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Compromissory Clauses and the Jurisdiction of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
Jonathan I. Charney*
Affiliation:
Vanderbilt University
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Extract

Many governments are reluctant to submit disputes voluntarily to the International Court of Justice for binding adjudication. Only a few disputes are brought to the Court with the current agreement of all the parties. When that happens, no matter what the technical basis for the Court’s jurisdiction may be—a compromis, compulsory jurisdiction, or a compromissory clause in a substantive international agreement or an optional protocol—the Court’s jurisdiction is unlikely to be questioned. When the respondent state does not wish the dispute to be submitted to the Court, however, the applicant state must compel adjudication by relying on jurisdiction founded upon the respondent state’s consent given in the past. Consent may be found in declarations accepting the compulsory jurisdiction of the Court provided for in Article 36(2) of its Statute. Alternatively, such consent may be found under Articles 36(1) or 37, which permit jurisdiction to be based on compromissory clauses.

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 4 , October 1987 , pp. 855 - 887
Copyright
Copyright © American Society of International Law 1987

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Footnotes

*

Research for this article was supported by a grant from the Vanderbilt University School of Law

References

1 See Gross, , Compulsory Jurisdiction under the Optional Clause: History and Practice, in The International Court of Justice at a Crossroads 19 (Damrosch, L. ed. 1987)Google Scholar [hereinafter ICJ at a Crossroads].

2 See id.; and D’Amato, , Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court, 79 AJIL 385 (1985)CrossRefGoogle Scholar.

3 Morrison, , Treaties as a Source of Jurisdiction, Especially in U.S. Practice, in ICJ at a Crossroads, supra note 1, at 58Google Scholar.

4 See Sohn, , Settlement of Disputes Relating to the Interpretation and Application of Treaties, 150 Recueil des Cours 195, 271 (1976 II)Google Scholar. Sohn wrote:

Of the 4,834 treaties registered with the League of Nations between 1920 and 1946 and the 12,500 registered with the United Nations between 1946 and the present, some 4,000 include a special compromissory clause providing for the pacific settlement of disputes relating to the interpretation and application of the treaty itself.

Id. at 259. This number has certainly increased in the intervening 11 years. Nearly 250 separate bilateral and multilateral agreements contain compromissory clauses providing for ICJ jurisdiction. 1984–1985 ICJ Y.B. 102–18.

5 Senate Comm. on Foreign Relations, International Convention on the Prevention and Punishment of the Crime of Genocide, S. Exec. Rep. No. 50, 98th Cong., 2d Sess. 37–41 (1984).

6 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Provisional Measures, 1984 ICJ Rep. 169 (Order of May 10) [hereinafter Nicaragua Provisional Measures]; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26) [hereinafter Nicaragua Jurisdiction]; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27) [hereinafter Nicaragua Merits].

7 Nicaragua Jurisdiction, Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 558, 628–37. Judge Ruda dissented from the finding of jurisdiction under the FCN Treaty on the narrow ground that Nicaragua had failed to exhaust efforts to obtain a diplomatic settlement of the dispute as required by the compromissory clause. Separate Opinion of Judge Ruda, 1984 ICJ Rep. at 452, 452–54.

8 Moore, , The Secret War in Central America and the Future of World Order, 80 AJIL 43, 94 (1986)CrossRefGoogle Scholar; Reisman, , Has the International Court Exceeded its Jurisdiction?, 80 AJIL 128, 130–31 (1986)Google Scholar. See also Correspondence from Professors D’Amato, Reisman, 80 AJIL 942–43 (1986)Google Scholar; Kirgis, Nicaragua v. United States as a Precedent, 79 AJIL 652, 655–56 (1985).

9 The distinction between an objection based on jurisdiction and one based on admissibility is not always clear. See Shihata, I., The Power of the International Court to Determine its Own Jurisdiction 107–12 (1965)Google Scholar. Generally speaking, an objection based on admissibility “does not question the existence of the tribunal’s power but challenges the right of the applicant to invoke it in the circumstances of the case.” Id. at 107.

10 The FCN Treaty between the United States and Nicaragua contained such a requirement: “Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means.” Art. XXIV, para. 2, Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, U.S.-Nicar., 367 UNTS 3, 32, 9 UST 449, TIAS No. 4024.

In accordance with previous decisions, the ICJ in this case did not require proof that actual negotiations had been conducted and that they had been exhausted. Knowledge at the commencement of the suit that such negotiations were futile was deemed to be sufficient. Nicaragua Jurisdiction, 1984 ICJ Rep. at 428–29. In previous cases, the Court had suggested that some form of communication would be expected, regardless of the forum or its brevity, so long as a deadlock becomes apparent. See Mavrommatis Palestine Concessions (Greece v. Great Britain), 1924 PCIJ (ser. A) No. 2, at 13 (Judgment of Aug. 30); South West Africa Cases (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 344–46 (Judgment of Dec. 21) [hereinafter South West Africa Preliminary]; Separate Opinion of Judge Jessup, id. at 387, 435; United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 27 (Judgment of May 24) [hereinafter Tehran Judgment]; and Nicaragua Jurisdiction, Separate Opinion of Judge Jennings, 1984 ICJ Rep. at 533, 555–57.

