THE CONTENTIOUS JURISDICTION OF THE COURT. I. Introductory Remarks

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1 30 CHAPTER I THE CONTENTIOUS JURISDICTION OF THE COURT I. Introductory Remarks (a) Settlement of inter-state disputes 11. The ICJ has the status of the principal judicial organ of the United Nations (United Nations Charter, Art. 92). Moreover, only States may be parties in cases before the Court (Statute, Art. 34). The ICJ and its predecessor, the PCIJ, both dealt with a number of inter-state disputes. For reference purposes, I would like first of all to present a comprehensive list of the contentious cases before the PCIJ and the ICJ arranged according to the date of submission; the number given to each case (being dissimilar to the system of numbering used in any other authoritative scholarly work or document) will be used throughout this lecture (see Comprehensive List of Contentious Cases at the end of the text, pp ). 12. During the nearly two decades of the PCIJ, between 1922 and 1939, the contentious cases totalled 35 and, in the half century since the ICJ began its function in 1946, the total has amounted to 57, apart from the cases which are still pending. In comparison with the number of disputes of an international nature which actually occurred during the same period, those figures are certainly not very large. In fact, about 20 years ago, when the United Nations General Assembly made an appeal in connection with the role of the ICJ in its 1974 resolution (A/RES/3232 (XXIX)), there was a general tendency for the Court to be under-used or even totally neglected. Indeed, with the exception of the twin Nuclear Tests cases, which were shortly to be declared moot (C.39A/B), the docket of the Court was empty at that time. The Court was inactive, however, not because there were no international disputes for which a peaceful settlement could have been found by bringing them to the Court, nor on account of the Court s own lack of organization. It had rather

2 been forced into inactivity by the attitude of States in their reluctance to make use of it. Once again, the purpose of that 1974 resolution was not to reconstitute or reorganize the ICJ but to encourage the member States to change their attitude with respect to the judicial function discharged by the Court. The then United Nations Secretary-General, Mr. Javier Pérez de Cuéllar, in his General Report of 1990 on the work of the Organization, was still saying that [t]he rule of law in international affairs should... be promoted by a greater recourse to the International Court of Justice (A/45/1, p. 7) and, as I said at the beginning, the present Secretary-General, Mr. Boutros-Ghali, in his report An Agenda for Peace issued in June 1992, also talked about the ICJ which he saw as an under-used resource for the peaceful adjudication of disputes (DPI/1247, para. 38). (b) Necessary consent of States The International Court of Justice As may be surmised from those suggestions and in the light of the objectives of the ICJ, many inter-state disputes, which occur each and every day, can be dealt with by the Court if they are referred to it with the consent of the States concerned. The reason why the ICJ cannot play its proper and expected role relates to the most basic character of international society, that is, a State s enjoyment of sovereignty, and it is a fundamental rule of the ICJ that the exercise of its jurisdiction is based solely on the consent of sovereign States. The ICJ, unlike any domestic court, does not have any solid basis giving it direct control of the rules governing the settlement of disputes between the subjects of its jurisdiction. The ICJ is not in a position to exercise its jurisdiction in an autocratic manner, and this comparative lack of power derives from the Statute of the Court, which provides that jurisdiction may be conferred upon the Court by an ad hoc agreement between States for the submission of a particular dispute or by an obligation that they may have entered into, whether on a bilateral or multilateral basis, prior to the submission of the said dispute. 14. The conferment of jurisdiction on the Court is thus left to the decision, freely reserved, of sovereign States, and this has been guaranteed by well-established principles of international law. In other words, no State is bound to submit its disputes with other States

3 32 Shigeru Oda to judicial settlement, and that includes, of course, settlement by the ICJ. Whether or not this entirely optional nature of the decision by sovereign States to submit disputes to judicial settlement by a third-party authority either as a rule or case by case is something that should be altered is not a question relating to the ICJ alone, but relates, rather, to an essential characteristic of the basic concept of international society. How have actual disputes been presented to the Court for settlement, and how have they been resolved by the Court (or not, as the case may be), particularly looking at the practice of the Court over the past 20 years? II. Referral of Contentious Cases to the Court by Special Agreement 1. Rules and practice 15. The Statute of the Court provides that the jurisdiction of the Court comprises all cases which the parties refer to it (Art. 36 (1)). Cases may be brought before the Court by the notification of a special agreement (Statute, Art. 40 (1)). In such cases jurisdiction is conferred in the same way as in the large number of arbitrations which have been conducted in international society since the end of the 18th century, in that referral to a tribunal is made on an ad hoc basis for each particular dispute. There is a difference, certainly, between arbitration and the referral of a case to the ICJ in the sense that, for the arbitration procedure, there has to be an agreement to set up the tribunal itself, while the ICJ, on the other hand, is an existing institution. However, there is a common point in that both parties mutually recognize the existence of the dispute and agree to attempt to solve it through a third-party authority which may apply relevant objective criteria, such as those of international law. The formula of referral to the ICJ is quite similar to the function of a compromis in arbitration, and the subject of the dispute must specifically be agreed upon by both parties to that compromis. Essential, of course, is that the parties have a common intention to comply with the procedures to be followed and observed, in accordance with the Statute and the Rules of Court. 16. Whether certain categories of dispute are to be solved by

