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The Problem of the Compulsory Jurisdiction of the World Court

Published online by Cambridge University Press:  20 April 2017

Ruth C. Lawson
Ruth C. Lawson*
Affiliation:
Mount Holyoke College
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Extract

It can be argued that with regard to the paramount problem of the twentieth century, the establishment of effective international institutions for the achievement of peace and justice, the development of perhaps the most far-reaching significance has occurred in the judicial field.

Type
Research Article
Information
American Journal of International Law , Volume 46 , Issue 2 , April 1952 , pp. 219 - 238
Copyright
Copyright © American Society of International Law 1952

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References

1 Among authorities who do so may be cited M. O. Hudson, whose latest annual review of the work of the Court in this Journal, Vol. 46 (1952), pp. 1–39, appears under the title, “The Thirtieth Year of the World Court.”

2 Quoted from the text of the new Statute which is virtually identical with the same paragraph in the old Statute. Further considerations to govern the making of declarations are elaborated in par. 3, Art. 36, of the old Statute and in pars. 3–4 of the same article in the new Statute.

3 Insertion of the words, “in the Charter of the United Nations or,” after “provided for” in par. 1 in 1945 does not add to the jurisdiction of the Court since the Charter, as finally drafted, “specially provided for” no “matters” within the jurisdiction of the Court. The insertion is essentially superfluous in any event, inasmuch as the Charter, a treaty, is covered by the paragraph in its original form. See also UNCIO Docs., Vol. 14, p. 841, and Vol. 13, p. 284, and infra, note 76.

4 The writer is indebted to Ellen Deborah Ellis, Professor Emeritus of Political Science at Mount Holyoke College, for calling her attention to the significance of the first and last paragraphs of Art. 36 in connection with the compulsory jurisdiction of the Court.

5 See Cory, H. M., Compulsory Arbitration of International Disputes (New York, 1932)Google Scholar; and for texts of many, League of Nations, Arbitration and Security—Systematic Survey of the Arbitration Conventions and Treaties of Mutual Security Deposited with the League of Nations (2nd ed., 1927); and United Nations, Systematic Survey of Treaties for the Pacific Settlement of International Disputes 1928–1948 (1948).

6 In such arrangements it generally continued to be necessary for both disputants to act in order to establish the tribunal. See Arts. 53–54 and Chapter 4 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, in Scott, J. B. (ed.), The Hague Court Reports (New York, 1916), pp. lxxiii and lxxv Google Scholar, and in this Journal, Supp., Vol. 2 (1908), pp. 66–67, 76; for excerpts from treaties modeled on these provisions, see United Nations, op. cit., pp. 79–89.

7 It is not without interest that this development in obligatory arbitration has in largest part been made possible by the existence of the World Court. See United Nations, op. cit., pp. 100–103.

8 The precedent of the Central American Court of Justice should not be ignored. See Arts. 1, 2 and 22 of the convention establishing the court, this Journal, Supp., loc. cit., pp. 231–232, 240.

9 This was favored by the Advisory Committee of Jurists in 1920 but rejected by the Council of the League of Nations; see Arts. 33–34 of the draft prepared by the Jurists, Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux … (The Hague, 1920), pp. 679–680. It was also provided in one of the alternate texts of Art. 36 submitted by the United Nations Committee of Jurists to the San Francisco Conference; see UNCIO Docs., Vol. 14, pp. 841–842. Both in the Committee of Jurists and in Committee IV/1 and its Subcommittee D at San Francisco there was majority support for the broadening of the compulsory jurisdiction of the Court by making its acceptance automatic on adherence to the Statute. Opposition of the United States and the Soviet Union was determining, however. UNCIO Docs., Vol. 13, pp. 390–392, 557–559, and Vol. 14, p. 840.

10 Ad hoc agreements may actually be used under such circumstances or attempted with partial success, e.g., the Borchgrave Case, P.C.I.J., Series A/B, No. 72; Colombian-Peruvian Asylum Case, I.C.J. Reports, 1950, pp. 267–268.

11 Procés-Verbaux, pp. 679–680. Baron Descamps, President of the Advisory Committee, at its concluding session interpreted the Committee’s work on this part of the Statute as having been “… directed towards the achievement of … the introduction of a system of compulsory jurisdiction in disputes of a legal nature which should also be applicable to all other cases in so far as they may be covered by general or particular conventions between the parties.” Ibid., p. 754. See also pp. 227, 238, 252–254, 261, 726–727.