11 It is now accepted that Articles 31 and 32 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc.A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), codify the treaty interpretation rules of customary international law.

12 In some cases the context of the compromissory clause, the preparatory materials and the intention of the parties can profitably be examined. The Factory at Chorzow (Claim for Indemnity) (Jurisdiction), 1927 PCIJ (ser. A) No. 9, at 32 (Judgment of July 26).

In Fisheries Jurisdiction the ICJ relied on the history of the negotiations to determine the scope of its jurisdiction. Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 13, and 49, 58 (Judgments of Feb. 2).

In Anglo-Iranian Oil Co. the Court refused to limit itself to the text of the declaration accepting the compulsory jurisdiction of the Court under Article 36(2), but went to the context of the consent, notwithstanding the clarity of the consent. Anglo-Iranian Oil Co. case (UK v. Iran) (Jurisdiction), 1952 ICJ Rep. 93, 104 (Judgment of July 22) [hereinafter Anglo–Iranian Jurisdiction]. See also Separate Opinion of Judge Sir Percy Spender, Case concerning the Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 65, 73, 90 (Judgment of Dec. 2) [hereinafter Northern Cameroons Preliminary]; Dissenting Opinion of Judge Armand-Ugon, Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Preliminary Objections, 1964 ICJ Rep. 6, 116, 159, 161 (Judgment of July 24) [hereinafter Barcelona Traction Preliminary]; Separate Opinion of Judge Onyeama, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 ICJ Rep. 46, 86 (Judgment of Aug. 8) [hereinafter ICAO Appeal]; Nicaragua Merits, Dissenting Opinion of Judge Sir Robert Jennings, 1986 ICJ Rep. at 528, 539.

In most cases, however, the compromissory clause is included without any specific agreement about its implications. Rather, there is a lack of intention or agreement of the parties with respect to its scope. See Lauterpacht, , Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 Brit. Y.B. Int’l L. 48, 52 (1949)Google Scholar. At best, one might take the questionable teleological approach to the clause, “by reference to the paramount principle of the completeness and the rational development of the law and of the requirements of justice in the light of the purpose of the treaty viewed as a whole.” Id. at 81.

Fitzmaurice argued that the United Kingdom’s intent regarding the compromissory clauses of the FCN treaties involved in the Ambatielos case was to consent to the submission of commercial disputes only. Fitzmaurice, , The Law and Procedure of the International Court of Justice, 1951–4; Questions of Jurisdiction, Competence and Procedure, 34 Brit. Y.B. Int’l L. 1, 93–94 (1958)Google Scholar. But the Court did not entertain that view. Ambatielos case (Greece v. UK) (merits, obligation to arbitrate), 1953 ICJ Rep. 10 (Judgment of May 19) [hereinafter Ambatielos Merits].

13 In Mavrommatis Palestine Concessions, 1924 PCIJ (ser. A) No. 2, at 11, the PCIJ wrote: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” This question was first addressed by the ICJ in 1950:

Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non–existence.. . . There has thus arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non–performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen.

Interpretation of Peace Treaties, 1950 ICJ Rep. 65, 74 (Advisory Opinion of Mar. 30).

In 1962 the Court held that there was a dispute between Ethiopia/Liberia and South Africa because the members of the League of Nations had “a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members.” South West Africa Preliminary, 1962 ICJ Rep. at 343. Of course, 4 years later the Court may have undermined the authority of this Judgment when it found that the applicant states had no standing. South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 17–30, 39 (Judgment of July 18) [hereinafter South West Africa Second Phase].

But in an intervening case, the Court did require “a conflict of legal interests between the parties.” Northern Cameroons Preliminary, 1963 ICJ Rep. at 33–34. See also Separate Opinion of Judge Sir Gerald Fitzmaurice, id. at 86, 110; and Separate Opinion of Judge Morelli, 1963 ICJ Rep. at 131, 145–46, 149. The formulation used in the Northern Cameroons Judgment on Preliminary Objections was quoted with approval in Fisheries Jurisdiction (UK v. Ice.), Merits, 1974 ICJ Rep. 3, 19–20 (Judgment of July 25).

14 In Northern Cameroons, however, the Court did determine that the dispute was not appropriate for judicial determination. Northern Cameroons Preliminary, 1963 ICJ Rep. at 33–34.

15 See Charney, , Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance, in ICJ at a Crossroads, supra note 1, at 288, 291–302Google Scholar.

16 The United States vetoed an effort to obtain United Nations Security Council support for the Court’s Judgment on the merits. UN Doc. S/PV.2703 (1986); UN Doc. S/PV.2704 (1986).

17 In theory, at the phase of preliminary objections the Court must avoid deciding the merits of the case. For a definition of the merits, see Fitzmaurice, supra note 12, at 22.

18 Prior to the 1972 and 1978 amendments to its Rules, the Court clearly claimed discretion to decide whether an issue of jurisdiction sufficiently involved the merits to be deferred until the merits phase. The current Rule 79(7) makes it appear that if the jurisdictional issue “does not possess, in the circumstances of the case, an exclusively preliminary character,” the Court is required to defer it until the merits phase. Rules of Court, ICJ Acts & Docs., No. 4 (1978)(emphasis added).