4 The International Court of Justice 33 means of a political method, such as diplomatic negotiations, or whether certain disputes should be de-politicized and referred to judicial settlement, is itself a political decision which each State must make, and that decision is generally made by the State concerned after careful consideration, taking account of the likelihood that both parties to the dispute will have confidence in the result to be expected from resort to third-party judgment. Thus the referral of a dispute by special agreement to the ICJ or to arbitration is possible only when both sides are confident that an acceptable outcome will be achieved. 17. Examples of this type of referral of disputes to the Court are, however, not too numerous (see Table 1, infra, pp ). In the nearly 20-year period between the two World Wars, there were 11 cases of this kind jointly presented to the PCIJ. The examples of joint referral during the much longer period of the present Court are only seven in number, not counting the Danube River Project case which is now pending before the Court (C.65), and excluding some Chamber cases which may also be regarded as cases submitted by agreement between the States in dispute, but which will be discussed separately (see section IV below). 18. In the early period of the ICJ, there was the Asylum case in 1950 between Colombia and Peru, which related to diplomatic asylum granted to a political refugee (C.4), the Minquiers and Ecrehos case in 1953 between France and the United Kingdom, concerning sovereignty over some small islands and islets between Jersey and the French coast (C.10), and the Belgian-Dutch Frontier Lands case in 1959, which settled the question of sovereignty over certain plots of land in some enclaves on the Belgian-Dutch border in Brabant (C.26). Three cases of the referral to the Court by special agreement dealt with between the late 1960s and the 1980s were all related to the boundary of the continental shelf. The first of these was brought in 1967 by West Germany and Denmark/Netherlands (C.36A/B), the second in 1978 by Tunisia and Libya (C.42), and the third in 1982 by Libya and Malta (C.45). After the judgment in the Libya/Malta Continental Shelf case (C.45) was given in 1985, there was no other case of joint referral to the full Court until the submission in 1990 of the Territorial Dispute case between Libya and Chad in Africa (C.57), which was decided in February 1994.

5 34 Shigeru Oda It is interesting to note that all of these seven cases I have just mentioned, except for the Asylum case (C.4), were related to territorial sovereignty or the delimitation of maritime or land boundaries and, moreover, that Libya has been a party to three successive cases so brought to the Court in recent years. 19. Such a procedure of joint referral of a dispute to the Court may be regarded as an ideal in the contentious proceedings of the Court, as it adds the specific willingness of both parties to be bound by the concrete decision to their obligations under the Charter and the Statute. The 1974 resolution of the United Nations General Assembly appealed to member States to keep under review the possibility of identifying cases in which use could be made of the ICJ and reaffirmed that referral to the ICJ should not be considered an unfriendly act between States (A/RES/3232 (XXIV)). This is obviously an allusion, in the main, to the possibility of referring disputes to the Court by special agreement. 2. Trust fund 20. In connection with the need to promote the more frequent use of the Court, particularly by the developing countries, Mr. Pérez de Cuéllar, the former United Nations Secretary-General, made an innovative proposal to the General Assembly in September 1989, aimed at the setting-up of a trust fund to assist developing States in settling disputes through the ICJ (A/44/1). The purpose of the proposed fund, envisaged only in connection with disputes referred to the Court by means of a special agreement, was to make financial assistance available to States for such expenses as the hiring of counsel and the preparation of written documents for pleadings or for the execution of a judgment of the Court resulting from a submission of this kind. This project has now come into operation as more than 30 States had contributed over half a million dollars by 1992 (A/47/444). The Secretary-General, Mr. Boutros-Ghali, appealed in his report An Agenda for Peace for States to support the Trust Fund established to assist countries unable to afford the cost involved in bringing a dispute to the Court, and such countries should take full advantage of the fund in order to resolve their disputes. The Libya/Chad Territorial Dispute case (C.57) in 1994 has so far been the only instance in which a grant from the trust fund has been made to assist

6 The International Court of Justice 35 one party Chad in this instance in pleading its case before the Court. III. Referral of Contentious Cases to the Court by Unilateral Application IIIA. Unilateral Application 21. Cases may be brought before the Court by a written application addressed to the Registrar. This kind of unilateral application is made possible under either Article 36 (1), or Article 36 (2) of the Statute. 1. The compromissory clause in treaties (Statute, Article 36 (1)) 22. The Statute provides that the jurisdiction of the Court comprises... all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force (Art. 36 (1)). The reference to the Charter of the United Nations in this provision requires some explanation. It was inserted in the Statute at the time of its drafting when it was expected that the Charter itself would contain some provisions concerning the compulsory jurisdiction of the Court. In fact, there exists no specific provision in the Charter for the compulsory jurisdiction of the Court and that reference to the Charter does not make much sense. At any rate, it appears never to have been put to the test. 23. The treaties and conventions in force which contain compromissory clauses which obligate the parties to refer to the Court any such disputes as may arise out of their interpretation or application are manifold, from the conventions establishing international organizations such as ICAO, FAO, WHO, ILO, IAEA, etc., to various multilateral or bilateral treaties. Some treaties have been specifically aimed at the establishment of compulsory means and methods for the peaceful settlement of disputes, particularly including reference of disputes to the ICJ. The 1949 Revised General Act for the Pacific Settlement of International Disputes is one such example (UNTS, Vol. 71, p. 102). The Act, prepared on a global basis, has, however, not received the wide sup-