12 League of Nations, Permanent Court of International Justice, Documents Concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant … (Geneva, 1921), p. 143.

13 Loc. cit. See also the Subcommittee’s report on this article, ibid., pp. 210–211, and the report of Committee Three to the Assembly, ibid., p. 222. By the time the Statute got before the Assembly, however, M. Hagerup appears to have been the only person to recall the association of compulsory jurisdiction with par. 1 of Art. 36, so great was the disappointment of other protagonists of compulsory jurisdiction at failure to include commitments in the Statute itself. Ibid., p. 250.

14 Procès-Verbaux, pp. 226, 252–253. League of Nations, Permanent Court of International Justice, Documents, pp. 44, 91, 142, 143, 211, 250.

15 Art. 423 of the Treaty of Versailles. For text see The Treaties of Peace 1919–1923 (New York, 1924), Vol. 1, p. 250; also this Journal, Supp., Vol. 13 (1919), p. 373.

16 Precedent for taking jurisdiction in cases instituted by applicants that had not ratified the Protocol of Signature was established in the cases concerning German Interests in Upper Silesia (P.C.I.J., Series A, Nos. 6, 7) and the Chorzów Factory (ibid., No. 9).

17 While the Wimbledon Case (ibid., No. 1) constitutes a precedent for exercise of jurisdiction when the respondent consents to jurisdiction, although it has not accepted the Statute, the Court has had no occasion to consider the applicabilty of the Statute to such a respondent challenging jurisdiction. M. O. Hudson has expressed the opinion that acceptance by the United States of membership in the I.L.O. brought the United States within the scope of the compulsory jurisdiction of the Court. See his article, “The Membership of the United States in the International Labor Organization,” this Journal, Vol. 28 (1934), pp. 669 ffGoogle Scholar. This is of course no longer a practical problem for the United States since acceptance of the new Statute by ratification of the Charter of the United Nations.

18 Cong. Rec., Vol. 78 (1934), p. 11343.

19 M. O. Hudson had referred to it in an address before the American Society of International Law (Proceedings, 1946, p. 12), the text of which was before the Senate subcommittee considering S. Res. 196; see Compulsory Jurisdiction, International Court of Justice, Hearings … (1946), p. 115. Senator Pepper had referred to the fact earlier when the question of ratification of the United Nations Charter was before the Senate, Cong. Rec., Vol. 91 (1945), p. 8076, and Senator Morse had mentioned it when introducing what became S. Res. 196, ibid., p. 11098.

20 See P.C.I.J., Series D, No. 6, Collection of Texts Governing the Jurisdiction of the Court (4th ed., 1932), and Series E, Nos. 8–15.

21 The Committee of Jurists accepted this article without comment on its meaning or significance. UNCIO Docs., Vol. 14, p. 170.

22 The latest complete listing available at the time of writing is in the I.C.J. Yearbook 1950–1951, pp. 227–234.

23 The General Act in both its original and revised versions (Arts. 17 and 19) includes among the disputes which adherents are committed to refer to the Court, the classes of disputes enumerated in Art. 36 of the Statute. The Pact of Bogotá (Art. 31) provides for unilateral reference to the Court of categories of disputes identical with those mentioned in Art. 36, par. 2, of the Statute, and specifically stipulates (Art. 32): “The Court shall have compulsory jurisdiction in accordance with Article 36, paragraph 1, of the said Statute.” United Nations Members that may not have made declarations under Art. 36, par. 2, of the Statute may thus become committed to refer to the Court a wide range of disputes by virtue of adherence to one of these conventions. In this way Ethiopia and Greece have conferred a broad compulsory jurisdiction upon the Court through the General Act. Costa Rica appears to have done so by ratifying the Pact of Bogotá.