The Court’s discretion to merge the merits with the jurisdictional question is perhaps still permitted by Article 79(6) of the 1978 Rules, which states: “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.” Id.

The new Rules seem to have facilitated access to the merits phase by an applicant state and, in effect, may have rejected a high threshold. This conclusion, however, is not free from doubt. S.Rosenne, Procedure in the International Court 164–67 (1983).

The Court has always sought to avoid prejudicing the merits at the phase of preliminary objections. Deferral of issues of jurisdiction was possible if they were merged with the merits. However, the obligation to defer was discretionary. This was certainly true at the PCIJ. See Pajzs, Csáky, Esterházy case (Hung. v. Yugo.) (Preliminary Objection), 1936 PCIJ (ser. A/B) No. 66, at 4, 9 (Order of May 23); Losinger & Co. case (Switz. v. Yugo.) (Preliminary Objection),1936 PCIJ (ser. A/B) No. 67, at 15, 23–24 (Order of June 27).

This discretion was most clearly stated in the Panevezys-Saldutiskis Railway case (Estonia v. Lithuania) (Preliminary Objections), 1938 PCIJ (ser. A/B) No. 75, at 53 (Order of June 30): “the Court may order the joinder of preliminary objections to the merits, whenever the interests of the good administration of justice require it.” Id. at 56.

The ICJ took a similar position in Barcelona Traction Preliminary, 1964 ICJ Rep. at 43–44.The Court found that the question whether the state of nationality of corporate shareholders has standing to sue is sufficiently bound up in the substance of the rights and duties underinternational law that the objection should be joined with the merits. Id. at 44–46. See also Ambatielos Merits, 1953 ICJ Rep. at 16–17.

But in the Nicaragua case the Court stated the rule in absolute, nondiscretionary terms and decided that it must avoid any question that might touch at all on the merits. It would avoid “not only all expressions of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits.” Nicaragua Jurisdiction, 1984 ICJ Rep. at 397. Because the Court would have to determine which states might be “affected” by the decision on the merits in this case, it found that the objection to jurisdiction based on the multilateral treaty reservation to the U.S. Declaration accepting ICJ compulsory jurisdiction “does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984.” Id.at 425–26. See also Nicaragua Merits, 1986 ICJ Rep. at 29, 30, 37, 38.

19 The Court has been sensitive to the fact that the purpose of the preliminary objection is to deny the applicant the opportunity to present the merits of its claim if jurisdiction is absent.

Barcelona Traction Preliminary, 1964 ICJ Rep. at 44. See also Dissenting Opinion of Judge Armand-Ugon, id. at 164–66.

Notwithstanding the Court’s deferral of jurisdictional issues to the merits in the Nicaragua case, it wrote: “the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case.” Nicaragua Jurisdiction, 1984 ICJ Rep. at 426–27.

20 Nicaragua Jurisdiction, Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 628–37; and Reisman, supra note 8,

21 Another aspect of the Nicaragua case provides a relevant illustration of this problem. Early in the case, El Salvador sought to intervene. The Court considered El Salvador’s claim summarily and concluded that the Declaration was inadmissible because it related to the construction of conventions concerning the merits of the case and not to the pending phase of preliminary objections. It left open the possibility for El Salvador to seek intervention again at the merits phase. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Order of Oct. 4). See Chinkin, , Third-Party Intervention before the International Court of Justice, 80 AJIL 495, 512–13 (1986)Google Scholar.

22 United Nations Charter arts. 33(1), 36(3), and 92–96, 59 Stat. 1031 (1945), TS No.993; Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, Annex to GA Res. 2625, 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970), reprinted in 65 AJIL 243, 247 (1971). The policies expressed by these provisions can be construed to support the view that the scope of consent to jurisdiction should be interpreted liberally or, perhaps, neutrally. They do not support the view that they should be interpreted narrowly or restrictively.

23 ICJ Acts & Docs., supra note 18. Rules 73–78 of the Court set forth the procedure to be followed in the case of a request for an indication of provisional measures of protection. Id.

24 Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3, 14 (Order of Sept. 11).

25 Separate Opinion of Judge Lachs, Aegean Sea Continental Shelf, id. at 20; Separate Opinion of Judge Ruda, 1976 ICJ Rep. at 24; Separate Opinion of Judge Mosler, 1976 ICJ Rep. at 25; Separate Opinion of judge Tarazi, 1976 ICJ Rep. at 31, 31–32; Dissenting Opinion of Judge ad hoc Stassinopoulos, 1976 ICJ Rep. at 35, 39–40. See Separate Opinion of judge Sir Hersch Lauterpacht, Interhandel Case (Switz. v. U.S.) (interim measures of protection), 1957 ICJ Rep. 105, 117, 118–19 (Order of Oct. 24); and Gross, , The Dispute Between Greece and Turkey Concerning the Continental Shelf in the Aegean, 71 AJIL 31, 48–54 (1977)Google Scholar.