7 36 Shigeru Oda port of States. No more than ten of them have ratified the Act, these being mainly States in Western Europe. On the other hand, the 1948 American Treaty on Pacific Settlement (Pact of Bogotá) (UNTS, Vol. 30, p. 55) and the 1957 European Convention for the Peaceful Settlement of Disputes (UNTS, Vol. 320, p. 243), both provide on a regional basis for a general obligation to refer disputes to the ICJ. In addition to these universal or regional treaties, there are a few bilateral treaties mainly aimed at the peaceful settlement of disputes between the States parties, such as the 1940 Treaty for the Pacific Settlement of Disputes between Brazil and Venezuela (UNTS, Vol. 51, p. 291), but this type of bilateral treaty is very rare. Such treaties, concluded on a global, regional or bilateral basis, may be regarded as functionally equivalent to mutual recognition of the acceptance of the compulsory jurisdiction of the Court as under Article 36 (2) of the Statute, which is known as the optional clause (see subsection 2 below). 24. The most common type of compromissory clause is found in a number of treaties and conventions, whether bilateral or multilateral, that relate to specific subjects and oblige the States parties to bring to the ICJ any disputes arising from the application and interpretation of their provisions. This is the type of clause that, as the 1974 resolution of the United Nations General Assembly suggested to member States, should be inserted in treaties to provide for the submission to the Court of such disputes as might arise from their interpretation or application (A/RES/3232 (XXIX)). The list of such compromissory clauses found in a number of treaties and conventions, whether bilateral or multilateral, may be consulted in the ICJ Yearbook (Chapter IV Texts Governing the Jurisdiction of the Court). There are quite a few bilateral treaties of this type, particularly the treaties of Friendship, Navigation and Commerce, but from 1974 to 1993 only six are known to have been added. 25. There have also been quite a number of multilateral treaties which contain the compromissory clause, for example: Genocide Convention (1948). Convention on the Nationality of Married Women (1957). Antarctic Treaty (1959). Single Convention on Narcotic Drugs (1961).

8 The International Court of Justice 37 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965). Protocol relating to the Status of Refugees (1967). Convention on the Law of Treaties (1969). Convention on the Suppression of the Unlawful Seizure of Aircraft (1970). Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973). The multilateral treaties which were added to the list in the ICJ Yearbook between 1974 and 1993 are only 15 in number. They include: International Convention against the Taking of Hostages (1979) (adopted by the United Nations General Assembly). International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989) (adopted by the United Nations General Assembly). Convention on the Conservation of Antarctic Marine Living Resources (1980) (signed at Canberra). Convention for the Protection of the Ozone Layer (1985) (signed at Vienna). Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) (signed at Vienna). United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (signed at Vienna). Convention on Biological Diversity (1992) (adopted at Rio de Janeiro by the Earth Summit Conference on the Environment). It should be pointed out that in most cases the parties are allowed to make reservations in respect of the compromissory clauses and, in fact, some States parties have made such reservations, thus reducing the potential for compulsory referral to the ICJ. It was a remarkable fact, however, that, in its Foreign Minister s letter of 23 February 1989 addressed to the United Nations Secretary-General, the Soviet Union withdrew its reservations which had been appended to several multilateral treaties related to human rights, including the 1948 Genocide Convention. This example was followed by the Byelo-

9 38 Shigeru Oda russian SSR (Belarus), and the Ukrainian SSR (Ukraine) in the same year. Likewise Bulgaria, as of 6 May 1994, withdrew its reservations with respect to certain provisions in the 21 multilateral conventions to which it is a party. 26. It is to be noted that a new form of acceptance of compulsory jurisdiction was employed by the 1958 United Nations Conference on the Law of the Sea, and that a separate document called the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was prepared independently of the four Geneva Conventions on the Law of the Sea (UNTS, Vol. 450). This would facilitate accession by as many States as possible to the new régime which appeared to have just emerged from the recent development of the use of the ocean. This procedure of optional protocol was followed later with respect to the law-making treaties, such as the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, and the 1969 Convention on Special Missions (UNTS, Vol. 500; Vol. 596; A/RES/2530 (XXIV)). I would also point out, however, that the 1982 United Nations Convention on the Law of the Sea, which represents a really comprehensive structure affecting the use of the oceans, incorporates the compromissory clause as an integral part of the provisions of its 320 articles, which I shall explain towards the end of these lectures. 2. The Optional Clause in the Court s Statute (Statute, Article 36 (2)) (a) Inclusion of the optional clause 27. In parallel to the compromissory clause in treaties that I have just mentioned, one provision of the Statute itself points the way to the compulsory settlement of disputes. This is Article 36 (2), known as the optional clause. The term is misleading in the sense that States, when becoming Members of the United Nations, do not have any option to accept or reject the provision itself, which is, of course, an integral part of the Statute and hence of the Charter. However, Article 36 (2) is unique in that it is not, like other Articles, prescriptive, but merely descriptive of an option which would exist even in the absence of any such provision. This is not to say that a State would be likely to take the initiative of such a declaration if the

