Judicial Settlement of
Interstate Disputes
Session 5
Marcelo G. KOHEN
Autumn 2010‐2011
Jurisdiction of the ICJ (cont.)
The Jurisdiction of the ICJ (cont.)
Declaration Recognizing the Court’s Jurisdiction
B. Declarations recognizing the jurisdiction of the Court (Art. 36(2) and (5) of the Statute of the Court)
1. Legal Nature
2. Temporal scope of the declaration
3. Reservations 4. Validity and nullity of reservations and declarations 5. Reciprocal application of reservations
6. Interpretation of a declaration of recognition 7. Modification and denunciation of declarations
Statute of the ICJ‐ Article 36
2. 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 concerning: (…)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Declaration Recognizing the Court’s Jurisdiction
Statute of the ICJ‐ Article 36
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Declarations recognizing compulsory jurisdiction 66 States
* Germany (30 April 2008)
* Australia (22 March 2002)
* Austria (19 May 1971)
* Barbados (1 August1980)
* Belgium (17 June1958)
* Botswana (16 March1970)
* Bulgaria (21 June 1992)
* Cambodia (19 Sept. 1957)
* Cameroon (3 March 1994)
* Canada (10 May 1994)
* Commonwealth of Dominica
(31 March 2006)
* Cyprus 3 Sept. 2002)
* Costa Rica (20 February
1973)
*Côte d'Ivoire (29 Sept. 2001)
* Democratic Republic of Congo
(8 February 1989)
* Denmark (10 December
1956)
* Djibouti (2 September 2005)
*Dominican Republic (30 Sept.
1924)
* Egypt (22 July 1957)
* Estonia (31 October 1991)
* Finland (25 June 1958)
* Gambia (22 June 1966)
* Georgia (20 June 1995)
* Greece (10 January 1994)
* Republic of Guinea (4 Dec. 1998)
* Guinea-Bissau (7 August 1989)
* Haiti (4 October 1921)
* Honduras (6 June1986)
* Hungary (22 October 1992)
* India (18 September 1974)
* Japan (9 July 2007)
* Kenya (19 April 1965)
* Lesotho (6 September 2000)
* Liberia (20 March 1952)
* Liechtenstein (29 March 1950)
* Luxembourg (15 Sept.1930)
* Madagascar (2 Jul y1992)
* Malawi (12 December 1966)
* Malta (2 September 1983)
* Mauritius (23 September 1968)
* Mexico (28 October 1947)
* Netherlands (1 August 1956)
* Nicaragua (24 September 1929)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
* Nigeria (30 April 1998)
* Norway (25 June1996)
* New Zealand (23 Sept. 1977)
* Pakistan (13 September 1960)
* Panama (25 October 1921)
* Paraguay (25 September 1996)
* Peru (7 July 2003)
* Philippines (18 January 1972)
* Poland (25 March1996)
* Portugal (25 February 2005)
* Senegal (2 December 1985)
* Slovakia (28 May 2004)
• Somalia (11 April 1963)
• Spain (20 October1990)
* Sudan (2 January 1958)
* Sweden (6 April 1957)
* Switzerland (28 July 1948)
* Suriname (31 August1987)
* Swaziland (26 May1969)
* Togo (25 October 1979)
* Uganda (3 October 1963)
* United Kingdom (5 July 2004)
* Uruguay (28 January 1921)
Declaration of Nicaragua
Mexican Declaration
[Translation from the Spanish]
[Translation from the French]
On behalf of the Republic of Nicaragua I recognize
as compulsory unconditionally the jurisdiction of
the Permanent Court of International Justice.
Geneva, 24 September 1929.
(Signed) T. F. MEDINA.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
1. Legal Nature
a) Unilateral act
b) Subordinated to a conventional instrument
c) Establishes a consensual link
(Nicaragua v. United States, ICJ 1984, at p.