26 Dissenting Opinions of judge Padilla Nervo, Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Interim Protection, 1972 ICJ Rep. 12, 20, 21–22, and 30, 37, 38–39 (Orders of Aug. 17) [hereinafter Fisheries Jurisdiction Interim Protection]. He quotes from the Dissenting Opinion of Judges Winarski and Badawi Pasha in the Anglo-Iranian Oil Co. Case (UK/Iran), Request for Indication of Interim Measures of Protection, 1951 ICJ Rep. 89, 96, 96–97 (Order of July5) [hereinafter Anglo-Iranian Request].

27 See supra note 26.

28 Anglo-Iranian Request, 1951 ICJ Rep. at 93. The dissents argued that this rule was too liberal: Dissenting Opinion of Judges Winarski and Badawi Pasha, id. at 96–98.

29 Anglo-Iranian Jurisdiction, 1952 ICJ Rep. at 113.

30 1953 ICJ Pleadings (Ambatielos case) 377, 378, 388 (Oral Argument of Mr. Fitzmaurice, Mar. 25, 1953).

31 Rosenne, S., The Law and Practice of the International Court 354–55 (1985)Google Scholar.

32 Fisheries Jurisdiction Interim Protection, 1972 ICJ Rep. 12 and 30.

33 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Interim Protection, 1973 ICJ Rep. 99 and 135 (Orders of June 22) [hereinafter Nuclear Tests Interim Protection].

34 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7 (Order of Dec. 15) [hereinafter Tehran Provisional Measures].

35 Nicaragua Provisional Measures, 1984 ICJ Rep. 169.

36 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253 and 457 (Judgments of Dec. 20).

37 Fisheries Jurisdiction Interim Protection, 1972 ICJ Rep. at 15–16 and 33.

38 Nuclear Tests Interim Protection, 1973 ICJ Rep. at 103 and 139.

39 Tehran Provisional Measures, 1979 ICJ Rep. at 13.

40 Id.

41 Id. at 13–14.

42 Nicaragua Provisional Measures, 1984 ICJ Rep. at 179.

43 This approach is emphasized further in the Order where the Court concluded, not that a prima facie showing had been made, but that something less was present: that the two declarations “appear to afford a basis on which the jurisdiction of the Court might be founded.” Id. at180 (emphasis added). Such a finding is less than a conclusion that on its face the allegation of jurisdiction appears to be sound. This test suggests that the mere possibility of success on the jurisdictional argument would be sufficient to justify the Court’s consideration of a request for the indication of provisional measures.

Even the Member of the Court who issued the strongest dissents, Judge Schwebel, agreed with the Court’s conclusion that there was jurisdiction to indicate provisional measures. He did not necessarily endorse the low threshold identified above. He found that the applicant had met the burden of making the necessary affirmative showing, but even he admitted that the burden was low indeed:

Thus the Court has built a body of precedent which affords it the authority to indicate provisional measures if the jurisdiction which has been pleaded appears, prima facie, to afford a basis on which the Court’s jurisdiction might be founded. . . . The nub of the matter appears to be that, while in deciding whether it has jurisdiction on the merits, the Court gives the defendant the benefit of the doubt, in deciding whether it has jurisdiction to indicate provisional measures, the Court gives the applicant the benefit of the doubt. In the present case, the Court, in my view, has given the applicant the benefit of a great many doubts.

Nicaragua Provisional Measures, Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 190, 206–07 (emphasis added). See also id. at 204.

44 See ICJ Statute, supra note 23, Art. 41; Rules of Court, supra note 18, Art. 74(4); T. O. Elias, The International Court of Justice and Some Contemporary Problems 67–83 (1983); H. Thirlway, Non-Appearance Before the International Court of Justice 83–96 (1985); S. Rosenne, supra note 31, at 141–42.

45 For example, in the Nicaragua case the Court called upon both parties to cease their illegal behavior. Nicaragua Provisional Measures, 1984 ICJ Rep. at 187. The same approach wastaken in Frontier Dispute (Burkina Faso v. Mali), Provisional Measures, 1986 ICJ Rep. 3(Order of Jan. 10). Somewhat less neutrality was found in the Hostages case, but it may have presented a clearer case on the jurisdiction and the merits. See Oxman, , Jurisdiction and the Power to Indicate Provisional Measures, in ICJ at a Crossroads, supra note 1, at 323Google Scholar.

46 Western Sahara, 1975 ICJ Rep. 12, 23–29 (Advisory Opinion of Oct. 16); and Status of Eastern Carelia, 1923 PCIJ (ser. B) No. 5, at 27–29 (July 23).

47 See also Reisman, supra note 8, at 130–31; Moore, supra note 8, at 93–94.

48 Writing in 1949, Lauterpacht was unable to find any case of the International Court inwhich the rule of restrictive interpretation had determined the issue. Lauterpacht, supra note12, at 61–62. He found the rule of restrictive interpretation of questionable value. Id. at 65. By1958, he could only find the rule stated as dicta in two cases. Lauterpacht, H., The Development of International Law by the International Court 339–41 (1958)Google Scholar. Writing in the same year, Fitzmaurice reviewed all of the extant cases of the ICJ on this question and found no adequate guide to the Court’s approach. Fitzmaurice, supra note 12, at 90–91. Sohn reached a similar conclusion in 1976. He found that support for the rule in the PCIJ was absent, but that in the ICJ the record was unclear. Sohn, supra note 4, at 256–57. Rosenne also has not put much stock in the rule. S. Rosenne, supra note 31, at 406–07. Rosenne has pointed out that the PCIJ presumed the retroactivity of compromissory clauses unless they were restricted. Id. at 483–89. See also Brownlie, I., Principles of Public International Law 624 (3d ed. 1979)Google Scholar.