10 The International Court of Justice 39 exhortation or stimulus of Article 36 (2) did not exist, since to do so would in those circumstances appear quixotic Attempts to subject legal disputes among nations to the compulsory jurisdiction of an international tribunal have been made several times since the end of the last century. The judicial settlement of inter-state disputes was proposed, for instance, at the 1899 and 1907 Hague Conferences, although this led to no concrete result. In the meetings of the Advisory Committee of Jurists, which initiated the planning of the PCIJ in 1920, such an idea was promoted, but the majority of the Committee members held the view that the time was not yet ripe for the international community to accept an overall obligation to be bound by the judicial settlement of disputes. In fact, the consent of each State to accept such an obligation was deemed to be absolutely necessary. The arguments surrounding that problem during the preparation of the Statute of the PCIJ clearly reflected the still prevalent concept of national sovereignty as dominant in international society. It was in that context that Article 36 (2) of the Statute was drafted as one of the cornerstones of the PCIJ. The ICJ, operating under the United Nations system, inherited it as what is still Article 36 (2), now of the ICJ Statute: The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes... Legal disputes within the meaning of this Statute may concern the following: (a) the interpretation of a treaty; (b) any question of international law; 1. The fact remains that the term optional clause has been responsible for many erroneous statements that this or that State does not recognize the Court and is free not to do so, when the question it addresses is the narrower one of whether a State may accept the jurisdiction of the Court as compulsory in advance of the advent of a dispute. The reason for the misunderstanding, which has afflicted even government law officers, can surely be seen in the confusing of the optional clause with the optional protocol for the settlement of disputes which is frequently attached to multilateral conventions and may be totally ignored by any signatory. All in all, one would do well to bear in mind that the optional clause is simply a convenient term of art and not an official description.

11 40 Shigeru Oda (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. 29. The compulsory jurisdiction of the Court may be accepted unconditionally or on the condition that certain States enter into the same obligation either without specifying a time-limit or for a limited period of time. In a situation where both parties in dispute have made such a declaration and their declarations simultaneously cover the dispute in question, the jurisdiction of the Court is regarded as being established. The making of a declaration is a unilateral act, which, far from being sacrificial, is also to the State s advantage, in that it confers a right of action against States in a similar position. However, as the making of the declaration functions in the same way as an offer to conclude an agreement and depends on reciprocity, the practical effectiveness of the system depends on the number of States which are willing to participate in it and the relative breadth of the obligations which they are ready to accept thereunder. For, as is well known, the acceptance is commonly hedged with statements of reservations and exclusions. 30. In 1974, the year of the appeal by the United Nations General Assembly for the revitalization of the Court, 45 out of 141 States parties to the Statute had accepted the compulsory jurisdiction of the Court under this optional clause. Since then, the number of accepting States has not increased considerably, despite the increased number of States parties to the Statute. In fact, the United States proceeded in October 1985, on the occasion of the loss of its case against Nicaragua (at the jurisdictional phase), to withdraw the acceptance which it had maintained ever since the Court was set up in France had, even before this event, withdrawn its acceptance, just after being brought before the Court by Australia/New Zealand in connection with its nuclear tests in the atmosphere in the South Pacific in As of July 1994, the States parties to the Statute of the Court number 184. However, only 58 States out of that 184 have declared acceptance of the compulsory jurisdiction of the Court; 16 of these are in Africa, 7 in Asia and 9 in Latin America. After the change in nature of the Eastern European régimes, Poland (1990), Estonia (1991), Bulgaria (1992) and Hungary (1992) accepted the