24 P.C.I.J., Series A, Nos. 2, 5.

25 Ibid., Nos. 9, 12, 17, 19.

26 P.C.I.J., Series A/B, Nos. 47, 49.

27 I.C.J. Reports, 1950, p. 59.

28 Ibid., 1951, pp. 4–5.

29 P.C.I.J., Series A, No. 2, p. 29.

30 Ibid., p. 38.

31 Ibid., p. 54.

32 Ibid., p. 57.

33 Ibid., p. 60.

34 Ibid., p. 85.

35 P.C.I.J., Series A/B, No. 77, p. 76.

36 Among the exceptions may be cited Beckett, W. E., “Decisions of the Permanent Court of International Justice on Points of Law and of Procedure of General Application,” British Year Book of International Law, Vol. 11 (1930), p. 31 Google Scholar; Fachiri, A. P., The Permanent Court of International Justice (London, 1925), pp. 72, 75 Google Scholar; Glichitch, S., La Juridiction Obligatoire de la Cour Permanente de Justice Internationale (Paris, 1940), pp. 37–38, 41 ff.Google Scholar; Lauterpacht, H., The Development of International Law by the Permanent Court of International Justice (London, 1934), pp. 33–34, 86Google Scholar; Loder, B. C. J., “The Permanent Court of International Justice and Compulsory Jurisdiction,” British Year Book of International Law, Vol. 2 (1921–1922), pp. 8, 24–25Google Scholar; Sohn, L. B., Cases and Other Materials on World Law (Brooklyn, 1950), p. 1035 Google Scholar; Q. Wright, memorandum submitted to the Subcommittee of the Senate Foreign Eolations Committee considering S. Res. 196, in Compulsory Jurisdiction, International Court of Justice, Hearings … (1946), p. 42.

Included in this list also is Hudson, M. O., “The New World Court,” Foreign Affairs, Vol. 24 (1945), pp. 79–80 CrossRefGoogle Scholar. In his International Tribunals (Washington, 1944), on pp. 76, 78–79, it is implied that treaties constitute a basis for the exercise of compulsory jurisdiction by the Court, and on p. 78 it is expressly so stated with regard to the General Act. In Hudson’s treatise, The Permanent Court of International Justice 1920–1942 (New York, 1943), however, although treaties are mentioned as a method of accepting compulsory jurisdiction (p. 449), cases unilaterally brought to the Court pursuant to previous treaties are discussed in Ch. 20 along with cases referred by ad hoc agreement, but are omitted from the discussion in Ch. 21 entitled “Compulsory Jurisdiction Under Article 36.”

Certain observers have mentioned in this connection only treaties containing compromissory clauses providing for the reference of disputes to the Court; among them, P. J. Baker, “The Obligatory Jurisdiction of the Permanent Court of International Justice,” British Year Book of International Law, Vol. 6 (1925), p. 87, note; Goodrich, L. M. and Hambro, E., Charter of the United Nations (Boston, 1949), p. 480 Google Scholar; Jessup, P. C., “Acceptance by the United States of the Optional Clause of the International Court of Justice,” this Journal, Vol. 39 (1945), pp. 745–746 Google Scholar, and “The International Court of Justice of the United Nations,” Foreign Policy Reports, Vol. 21 (1945), p. 157 Google Scholar; Politis, N., La Justice Internationale (Paris, 1924), pp. 239 ff.Google Scholar; and Preuss, L., “The International Court of Justice and the Problem of Compulsory Jurisdiction,” Department of State Bulletin, Vol. 13 (1945), p. 477.Google Scholar

37 Some writers make no associaton of “treaties and conventions” with compulsory jurisdiction, although they refer to treaties as a basis for the Court’s jurisdiction; among them, Kelsen, H., The Law of the United Nations (London, 1950), pp. 519, 521–522Google Scholar; and Lissitzyn, O. J., The International Court of Justice (New York, 1951), pp. 61, 67–68.Google Scholar

Others speak of compulsory jurisdiction exclusively in terms of declarations pursuant to Art. 36, par. 2, of the Statute. This was generally characteristic of the discussion concerning the U. S. declaration of Aug. 14, 1946. See, for example, Compulsory Jurisdiction, International Court of Justice, Hearings before a subcommittee of the Committee on Foreign Belations, United States Senate, 79th Cong., 2nd Sess., on S. Bes. 196 (1946); and Wilcox, F. O., “The United States Accepts Compulsory Jurisdiction,” this Journal, Vol. 40 (1946), pp. 699 ffGoogle Scholar. See also Department of State Publication 3540, Compulsory Jurisdiction of the International Court of Justice (1949), p. 1.

38 UNCIO Docs., Vol. 14, p. 204. It appears from examination of the documents pertinent to the drafting of the new Statute that the sole recognition in 1945 of “treaties and conventions” as a basis for the exercise of compulsory jurisdiction was expressed by Professor Cemil Bilsel of Turkey, ibid., p. 149.

39 Hambro, E., “Some Observations on the Compulsory Jurisdiction of the International Court of Justice,” British Year Book of International Law, Vol. 25 (1948), p. 153 Google Scholar.