A more sympathetic view of the rule is found in Malloy, , Objections to Adjudication in Contentious Cases Before the International Court of Justice, 2 Brooklyn J. Int’l. 262, 263 (1979)Google Scholar. See also I. Shihata, supra note 9, at 188–206.

The Court has avoided general pronouncements on the rule. Rather, statements have been found in separate and dissenting opinions. For supportive statements, see, e.g., Dissenting Opinion of Judge Armand-Ugon, Barcelona Traction Preliminary, 1964 ICJ Rep. at 147–48,159; and Dissenting Opinion of Judge Nagendra Singh, ICAO Appeal, 1972 ICJ Rep. at 164,165. But there is also support for a rule that the provision is to be interpreted in accordance with the ordinary rules of treaty interpretation. See, e.g., Separate Opinion of Judge de Castro, ICAO Appeal, 1972 ICJ Rep. at 116, 127; Separate Opinion of judge Bustamante, South West Africa Preliminary, 1962 ICJ Rep. at 349, 381; Separate Opinion of Sir Louis Mbanefo, South West Africa Preliminary, 1962 ICJ Rep. at 437, 446–48; Separate Opinion of judge Dillard, ICAO Appeal, 1972 ICJ Rep. at 92, 106–07.

The apparent purpose of the rule of restrictive interpretation as applied to consent to jurisdiction is to protect the integrity of the Court in not adjudicating matters not actually the subject of the consent of the states parties. Barcelona Traction Preliminary, Dissenting Opinion of judge Armand-Ugon, 1964 ICJ Rep. at 147–48; and Nicaragua Merits, Dissenting Opinion of judge Oda, 1986 ICJ Rep. at 212, 237–38.

49 Supra note 11.

50 1924 PCIJ (ser. A) No. 2, at 15–29. For the early history of this issue, see Sohn, supra note 4, at 228–34.

51 Mandate for Palestine, July 24, 1922, Art. 26, reprinted in 1 Hudson, M. O., International Legislation 109, 119 (1931)Google Scholar.

52 1924 PCIJ (ser. A) No. 2, at 26–29. See British Preliminary Objections to the Jurisdiction of the Court, 1924 PCIJ (ser. C) No. 5–1, at 439–40 (June 16). See also Sohn, supra note 4, at 245–46.

53 1924 PCIJ (ser. A) No. 2, at 25–29. Judge Dillard was in accord with this interpretation of the case. Separate Opinion of judge Dillard, ICAO Appeal, 1972 ICJ Rep. at 106–07.

54 Mavrommatis Jerusalem Concessions (Greece v. Great Britain), 1925 PCIJ (ser. A) No. 5, at 6–51 (Judgment of Mar. 26). No compensation was awarded on the ground that no loss to Mavrommatis had been proven. Id. at 51.

55 Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), 1925 PCIJ (ser. A) No. 6, at 4–27 (Judgment of Aug. 25).

56 Id.

57 Certain German Interests in Polish Upper Silesia (Ger. v. Pol.) (The Merits), 1926 PCIJ (ser. A) No. 7, at 4–82 (Judgment of May 25).

58 The Factory at Chorzow, 1927 PCIJ (ser. A) No. 9.

59 Id. at 25.

60 See Sohn, supra note 4, at 247–48.

61 The Factory at Chorzów (The Merits), 1928 PCIJ (ser. A) No. 17, at 4, 63–64 (Judgment of Sept. 13).

62 1950 ICJ Rep. at 73.

63 Id. at 74, 75. Judge Dillard was in accord with this interpretation of the case. Separate Opinion of Judge Dillard, ICAO Appeal, 1972 ICJ Rep. at 106–07. See Separate Opinion of Judge Jiménez de Aréchaga, ICAO Appeal, 1972 ICJ Rep. at 140.

64 Interpretation of Peace Treaties (second phase), 1950 ICJ Rep. 221, 227 (Advisory Opinion of July 18). See Dissenting Opinion of Judge Nagendra Singh, ICAO Appeal, 1972 ICJ Rep. at 164.

65 1950 ICJ Rep. at 227–30.

66 Anglo-Iranian Request, 1951 ICJ Rep. at 93. See discussion of Anglo-Iranian Oil Co., text at notes 28–29 supra.

67 Anglo-Iranian Jurisdiction, 1952 ICJ Rep. at 115.

68 Id. at 103.

69 Id. at 107.

70 See Individual Opinion of President McNair and dissents of Judges Hackworth, Read and Levi Carneiro, respectively, id. at 116, 136, 142 and 151.

71 1952 ICJ Rep. at 109.