418, paras. 59-60, 62; Spain v. Canada,
ICJ 1998, at para. 46ff.)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
2. Temporal Scope of Declarations
Case Concerning Right of Passage over Indian Territory
(Portugal v. India), Preliminary Objections, Judgment of
26 November 1957, ICJ reports 1957 at p. 146:
The Court considers that. by the deposit of its Declaration
of Acceptance with the Secretary-General, the accepting
State becomes a Party to the system of the Optional
Clause in relation to the other declarant States, with all the
rights and obligations deriving from Article 36. The
contractual relation between the Parties and the
compulsory jurisdiction of the Court resulting therefrom
are established, "ipso facto and without special
agreement" by the fact of the making of the Declaration.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
In regard to any legal dispute that may in future arise between the United States of
Mexico and any other State out of events subsequent to the date of this Declaration,
the Mexican Government recognizes as compulsory ipso facto, and without any
special agreement being required therefore, the jurisdiction of the International
Court of Justice in accordance with Article 36, paragraph 2, of the Statute of the said
Court, in relation to any other State accepting the same obligation, that is, on
condition of strict reciprocity. This Declaration, which does not apply to disputes
arising from matters that, in the opinion of the Mexican Government, are within the
domestic jurisdiction of the United States of Mexico, shall be binding for a period of
five years as from 1 March 1947 and after that date shall continue in force until six
months after the Mexican Government gives notice of denunciation.
Mexico, D.F., 23 October 1947.
(Signed) Jaime TORRES BODET,
Secretary of State for External Relations.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
2. Temporal Scope of Declarations
-Distinction with reservations ratione
temporis
-Start of the jurisdictional relationship
-End of the jurisdictional relationship
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
2. Temporal Scope: Start and End of the jurisdiction relationship
Case Concerning the Land and Maritime Boundary
Between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment of 11 June 1998, ICJ
Reports 1998 at para. 34:
“Withdrawal ends existing consensual bonds, while deposit
establishes such bonds. The effect of withdrawal is therefore
purely and simply to deprive other States which have
already accepted the jurisdiction of the Court of the right
they had to bring proceedings before it against the
withdrawing State. In contrast, the deposit of a declaration
does not deprive those States of any accrued right.
Accordingly no time period is required for the establishment
of a consensual bond following such a deposit.”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
The Problem of untimely applications
Examples: Portugal (Right of Passage over Indian
Territory), Guinea-Bissau (Arbitral award of 31 July
1989), Cameroon (Land and Maritime Boundary Case)
Method to Remedy the problem: Reservation
excluding “any dispute 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.”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
3. Reservations
Fisheries Jurisdiction Case (Spain v.
Canada), Jurisdiction of the Court,
Judgment of 4 December 1998, ICJ
Reports, at para. 44:
“Conditions or reservations thus do not by their
terms derogate from a wider acceptance
already given. Rather, they operate to define
the parameters of the State’s acceptance of
the compulsory jurisdiction of the Court. There
is thus no reason to interpret them
restrictively.”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
3. Reservations
• Terminology
• Distinction with the law of treaties
• Legal nature
• Right to formulate reservations
ICJ Statute, Article 36(2) and
3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the
part of several or certain states, or for a certain time.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
3. Reservations
a)
Ratione materiae
b)
Ratione temporis
c)
Ratione personae
d)
Ratione loci
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
3. Reservations ratione temporis
4. Validity and Nullity of Reservations and Declarations
Case Concerning Legality of Use of Force
(Yugoslavia v. Belgium), Request for the Indication
of Provisional Measures, Order of 2 June 1999, ICJ
Reports 1999, p. 132-135:
a) Reservations contrary to the Statute:
-FRY accepts jurisdiction with a reservation ratione
temporis: recognition of compulsory jurisdiction for all
disputes arising from situations or facts subsequent to
the date of signature (25 April 1999)
-Bombardments: begin 24 March1999
“Whereas the fact that the bombings have continued
after 25 April 1999 and that the dispute concerning
them has persisted since that date is not such as to
alter the date on which the dispute arose…” (para. 29)
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
Is the reservation void?