12 The International Court of Justice 41 compulsory jurisdiction of the Court. The United Kingdom is the only permanent member of the Security Council to have maintained a declaration of acceptance. 31. However, the mere number of States accepting the optional clause does not in itself have much significance, if one considers that most of the declarations of acceptance of the compulsory jurisdiction of the Court are qualified by one or more reservations and that some other declarations are made only for a certain period of time, which limits the extent to which the objective of universal and unqualified acceptance of that jurisdiction is in fact attained. (b) Reservations appended to the declaration of acceptance 32. When the Statute of the PCIJ was first drafted in 1920, no reservation to the acceptance of compulsory jurisdiction was anticipated. However, in reply to questions raised as to the legality of attaching a reservation to the declaration, and with a view to promoting acceptance of the compulsory jurisdiction of the Court by as many countries as possible, the Assembly of the League of Nations considered in 1924 that the terms of Article 36 (2) were sufficiently wide to permit States to accept it with any reservations that could be regarded as indispensable. Four years later, in 1928, the Assembly of the League of Nations again passed a resolution along the lines suggested four years previously and, with a view to diminishing the obstacles which prevented States from committing themselves to the PCIJ, recommended that States should, if they could not agree to accession pure and simple, consider whether they could accede under certain specific conditions with regard to duration and scope. Thus, within less than ten years from the foundation of the PCIJ, reservations to acceptance of the compulsory jurisdiction of the Court had come to be regarded as permissible, in that they made it easier for more States to accept such jurisdiction. In the 1930s, it became common practice for States to make a variety of reservations to their declarations. 33. During the preparation of the Statute of the ICJ at the San Francisco Conference, no doubt was expressed as to the permissibility of making reservations to declarations of acceptance of the compulsory jurisdiction of the Court, and it was widely accepted that such reservations could indeed be made. Most declarations of acceptance of the compulsory jurisdiction of the new Court have been accompanied by reservations. The scope of

13 42 Shigeru Oda reservations has been a great deal more far-reaching than in the case of those declarations which were made under the PCIJ. If you look at 58 declarations recognizing as compulsory the jurisdiction of the Court (which you will find in the ICJ Yearbooks), you will see a wide variety of reservations attached to nearly every one; only a few are not accompanied by any reservation, and those declarations have mostly been made by the countries of Latin America. 34. As examples of reservations attached to declarations, I must mention the famous Connally amendment to the US declaration of 1946, which excluded from the acceptance of the Court s jurisdiction disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America. This so-called automatic reservation was subsequently adopted by some other States, but has been subject to criticism because such a professed acceptance of compulsory jurisdiction in the declaration is deemed to be illusory. The United States added another reservation for disputes arising under a multilateral treaty, unless all Parties to the treaty affected by the decision are also Parties to the case before the Court, and the socalled Vandenberg Amendment, that provided for a multilateral treaties reservation, was emulated by certain States. (c) Limitation of the period of validity of the declaration 35. In the early period of the PCIJ most of the States parties to the Statute accepted compulsory jurisdiction for a fixed period, mostly five years, and then renewed their acceptance after the expiration of the initial period. A remarkable development occurred in 1929, when Great Britain and the then Empire countries introduced a new concept of immediate terminability of a declaration, which was adopted by some other States. Yet this immediate terminability of acceptances of jurisdiction did not encounter any challenge. 36. With respect to the period of the ICJ, I would make the following observations. There are some declarations which do not specify any fixed period, or which have been made for an indefinite or unlimited period. In these cases, the immediate termination of these declarations is no longer a problem and some of the declarations now explicitly reserve the right to add further reservations at any time. Some further declarations are to remain valid until notice of termination is given and this type of declaration has in fact increased in number.

14 The International Court of Justice 43 On the other hand, declarations for a fixed period, several of which were made at the beginning of the Court s existence, are very rare today, and Costa Rica and Nauru are the only countries which retain this formula. The type of declaration for a fixed period which is automatically renewed unless notice is given not less than six months before the termination of the period, has been made by some countries, mainly in Western Europe, such as Denmark, Finland, the Netherlands, Norway and Sweden, and now Poland. Certain declarations which, while not defining any period of validity, require a six-month or one-year period of advance notice if the acceptance of jurisdiction is to be terminated, have been made by Liechtenstein, Mexico, New Zealand and Switzerland. 37. It is a striking fact that there are only 13 countries which have bound themselves to be subjected to the compulsory jurisdiction of the Court for a certain period: two in the western hemisphere, Costa Rica and Mexico, one in Oceania, Nauru, nine in the group of Western European and other States, namely Denmark, Finland, Liechtenstein, Luxembourg, the Netherlands, New Zealand, Norway, Sweden and Switzerland, and one in eastern Europe, Poland. I must point out, however, that even in these cases, it may well be argued in the light of the precedents of the United Kingdom and France in the period of the PCIJ, that these States may also justifiably terminate their acceptance of the obligation at any time during those periods specified in their declarations. 38. I must further point out that the question of reciprocity may arise in a case where one party s adherence to the compulsory jurisdiction system is terminable at any time, while the other party is bound by its own declaration not to terminate for a certain fixed period such as in the case of those 13 States which I have just mentioned. In view of the fact that the optional clause was so drafted as to enable each declarant State to recognize as compulsory... [only] in relation to any other State accepting the same obligation the jurisdiction of the Court, it does not seem to be reasonable or equitable to allow a party which, as a respondent, would be free to escape at any time from the compulsory jurisdiction of the Court to take undue advantage, as an applicant, by imposing upon the other party the burden of inescapability which it does not itself bear. The reciprocity of the obligation must exist at the date of the seizing of the case, and acceptance of the Court s jurisdiction by the applicant and respondent must be current at that date.