72 Id. Dissent of Judge Hackworth, id. at 137; Dissenting Opinion of Judge Read, 1952 ICJREP. at 144–47; Dissenting Opinion of Judge Levi Carneiro, 1952 ICJ Rep. at 156–58, and170–71. Judge Read argued that the Court had never utilized a restrictive rule for interpreting declarations. Statements in prior cases were “obiter dicta.” The rule, rather, was one of liberal interpretation. 1952 ICJ Rep. at 143.

73 See discussion of the Mavrommatis case, text at notes 50–54 supra.

74 See discussion of the Ambatielos case, text at notes 75–84 infra.

75 Ambatielos case (Greece v. UK) (jurisdiction), 1952 ICJ Rep. 28 (Judgment of July 1) [hereinafter Ambatielos jurisdiction]; Ambatielos Merits, 1953 ICJ Rep. 10.

76 Ambatielos jurisdiction, 1952 ICJ Rep. at 34. See Oral Argument of Mr. Fitzmaurice, supra note 30, at 397–98.

77 1952 ICJ Rep. at 35.

78 Treaty of Commerce and Navigation, July 16, 1926, Greece–Great Britain. See Application Instituting Proceedings and Pleadings, 1953 ICJ Pleadings, supra note 30, at 8, 10–11.

79 1952 ICJ Rep. at 36. Declaration Accompanying the Greco–British Treaty of Commerce and Navigation of July 16, 1926. See Application Instituting Proceedings and Pleadings, 1953 ICJ Pleadings, supra note 30, at 11.

80 1952 ICJ Rep. at 36. Treaty of Commerce and Navigation, July 16, 1926, Greece-Great Britain, Art. 29. See Application Instituting Proceedings and Pleadings, 1953 ICJ Pleadings, supra note 30, at 11.

81 Article 37 of the UN Charter caused the ICJ to be substituted for the PCIJ.

82 Ambatielos Preliminary, 1952 ICJ Rep. at 46.

83 Ambatielos Merits, 1953 ICJ Rep. 10.

84 The Ambatielos Claim (Greece, UK), 12 R. Int’l Arb. Awards 83, 91–124 (1956).

85 Fitzmaurice, supra note 12, at 46.

86 Id. at 47.

87 Id.

88 Id.

89 It said, “It is not enough for the claimant Government to establish a remote connection between the facts of the claim and the Treaty of 1886.” Id. at 46.

90 Id.

91 Ambatielos Merits, 1953 ICJ Rep. at 18. This statement was preceded by the following:

The Court must determine . . . whether the arguments advanced by the Helenic [sic] Government in respect of the treaty provisions on which the Ambatielos claim is said to be based, are of a sufficiently plausible character to warrant a conclusion that the claim is based on the Treaty. It is not enough for the claimant Government to establish a remote connection between the facts of the claim and the Treaty of 1886. On the other hand, it is not necessary for that Government to show, for present purposes, that an alleged treaty violation has an unassailable legal basis.

Id. See Nicaragua Jurisdiction, Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 633.

92 1953 ICJ Rep. at 22. Fitzmaurice, supra note 12, at 46–53.

93 Dissenting Opinion by Arnold, McNair Sir, President, and Judges Basdevant, Klaestad, and Read, 1953 ICJ Rep. at 25, 29–31Google Scholar.

94 South West Africa Preliminary, 1962 ICJ Rep. 319; South West Africa Second Phase, 1966 ICJ Rep. 6.

95 Mandate for German South-West Africa, Dec. 17, 1920, Art. 7, para. 2, reprinted in 1 M.O. Hudson, supra note 51, at 57, 60. South West Africa Preliminary, 1962 ICJ Rep. at 335:“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the [PCIJ] . . . .”

96 1962 ICJ Rep. at 330–32. The Court found jurisdiction on the basis of its broad interpretation of “treaty” and “convention” as including the “Mandate.” It also found that a dispute between South Africa (the Mandatory) and two states that were members of the League until its demise, but were not members at the time of the litigation (Ethiopia and Liberia), was a “dispute . . . between the Mandatory and another Member of the League” covered by the compromissory clause. Id. at 335–42. Thus, it wrote:

This contention [limiting jurisdiction only to League members] is claimed to be based upon the natural and ordinary meaning of the words employed in the provision. But this rule of interpretation is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it.

Id. at 33. The subsequent Judgment in the case casts doubt upon these conclusions. South West

Africa Second Phase, 1966 ICJ Rep. 6.

97 South West Africa Preliminary, 1962 ICJ Rep. at 343. The issue of the burden necessary to be carried was raised in the Joint Dissenting Opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice, id. at 465, 473–74. They argued:

[Q]uite apart from any question of onus of proof, a duty lies upon the Court, before it may assume jurisdiction, to be conclusively satisfied—satisfied beyond a reasonable doubt—that jurisdiction does exist. If a reasonable doubt . . . is revealed as existing, then, because of the principle of consent as the indispensable foundation of international jurisdiction, the conclusion would have to be reached that jurisdiction is not established.