Is the declaration void?
b) Does the ICJ have the power to examine
motu proprio the validity of reservations
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
5. Reciprocity regarding reservations
“Reciprocity in the case of Declarations accepting the
compulsory jurisdiction of the Court enables a Party to
invoke a reservation to that acceptance which it has not
expressed in its own Declaration but which the other
Party has expressed in its Declaration... Reciprocity
enables the State which has made the wider acceptance
of the jurisdiction of the Court to rely upon the
reservations to the acceptance laid down by the other
Party.”
Interhandel Case (Switzerland v. United States), ICJ
Reports 1959, at p. 22
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
6. Interpreting declarations of recognition
Certain Norwegian Loans (France v. Norway),
Spearate Opinion of Lauterpacht J., ICJ Reports
195, at p. 46:
“In accepting the jurisdiction of the Court, Governments
are free to limit its jurisdiction in a drastic manner. As a
result there may be little left in the acceptance which is
subject to the jurisdiction of the Court. This the
Governments, as trustees of the interests entrusted to
them, are fully entitled to do. Their right to append
reservations which are not inconsistent with the Statute
is no longer in question. But the question whether that
little that is left is or is not subject to the jurisdiction of
the Court must be determined by the Court itself.”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
7. Modification and denunciation of declarations
Case Concerning Military and paramilitary activities in and Against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility, ICJ
Reports 1985, at para. 61:
Although the United States retained the right to modify the contents of the
1946 Declaration or to terminate it, a power which is inherent in any
unilateral act of a State, it has, nevertheless assumed an inescapable
obligation towards other states accepting the Optional Clause, by stating
formally and solemnly that any such change should take effect only after
six months have elapsed as from the date of notice.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
Marcelo G. Kohen
5. Reciprocity regarding reservations
Case Concerning Military and paramilitary
activities in and Against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and
Admissibility, ICJ Reports 1985, para. 62:
“The notion of reciprocity is concerned with the scope
and substance of the commitments entered into,
including reservations, and not with the formal
conditions of their creation, duration or extinction. It
appears clearly that reciprocity cannot be invoked in
order to excuse departure from the terms of a State’s
own declaration, whatever its scope, limitations or
conditions.”
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
6. Interpreting declarations of recognition
Fisheries (Spain v. Canada):
46. A declaration of acceptance of the compulsory jurisdiction of the Court, whether
there are specified limits set to that acceptance or not, is a unilateral act of State
sovereignty. At the same time, it establishes a consensual bond and the potential for
a jurisdictional link with the other States which have made declarations pursuant to
Article 36, paragraph 2, of the Statute, and “makes a standing offer to the other
States party to the Statute which have not yet deposited a declaration of acceptance”
(Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, I.C.J. Reports 1998, p. 291, para. 25). The régime relating the
interpretation of declarations made under Article 36 of the Statute is not
identical with that established for the interpretation of treaties by the Vienna
Convention on the Law of Treaties (ibid., p. 293, para. 30). Spain has suggested in
its pleadings that “[t]his does not mean that the legal rules and the art of interpreting
declarations (and reservations) do not coincide with those governing the
interpretation of treaties.” The Court observes that the provisions of that Convention
may only apply analogously to the extent compatible with the sui generis character of
the unilateral acceptance of the Court’s jurisdiction.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011
7. Modification and denunciation of declarations
Nicaragua Case, 1984 (continued)
63. But the right of immediate termination of
declarations with indefinite duration is far from
established. It appears from the requirements of good
faith that they should be treated, by analogy,
according to the law of treaties, which requires a
reasonable time for withdrawal from or termination of
treaties that contain no provision regarding the
duration of their validity.
Prof. Marcelo KOHEN - Judicial Settlement of Interstate Disputes, 2010-2011