15 44 Shigeru Oda (d) Conclusion 39. After having examined the way in which Article 36 (2) of the Statute may actually operate, I conclude that the referral of disputes under the optional clause may be rather limited in scope, in that the clause itself hardly operates as a means for the compulsory submission of disputes to the Court. The optional clause in effect plays a double role: one positive, in that it may on occasion enable a unilateral application to succeed, and the other negative, in that it may sometimes result in a respondent being brought to the Court against its will or, rather, against its second thoughts. Thus a State, by declaring its acceptance of the compulsory jurisdiction of the Court, may seek to acquire locus standi in a case in which the odds are in its favour, but on the other hand it may, where it feels placed at a disadvantage, try to release itself from the compulsory jurisdiction of the Court by the termination or amendment of its declaration. 40. Mr. Boutros Boutros-Ghali, the United Nations Secretary- General, in his 1992 report An Agenda for Peace, suggested that, in order to reinforce the role of the ICJ: All Member States should accept the general jurisdiction of the International Court under Article 36 of its Statute, without any reservation, before the end of the UN Decade of International Law in the year (DPI/1247, para. 39 (a).) This is certainly most desirable. However, the fact remains and this is what I want to stress that the judicial settlement of international disputes still remains in the hands of those States that are really willing to defer to the ICJ. I will now further clarify this conclusion by examining the attitudes of the respondent States in cases brought by unilateral application. IIIB. Attitudes of Respondent States toward Unilateral Applications 1. Acceptance of the Court s jurisdiction by respondent States (a) Deference to the Court s jurisdiction 41. In cases brought unilaterally before the Court by written application, there have been certain occasions on which the respondent State has agreed to proceed without raising any objection to the

16 The International Court of Justice 45 jurisdiction of the Court. Not counting the cases which were withdrawn by the applicant or discontinued, there were eight cases of this kind in the period of the PCIJ, and during the lifetime of the ICJ there have been ten cases in which no objection has been raised by the respondent State to a unilateral application, so that the Court has proceeded immediately to the merits phase and delivered its judgment (see Table 2, infra, pp ). 42. In three of the eight cases of the ICJ (excepting the two cases relating to the revision and/or the interpretation of a previous judgment (C.6, C.48)), compromissory clauses of treaties and conventions were relied upon by the applicant State as a basis of jurisdiction; in the Haya de la Torre case (C.7), a case against Peru, Colombia relied upon the 1928 Havana Asylum Convention; in the Arbitral Award by the King of Spain (C.27), a case against Nicaragua, Honduras relied upon its bilateral treaty with Nicaragua of 1957; and in the Jurisdiction of the ICAO Council (C.37), a case against Pakistan, India relied upon the 1944 Convention on International Civil Aviation. In those three cases the respondent States, Peru, Nicaragua and Pakistan respectively, raised no objection. In the remaining five of the eight cases, the optional clause, that is, Article 36 (2) of the Statute, was relied upon by the applicant States as the basis of jurisdiction. These are the Fisheries case (C.2), brought by the United Kingdom against Norway; the Rights of US Nationals in Morocco (C.5), brought by France against the United States; the Guardianship of Infants (C.21), brought by the Netherlands against Sweden; and two recent cases: the Guinea-Bissau/ Senegal Arbitral Award case (C.56) in 1990, brought by Guinea- Bissau against Senegal; and the Jan Mayen case (C.53), brought by Denmark against Norway, on which judgment was delivered in June (b) Forum prorogatum 43. In this connection, mention should be made of the concept of forum prorogatum, which is unique to the ICJ and its predecessor, the PCIJ. This concept was not positively supported in the preparation of the Statute of the PCIJ in 1920, yet the PCIJ itself took a step to open the way for its use by inserting into its Rules of Court a provision according to which the specification of the legal grounds upon which the jurisdiction of the Court was based would not be absolutely required in the application opening the proceedings.