Jessup argued that the Court has jurisdiction over a dispute if the applicant alleges a claim in which it relies on a treaty with a compromissory clause. Even if the respondent claims that the treaty is no longer in force, there is jurisdiction. The question of the status of the treaty, according to Jessup, “is a question for the merits and not a question to be settled on a plea to the jurisdiction.” He continued: “It may be possible to imagine a case where the allegation of a legal right was so obviously absurd and frivolous that the Court would dismiss the application on a plea to the jurisdiction, but such a situation would be rare.” Separate Opinion of Judge Jessup, 1962 ICJ Rep. at 423–24.

98 1966 ICJ Rep. at 29–34. By that time, the applicants had obtained a full hearing on the merits of their claim and had reaped many of the benefits of adjudication before the ICJ. The continuing attention given to this case, up to the present, stands as persuasive testimony to these observations. See The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations (Dugard, J. ed. 1973)CrossRefGoogle Scholar. See also D’Amato, A., International Law: Process and Prospect 176–87 (1987)Google Scholar; Dugard, J., The South-West Africa/Namibia Dispute (1973)CrossRefGoogle Scholar; and Falk, R., Reviving the World Court 100–36 (1986)Google Scholar.

99 See supra note 98.

100 Barcelona Traction Preliminary, 1964 ICJ Rep. 6.

101 Id. at 45.

Where, in a case such as the present one, a government is not merely purporting to exercise diplomatic protection, but to make a claim before an international tribunal, it necessarily invokes rights which, so it contends, are conferred on it in respect of its nationals by the rules of international law concerning the treatment of foreigners. Hence the question whether international law does or does not confer those rights is of the essence of the matter. In short, a finding by the Court that the Applicant Government has no jus standi, would be tantamount to a finding that these rights did not exist, and that the claim was, for that reason, not well-founded in substance

102 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), 1970 ICJ Rep. 3 (Judgment of Feb. 5).

103 Northern Cameroons Preliminary, 1963 ICJ Rep. at 33, 34, 38.

104 See id. at 29, 37–38.

105 1972 ICJ Rep. 46.

106 Convention on International Civil Aviation, Art. 84, done Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295. See ICAO Appeal, 1972 ICJ Rep. at 55.

107 1972 ICJ Rep. at 61.

108 Id. at 65–66.

109 Id. at 64.

110 Id. at 66–69.

111 Separate Opinion of Judge Dillard, id. at 106–07.

112 Separate Opinion of Judge de Castro, 1972 ICJ Rep. at 125:

Interpretation is a general function and one to be carried out as a preliminary step. It signifies the search for and ascertainment of the true meaning of the Convention and the Agreement, with reference to any action, any situation or any fact. For example, it involves ascertaining whether the application effected is or is not a correct one, classifying the actions of States, determining whether they have carried out their duties or committed any breach of their obligations, and whether the established reservations in favour of State sovereignty have been respected.

See also id. at 120, 125–26; and Separate Opinion of Judge Jiménez de Aréchaga, 1972 ICJ Rep. at 146–50.

113 Dissenting Opinion of Judge Nagendra Singh, 1972 ICJ Rep. at 164–65.

114 Fisheries Jurisdiction, Jurisdiction of the Court, 1973 ICJ Rep. 3 and 49.

115 Fisheries Jurisdiction Interim Protection, 1972 ICJ Rep. at 15 and 33: “Whereas on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest.”

116 In Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Merits, 1974 ICJ Rep. 3 and 175 (Judgments of July 25), the Court again broadly interpreted the scope of its jurisdiction over a matter:

[I]t would be too narrow an interpretation of the compromissory clause to conclude that the Court’s jurisdiction is limited to giving an affirmative or a negative answer to the question of whether the extension of fisheries jurisdiction . . . is in conformity with international law. . . .

. . . Furthermore, the dispute before the Court must be considered in all its aspects. Even if the Court’s competence were understood to be confined to the question of the conformity of Iceland’s extension with the rules of international law, it would still be necessary for the Court to determine in that context the role and function which those rules reserve to the concept of preferential rights and that of conservation of fish stocks.

. . . Consequently, the suggested restriction on the Court’s competence not only cannot be read into the terms of the compromissory clause, but would unduly encroach upon the power of the Court to take into consideration all relevant elements in administering justice between the Parties.

Id. at 21–22 and 190.

117 Tehran Provisional Measures, 1979 ICJ Rep. 7; Tehran Judgment, 1980 ICJ Rep. 3.

118 With respect to jurisdiction of the Court over the seizure at the U.S. Embassy and Consulate of American citizens who were not diplomats, see Tehran Provisional Measures, 1979 ICJ Rep. at 14; and Tehran Judgment, 1980 ICJ Rep. at 25.

119 See note 10 supra.

120 Referring to the Nicaragua Memorial at the jurisdiction and admissibility phase, the Court reported that the following articles of the FCN Treaty had allegedly been violated by the United States: Articles XIX, XIV, XVII, XX and I. Nicaragua Jurisdiction, 1984 ICJ Rep. at428–29.

121 Article XXI, paragraph 1 of the U.S.–Nicaragua FCN Treaty, supra note 10, provides in part:

  • 1.

    1. The present Treaty shall not preclude the application of measures:

    . . .

  • (c)

    (c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment;

  • (d)

    (d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

See Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 635–37.