40 For the most recent listing available at the time of writing see I.C.J. Yearbook 1950–1951, pp. 192 ff.

41 See I.C.J. Yearbook 1948–1949, pp. 150 ff., 1949–1950, pp. 179 ff., and 1950–1951, pp. 209 ff.

42 This remains true despite the conditions and qualifications attached to most declarations. Since these have received wide attention in the literature on the Court, they are not discussed here except insofar as they may give rise to disputes within the meaning of the last paragraph of Art. 36. See infra, pp. 237–238. See also Hudson, M. O., The Permanent Court of International Justice 1920–1942 (New York, 1943)Google Scholar, Ch. 21, and E. Hambro, op. cit.

43 This alone would seem to make understandable some of the statements concerning the compulsory jurisdiction of the Court made in the Senate hearings and debates on the U. N. Charter in 1945. The then Legal Adviser of the State Department, for example, stated, in a memorandum submitted in answer to questions raised by the late Senator Vandenberg, that: “We would be under no obligation to submit cases to the Court unless we should accept compulsory jurisdiction under the optional clause of Article 36 of the Statute …,” a position he had previously developed at length in his testimony before the Foreign Relations Committee. See Cong. Rec., Vol. 91 (1945), p. 8109, and also The Charter of the United Nations, Hearings before the Committee on Foreign Eelations, United States Senate, 79th Cong., 1st Sess. … (1945), p. 334.

44 This total includes Paraguay, which announced withdrawal of its declaration on May 27, 1938, with doubtful legal effect. The Registrar continues to list Paraguay among states still bound by their declarations. See I.C.J. Yearbook 1950–1951, p. 202.

45 Iran’s denunciation on July 9, 1951, took place under circumstances different from those of Paraguay’s in that the Iranian declaration, filed in 1932, made clear that after an initial period of six years it should continue in effect until notification of abrogation. Ibid., pp. 192 ff.

46 Op. cit., p. 522. This seems to be the sense in which N. Bentwieh and A. Martin deny that the Court has compulsory jurisdiction, in their Commentary on the Charter of the United Nations (London, 1950), pp. 163–164, 167.

47 A compromise worked out in Committee Three of the First Assembly. See League of Nations, Permanent Court of International Justice, Documents, pp. 107, 110.

48 For example, by N. Bentwieh and A. Martin, op. cit., p. 164; Jessup, P. C., “The International Court of Justice of the United Nations,” Foreign Policy Keports, Vol. 21 (1945), pp. 163–164 Google Scholar; O. J. Lissitzyn, op. cit., pp. 62, 64, 65; N. Padelford in “The United Nations Charter,” International Conciliation, No. 413 (1945), pp. 473–475; and Williams, Sir J. F., “The Optional Clause,” British Tear Book of International Law, Vol. 11 (1930), p. 67 Google Scholar.

49 See Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, Cmd. 6531 (London, 1944), p. 16; UNCIO Docs., Vol 13, p. 56; The Charter of the United Nations, Hearings … (1945), p. 334; Compulsory Jurisdiction, International Court of Justice, Hearings … (1946), passim.

50 See examples cited by Hudson, M. O., The Permanent Court of International Justice 1920–1942 (New York, 1943), p. 451 Google Scholar, note 8. See also I.C.J. Yearbook 1946–1947, p. 109; but note Yearbook 1950–1951, p. 42.

51 Among them, A. P. Fachiri, op. cit., pp. 6, 59, 72, 75; H. Kelsen, op. cit., p. 522; Richarda, Sir H. E., “The Jurisdiction of the Permanent Court of International Justice,” British Tear Book of International Law, Vol. 1 (1921–1922), p. 1 Google Scholar.

52 See in particular Proces-Verbaux, pp. 180, 224–228.

53 League of Nations, Permanent Court of International Justice, Documents, p. 210.

54 Art. 33 of their draft, Proeis-Verbaux, p. 679.

55 For discussion see infra, pp. 232–233.

56 In this respect Arts. 32–35 of the Rules of Court adopted on May 6, 1946 (I.C.J., Series D, No. 1, 2nd ed. (1947), pp. 64–66), continue essentially unchanged Arts. 32–35 of the 1936 Rules of Court.

57 I.C.J. Reports, 1948, p. 27; this Journal, Vol. 42 (1948), p. 690. Both the Colombian-Peruvian Asylum Case and the Haya de la Torre Case were initiated by applications; neither was a case of compulsory jurisdiction. I.C.J. Reports, 1949, pp. 225–226; ibid., 1950, p. 78.