17 46 Shigeru Oda The application has to specify the legal basis for the jurisdiction of the Court, but only as far as possible (the 1946 Rules, Art. 32 (2); the 1972 Rules, Art. 34 (2); the 1978 Rules, Art. 38 (2)). Inasmuch as the specification of the legal basis is not required but recommended as being desirable, and in the light of the recent provision incorporated into the 1978 revised Rules of Court concerning the Court s jurisdiction founded upon a consent thereto yet to be given or manifested by the [respondent] State (the 1978 Rules, Art. 38 (5)), it is clear that the system of forum prorogatum is now seen as an established institution. In other words, even in a situation in which there is no basis of jurisdiction of the Court, whether in terms of the compromissory clause of any treaty or of the optional clause of the Statute, applicant States can bring a case against other States, with a legitimate, if not strong, expectation that the respondent State may consent to proceed with the case. 44. Eight cases have been referred to the ICJ by application of this procedure, all in the early period of the Court (see Table 3, infra, p. 160). The United States brought two cases in 1954 against Hungary and the Soviet Union respectively, concerning the treatment of American aircraft crews which had been shot down (C.14, C.15), and two cases in 1955, one against Czechoslovakia (C.16) and one against the Soviet Union (C.18) and two further cases both against the Soviet Union, in 1958 and 1959 respectively (C.28, C.31), concerning the shooting down of US military aircraft. There were also two cases in the mid-1950s, in which the United Kingdom instituted proceedings against Argentina and Chile respectively, concerning the status of Antarctica (C.17A/B). However in none of these eight cases were the proceedings continued. 45. As the 1978 Rules state that such an application should not... be entered into the General List, nor any action be taken in the proceedings, unless and until [the other State] consents to the Court s jurisdiction for the purpose of the case (Rules, Art. 38 (5)), such an application, if indeed there were one, would pass unnoticed. It is known, however, that one case was brought on a similar basis in 1992, namely Hungary s application in its dispute with Czechoslovakia concerning the diversion of the Danube through the inauguration of the Gabčíkovo Dam project. Naturally, having instituted proceedings only a few weeks before the expected dissolution of the

18 respondent State, Hungary could not have been surprised that its application should have met with the same fate as the eight others just described. In fact, the same dispute, in modified terms, has since been made the subject of a special agreement between Hungary and this time Slovakia, to refer the matter to the Court (C.65). 46. As the last example tends to show, this system may be recommended in order to avoid the need to negotiate a compromis although, in practice, it is most likely that, if a respondent State were ready to proceed, it would rather be inclined to negotiate a compromis with the applicant State. On the other hand, I believe that this approach should not be employed by applicant States which are merely making a gesture of deference to the judicial settlement of disputes. 2. Objections to unilateral applications (preliminary objections) (a) In general The International Court of Justice Where proceedings are brought by a unilateral application, the respondent State may raise preliminary objections. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits are suspended, and written and oral proceedings, similar mutatis mutandis to those required in the merits phase, are then begun for this jurisdictional phase (Rules, Art. 79 (3)-(5)). After these proceedings the Court gives it decision, in the form of a judgment, by which it either upholds or rejects the objection. The Court may declare that, in the circumstances of the case, the objection does not possess an exclusive preliminary character, and thus may join the objection to the merits (Rules, Art. 79 (7)). 48. The preliminary objection may be defined as any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits (Rules, Art. 79 (1)). As no other objection within the meaning of that provision has ever been raised, such preliminary objections as have in fact been raised by respondent States relate either to the jurisdiction of the Court or to the admissibility of the application. It is sometimes difficult to draw a strict distinction between objec-

19 48 Shigeru Oda tions on the grounds that the Court lacks jurisdiction and objections on the grounds of inadmissibility. One may say that issues concerning the Court s jurisdiction imply those concerning admissibility, and it is true that, in most cases, an objection to the jurisdiction of the Court is first dealt with by the Court, combined with the issue of admissibility. Sometimes an objection alleging inadmissibility can only be dealt with through an examination of the merits of the case and is thus combined with the merits phase (see Table 4, infra, pp ). (b) Objections alleging that the Court lacks jurisdiction 49. In fact, all the instances of formal preliminary objections have been raised with respect to the jurisdiction of the Court or have at least included that objection. 50. In a number of cases the Court has had to uphold preliminary objections with respect to its jurisdiction, thus rejecting the application on account of lack of jurisdiction, while the applicant had attempted to rely on either the compromissory clause of a treaty or convention, or the optional clause of the Statute. The cases brought by unilateral application thus came to an end. In the Aegean Sea Continental Shelf case (C.41), the Court found in 1978 that it lacked jurisdiction to deal with the application on the basis of the inadequate legal effect of the compromissory clauses of treaties relied upon by the applicant, when it ruled the 1928 General Act for the Pacific Settlement of International Disputes to be unreliable for the applicant s purposes and also denied the binding character of the acceptance in principle of judicial settlement in a press release. In several other cases such as the Anglo-Iranian Oil Co. case (C.9), Certain Norwegian Loans case (C.19) and the 1955 Aerial Incident case (C.23), which were unilaterally brought before the Court by the United Kingdom, Norway and Israel respectively, all on the basis of the optional clause of the Statute, the Court upheld the objections raised by the respective respondent States, which were Iran, France and Bulgaria, and thus terminated the respective proceedings on the merits in 1951, 1955 and Thus, in a number of cases, the Court had to reject the application on account of a lack of jurisdiction, while the applicant had attempted to rely on either the compromissory clause of a treaty or convention, or the optional clause of the Statute.