122 See Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 635–37; Counter-Memorial Submitted by the United States of America (The Questions of the Jurisdiction of the Court to Entertain the Dispute and of the Admissibility of Nicaragua’s Application) (Nicar. v. U.S.) 71(Aug. 17, 1984). See generally id. at 67–72.

123 See text at note 42 supra.

124 See, e.g., Nicaragua Provisional, Dissenting Opinion of Judge Schwebel, 1984 ICJ Rep. at 204, 207.

125 Nicaragua Jurisdiction, 1984 ICJ Rep. at 427.

126 Id. at 428–29.

127 Dissenting Opinion of Judge Schwebel, id. at 632–37. This view is supported by Reisman, supra note 8, and Moore, supra note 8.

128 Nicaragua Merits, Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 306–11.

129 Nicaragua Merits, Separate Opinion of Judge Lachs, 1986 ICJ Rep. at 158, 165.

130 Nicaragua Jurisdiction, Separate Opinion of Judge Nagendra Singh, 1984 ICJ Rep. at 444.

131 Nicaragua Jurisdiction, Separate Opinion of Judge Oda, 1984 ICJ Rep. at 471; Separate Opinion of Judge Ago, 1984 ICJ Rep. at 514; Separate Opinion of Judge Jennings, 1984 ICJ Rep. at 533, 557.

132 Nicaragua Merits, 1986 ICJ Rep. at 138–42.

133 See Englemann, A., A History of Continental Civil Procedure (1927Google Scholar); Dalloz, , Encyclopédie Juridique, 2 Procédure, Compétence, sec. 1, paras. 14–16 (2d ed. 1979)Google Scholar. Theoriginal common law writ system came closest to requiring a substantial showing before the writ was issued and the law courts obtained jurisdiction. Maitland, F., Equity 293–375 (1913)Google Scholar.

134 28 U.S.C.A. §1331 (West Supp. 1987): “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

135 “we think . . . that when a question to which the judicia! power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the . . . courts jurisdiction of that cause . . . . ” Osborn v. Bank of the United States, 22U.S. (9 Wheat.) 738, 823 (1824). Gully v. First Nat’l Bank, 299 U.S. 109, 112–13 (1936).Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908).

[A]n action “arises under” [a federal statute] if and only if the complaint is for a remedy expressly granted by the Act . . . or asserts a claim requiring construction of the Act,. . .or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim.

T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964). See also Port Auth.-Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 261–62 (9th Cir. 1967).

136 19 U.S. (6 Wheat.) 264, 379 (1821).

137 Osborn, 22 U.S. (9 Wheat.) at 822.

The rule evolved over the next century in a series of Supreme Court decisions. In Tennesseev. Union & Planters’ Bank, 152 U.S. 454, 464 (1893), the Court held that “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” This so-called well-pleaded complaint rule was most clearly articulated in Louisville & Nashville R.R. v. Mottley, where the United States Supreme Court wrote, “a suit arises under the Constitution and laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or that Constitution.” 211 U.S. at 152.

138 255 U.S. 180 (1921).

139 Id. at 199.

140 Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910); Levering & G. Co. v. Morrin, 289 U.S. 103, 105 (1933); Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d at 262.

In another motion, however, a defendant may move to dismiss the action on the ground that the plaintiff has not stated a meritorious claim for relief based on the law. Federal Rule of Civil Procedure No. 12(b)(6). Such a decision normally precedes trial on the merits. A loss by the plaintiff at this stage would not preclude a further suit if the plaintiff could establish the existence of another meritorious claim.

141 See Gulf Ins. Co. v. American Arbitration Ass’n, 311 F.Supp. 989 (E.D. Pa. 1970); Gavlick Constr. Co. v. H.F. Campbell Co., 389 F.Supp. 551 (W.D. Pa. 1975); University of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974). See also Moses H. Cone Memorial Hosp. v. Mercury Constr., 460 U.S. 1, 24–25 (1983); Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street, 35 Cal.3d 312, 197 Cal. Rptr. 581, 673 P.2d 251 (1983); Domkeon Commercial Arbitration, sec. 12:02 (rev. ed.).

142 American Silk M. Corp. v. Meinhard-Commercial Corp., 35 App. Div. 2d 197, 315 N.Y.S.2d 144 (1970); Harrison F. Blades, Inc. v. Jarman Memorial Hosp. Bldg. F., 109 111.App. 2d 224, 229–31, 248 N.E.2d 289, 292 (1969); Bowmer v. Bowmer, 50 N.Y.2d 288, 406 N.E.2d 760 (1980).

143 Griffin v. Semperit of America, Inc., 414 F.Supp. 1384, 1390 (S.D. Tx. 1976).

144 It might be possible, however, to develop a procedure that would permit an early determination of the sufficiency of the legal theory. Perhaps, thought might be given to adopting an approach whereby the sufficiency of the legal theory could be tested independently of the factual proof. Still, such an approach might not avoid all of the consequences of international adjudication that arise from a full hearing on the merits.

145 Considerations other than the merits of the claim may enter into the Court’s decision to render a judgment on the merits. Institutional considerations are an important factor to betaken into account. See Charney, supra note 15, at 308–13.