58 P.C.I.J., Series A, No. 6, p. 24.

59 Ibid., No. 15, p. 23.

60 I.C.J. Reports, 1948, pp. 27–28.

61 For example, the case concerning the Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53, and that concerning Diversion of the Water of the Meuse, ibid., No. 70.

62 See, however, infra, pp. 236, 237.

63 Quoted supra, pp. 220–221.

64 See Lauterpacht, H., “The British Beservations to the Optional Clause,” Economica, Vol. 10 (1930), p. 154 Google Scholar, and Preuss, L., “Questions Arising from the Connally Amendment,” American Bar Association Journal, Vol. 32 (1946), p. 662 Google Scholar.

65 Provision for the determination of the extent of their jurisdiction by tribunals that might be established under the 1899 and 1907 Hague Conventions was without comparable significance in the evolution of the international judicial process, inasmuch as under these conventions ad hoo agreement of the disputants was necessary in order to constitute tribunals.

66 See Procès-Verbaux, p. 618, and also M. O. Hudson, International Tribunals (Washington, 1944), p. 72.

67 P.C.I.J., Series A/B, No. 52.

68 Procès-Verhaux, p. 619.

69 P.C.I.J., Series A, Nos. 2, 5.

70 Ibid., Nos. 9, 12, 17, 19.

71 P.C.I.J., Series A/B, Nos. 47, 49.

72 P.C.I.J., Series A, No. 9, p. 32.

73 P.C.I.J., Series A/B, No. 77. No final decision was given in this case as proceedings were discontinued on request of the applicant in 1945.

74 I.C.J. Reports, 1951, p. 89, and this Journal, Vol. 45 (1951), p. 789; I.C.J. Reports, 1951, p. 11.

75 The U. K. Government apparently made the same assumption. See I.C.J. Pleadings, Corfu Channel Case, Vol. 3, pp. 54–55.

76 Supra, p. 233. Having established jurisdiction on consent of the parties, the Court did not give an opinion on the merits of the U. K. claim to establish compulsory jurisdiction on the basis of Art. 36, par. 1, of the Statute, together with Art. 36, par. 2, and Art. 25 of the U. N. Charter. In a separate opinion seven members of the Court regretted the failure of the Court to do so, adding that to them the British argument did not carry conviction. I.C.J. Reports, 1948, p. 31.

77 P.C.I.J., Series A/B, No. 77.

78 P.C.I.J., Series A, No. 11.

79 P.C.I.J., Series A/B, No. 66.

80 Ibid., No. 74.

81 A suggestion to this effect was rejected by Subcommittee D of Committee IV/1 at San Francisco. UNCIO Docs., Vol. 13, pp. 558–559.

82 Italics added. For text of the U. S. declaration, see Department of State Bulletin, Vol. 15 (1946), p. 452. The amendment had failed to win acceptance in either the Committee on Foreign Belations or the subcommittee that had considered S. Res. 196, but was introduced and approved in the course of a Senate debate in general more fervent than clear. Cong. Rec., Vol. 92 (1946), pp. 10613 ff. and 10683 ff.

83 I.C.J. Yearbook 1950–1951, pp. 197, 200, 201.

84 Professor Lauterpacht at the time considered this to be essentially the effect of the British reservation to the Optional Clause, and its legality doubtful, therefore, under the Statute. See his article, “The British Beservations to the Optional Clause,” Economica, Vol. 10 (1930), pp. 149, 154Google Scholar.

85 That it is inconsistent with Art. 36, par. 6, of the Statute has been pointed out by former Senator E. D. Thomas, Cong. Rec., Vol. 92 (1946), p. 10626, and by Preuss, L., “Questions Arising from the Connally Amendment,” American Bar Association Journal, Vol. 32 (1946), p. 662 Google Scholar. On the other hand, M. O. Hudson, “The World Court: America’s Declaration Accepting Jurisdiction Baises Questions,” ibid., pp. 835–836, and H. Kelsen, op. cit., p. 529, appear less inclined to challenge its legality. A clear statement on the effect of the amendment is that of the American Bar Association’s Committee on Peace and Law through the United Nations, American Bar Association Journal, Vol. 33 (1947), p. 432, on the basis of which the Association has urged modification of this proviso in the U. S. declaration.

86 This can also be said concerning the effect of another reservation in the U. S. declaration, if it should lead to jurisdictional disputes. The reservation stipulating the conditions for including disputes arising under multilateral treaties within the Court’s compulsory jurisdiction is far from clear. It appears, however, that it also may assert for the United States a preferred position of questionable validity in view of prior commitments in the Statute.