20 The International Court of Justice On the other hand, there have been a number of instances in which the Court has proceeded to the merits phase after rejecting preliminary objections alleging a lack of jurisdiction. Among those are the Corfu Channel case (C.1), the Ambatielos case (C.8), the Fisheries Jurisdiction cases (C.38A/B) and the Tehran Hostages case (C.43), all of which were based on the compromissory clauses of conventions or treaties as referred to in Article 36 (1) of the Statute, and the Nottebohm case (C.11), the Right of Passage over Indian Territory (C.20), the Temple case (C.32) and the Nicaragua/US case (C.47), all of which were based on Article 36 (2) the optional clause of the Statute. (c) Objections alleging inadmissibility 52. Objections to the admissibility of an application are more complex than an objection alleging a lack of jurisdiction, and have been raised on various grounds. 53. There have been two cases in which an objection alleging inadmissibility was rejected and the Court proceeded to the merits phase. In the Right of Passage over Indian Territory case (C.20), the Court, at the jurisdictional phase, joined to the merits an objection to admissibility that had been raised by India on the ground that the matters concerning the passage over its territory fell exclusively within its own domestic jurisdiction, and resumed proceedings on the merits. Several objections to admissibility were also dismissed by the Court in the Nauru case (C.55) which was, however, later withdrawn. 54. In all other cases the preliminary objection alleging inadmissibility was accepted and the Court did not hand down any judgment on the merits of the cases. In the Interhandel case (C.22), brought by Switzerland against the United States, the Court found in 1959 that the Swiss Government had not exhausted the local remedies available to it in the United States domestic courts. In the Northern Cameroons case (C.34), the application by Cameroon, on the basis of the Trusteeship Agreement for the territory of the Cameroons under British administration, was found by the Court to be inadmissible in 1963 on the ground that the applicant, Cameroon, merely sought a declaratory judgment on the interpretation and application of that Trusteeship Agreement which had been terminated and was no longer in force.

21 50 Shigeru Oda In the South West Africa cases (C.33A/B), the Court, after rejecting the objection to the Court s jurisdiction raised by the respondent State, South Africa, and thus upholding the Court s jurisdiction in 1962, accepted four years later in 1966 the objections to admissibility that had been raised by South Africa, on the ground that the applicant States, Ethiopia and Liberia, could not be considered to have established any legal right or interest appertaining to them in the subject-matter of their claims. In the case concerning the Canadian-registered Barcelona Traction company (C.35), the Court, after rejecting in 1964 the objections to the jurisdiction of the Court that had been raised by Spain, declared six years later in 1970 that the application was inadmissible because, even if the majority stake in the company was, as alleged, Belgian, that did not confer legal standing on the Belgian State to defend a non-belgian company or its shareholders as such. 55. It should be mentioned that the time and expense absorbed by the two last-mentioned cases the South West Africa cases and the Barcelona Traction case prompted the Court to revise its Rules on preliminary objections in 1972, in an attempt to prevent the recurrence of such long-drawn out proceedings leading to a negative result, by providing that in order to enable the Court to determine its jurisdiction at the preliminary stage of the proceedings, the Court, whenever necessary, may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue (1972 Rules, Art. 67 (5)). This is now part of Article 79 of the 1978 Rules. 3. Non-appearance 56. When confronted by a unilateral application by another State alleging that the Court has jurisdiction, the respondent has sometimes indicated that it does not intend to appear or appoint an Agent, or has simply ignored the proceedings completely. Since Iceland took the initiative in 1972 in the Fisheries Jurisdiction cases (C.38A/B), the Court has dealt with several cases in which the respondent States, whether raising objections or not, did not appear in the proceedings brought against them.

22 When that happened, Article 53 of the Statute was suddenly thrust into the limelight. This states that whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim, although, on the other hand, The International Court of Justice 51 the Court must, before doing so, satisfy itself, not only that it has jurisdiction... but also that the claim is well founded in fact and law. The Court treats such a response of a State as if it were a preliminary objection alleging a lack of jurisdiction and proceeds to deliberate on the question of jurisdiction. The essential difference from the preliminary objection procedure lies precisely in the fact that, from the formal point of view, it is the Court itself which takes the initiative. Noteworthy is the way in which the Court, despite the attitude of the respondent, sets time-limits for the State in question to plead its case, thus allowing every opportunity for a change of mind. Under the Statute, every State party is ipso facto a party to the Court s proceedings in the case, regardless of whether it appears or not. Every State party to the Statute is obliged to comply with any Court decision on pending questions or on the merits, such obligation being unaffected by its choice not to appear and defend its own case. 57. In fact, there have been several cases in which the respondent States, whether raising objections or not, did not appear in the proceedings brought against them. In the Fisheries Jurisdiction cases, the first of this kind, Iceland raised no objection to the jurisdiction of the Court, in this case brought unilaterally by the United Kingdom and Germany, but remained silent on the matter. The Court therefore proceeded in due course to deliberate on the matter of its jurisdiction without the participation of Iceland and, in the 1973 Judgments, found that it had jurisdiction to entertain the Application of the two nations. During the merits phases of those cases, Iceland again absented itself from the proceedings, and the Judgments were delivered in favour of the applicant States. In the Nuclear Tests cases (C.39A/B) brought against France by Australia and New Zealand respectively, France responded to the Applications merely by an ambassador s letter and declined to par-