a Member of the
Commonwealth;
2.
[as before]. (Emphasis added.)3.
The new declaration broadens the scope of the Commonwealth exclusion to cover also former
Commonwealth countries.
101
The immediate reason was that Mauritius had said that it was
considering taking to the Court its dispute with the United Kingdom over the Chagos
Archipelago.
102
But,
101. The 1974 Declaration by India is to the same effect. In Aerial Incident (Pakistan v. India), ICJ
Reports (2000), p. 12, paras. 30–46, the Court held it was effective to prevent it from having jurisdiction
on the basis of Article 36(2).
102. Formerly part of Mauritius when it was still a colony, but detached from Mauritius in 1965 to form,
with some islands that had been part of the colony of the Seychelles, the British Indian Ocean Territory.
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since the Court would not have jurisdiction (because of the first part of paragraph ( ) of the 1969
declaration), Mauritius was considering first leaving the Commonwealth. The new cut-off date for
disputes (1 January 1974) replaced that of the entry into force of the UN Charter, so excluding all
claims arising before 1974.
103
We will now look at the main types of reservation.
Exclusion of certain categories of dispute
Canada’s declaration excludes disputes concerning certain fishing conservation measures taken by
Canada, and their enforcement.
104
New Zealand excludes disputes about its rights in respect of the
marine living resources within its EEZ. These represent just one general category of exclusions; a
trawl through all the declarations will show other categories.
Resort to other means of settlement
A common reservation is on the lines of paragraphs (i) of the (two) UK declarations to ensure that
another state does not go ‘forum-shopping’. But reliance on such a reservation has so far not been
successful.
105
Exclusions by reference to time
It is common to restrict the declaration to disputes arising, or facts or situations, subsequent to a
certain date.
106
The effect of the chapeau and paragraph ( ) of the UK’s 1969 Declaration was
effectively to preclude the Court having jurisdiction in most disputes between the United Kingdom
and former British territories concerning the colonial period. The UK’s 2004 declaration withdrew
its consent to jurisdiction over any dispute arising before 1 January 1974.
Self-judging reservations
The US declaration of 1946 (withdrawn in 1985) included the so-called Connally amendment that
purported to exclude from the Court’s jurisdiction disputes that were essentially within US domestic
jurisdiction ‘as
103. Hansard (HC) 6 July 2004, WS 32, and (HL) 7 July 2004, WS 35.
104. See Fisheries Jurisdiction ( Spain v. Canada), ICJ Reports (1998), p. 432, para. 14; 123 ILR 189.
105. See Certain Phosphate Lands in Nauru, ICJ Reports (1992), p. 240; 97 ILR 1.
106. See Interhandel, ICJ Reports (1959), p. 6, at pp. 10–11; 27 ILR 475, and the other cases described in
Collier and Lowe, Settlement of Disputes in International Law, Oxford, 1999, pp. 146–8.
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determined by the United States’.
107
Other states have made similar reservations. Their validity has
been considered in a few cases, but the Court has not yet ruled definitively whether they are invalid
and, if so, what the consequences are.
108
The second question raises a problem similar to certain
reservations to treaties: whether (1) the Court could sever the invalid reservation from the
declaration, or (2) the whole declaration is tainted by it, and therefore is invalid and provides no
basis for jurisdiction.
109
The latter alternative is instinctively unattractive to any court, but is
probably correct. Although a declaration creates bilateral obligations, it is a unilateral act. The state
has said it will accept the jurisdiction subject to that reservation. If it is held to be invalid, but the
state refuses to withdraw it, then an essential condition for the state’s acceptance of the Court’s
jurisdiction has not been met.
Vandenberg amendment
The US declaration also included the so-called Vandenberg amendment concerning disputes arising
under a multilateral treaty: the Court would not have jurisdiction ‘unless (1) all parties to the treaty
affected by the decision are also parties to the case before the Court or (2) the United States of
America specially agrees to jurisdiction’. The United States invoked this reservation in the
Nicaragua case, arguing that, since Nicaragua argued that the US was in breach of the UN Charter,
all UN Members would have to be parties to the case. The Court held that the reservation applied
only to states whose rights and obligations would be affected by its judgment. As El Salvador would
be affected, yet was not a party to the proceedings, the Court decided that it could not exercise
jurisdiction on the basis of the Charter, but nevertheless could do so on another basis.
110
Variation of declarations
A state can vary the terms of its declaration only if it has reserved the right to do so (as in the UK
declarations).
111
If it has not reserved the right to vary, it would have to withdraw the whole
declaration and replace it
107. On similar, and more recent, US so-called constitutional reservations to treaties, see p. 75 above.
108. See Collier and Lowe, Settlement of Disputes in International Law, Oxford, 1999, pp. 143–6.
109. See p. 74 above.
110. ICJ Reports (1986), p. 392, paras. 36–56; 76 ILR 1.
111. See Right of Passage, ICJ Reports (1957), p. 125; 24 ILR 840; and Nicaragua v. US, ICJ Reports
(1984), p. 392; 76 ILR 104.
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with a modified one. If a declaration is for an indefinite period, it can be withdrawn either in
accordance with a reservation to that effect in the declaration or, if not, by analogy with a treaty,
112
only after the expiry of a reasonable notice period.
113
If a declaration is withdrawn or lapses
114
after
the Court has been seised of a case, this will not affect the Court’s jurisdiction.
115
Admissibility
This topic has been dealt with at p. 441 above. Respondents often plead that a claim is inadmissible,
but the argument rarely succeeds. There are a few cases where the Court decided that it could not
exercise its evident jurisdiction. The jurisprudence of the Court shows that it will reject claims that
are hypothetical and lacking any real purpose,
116
those which have become moot
117
or those in
which the applicant state has no legal interest.
118
It will also decline to exercise jurisdiction if a state that is not a party to the proceedings has a
legal interest that would put it at the centre of the case. The Monetary Gold case concerned the
ownership of gold removed by Italy from Albania in 1943, but Albania was not a party to the
proceedings. Since Albania’s legal interest would be the ‘very subject matter’ of the decision the
Court was being asked to make, the Court refused to exercise jurisdiction.
119
In the case of East
Timor (then a Portuguese colony annexed unlawfully by Indonesia), Portugal brought proceedings
against Australia concerning the latter’s treaty with Indonesia purporting to delimit the continental
shelf between Timor and Australia. Applying the Monetary Gold judgment, in 1995 the Court
refused to exercise jurisdiction as the ‘very subject matter’ of its judgment would have been to
determine whether Indonesia could have concluded the treaty, yet Indonesia was not a party.
120
But,
in the Certain Phosphate Lands case, the Court did
112. But see Fisheries Jurisdiction (Spain v. Canada), ICJ Reports (1998), p. 432; 123 ILR 189.
113. See Nicaragua v. US, ICJ Reports (1984), p. 392, at p. 420, paras. 52–66; 76 ILR 104.
114. Article 36(3) allows declarations to be made for a certain time (duration).
115. Nottebohm, ICJ Reports (1953), p. 121, at p. 123; 20 ILR 567.
116. Northern Cameroons, ICJ Reports (1963), p. 15; 35 ILR 353.
117. Nuclear Tests, ICJ Reports (1974), (Australia) p. 253, paras. 21 et seq., and (New Zealand), p. 457,
paras. 21 et seq.; 57 ILR 348.
118. South West Africa, ICJ Reports (1966), p. 6; 37 ILR 243.
119. ICJ Reports (1954), p. 32; 21 ILR 399.
120. ICJ Reports (1995), p. 90, paras. 33–6; 105 ILR 226.