Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-28T19:57:27.907Z Has data issue: false hasContentIssue false
  • English
  • Français

Israel's Acceptance of the Compulsory Jurisdiction of the International Court of Justice

Published online by Cambridge University Press:  12 February 2016

Thedor Meron
Get access

Extract

The object of this paper is to examine the obligations assumed by Israel, by virtue of its acceptance of the compulsory jurisdiction of the International Court of Justice (hereinafter: “the Court”), in accordance with Article 36, paragraph 2, of the Court's Statute, which reads as follows:

“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:

  • (a) the interpretation of a treaty;

  • (b) any question of international law;

  • (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.”

An attempt will be made to compare Israel's declaration of acceptance of the compulsory jurisdiction with the declarations of other countries, and to analyse the reasons underlying Israel's particular declaration. The paper will not purport to consider the many problems concerned with the Court's compulsory jurisdiction. These problems, and the considerable jurisprudence of the Court dealing with them, are well known to students of international law. Indeed, probably no other aspect of the Court's jurisdiction has been the object of such rich legal literature, some of it quite recent.

Type
Articles
Information
Israel Law Review , Volume 4 , Issue 3 , July 1969 , pp. 307 - 332
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1969

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See in particular, the exhaustive treatment of problems of compulsory jurisdiction, in Rosenne, , The Law and Practice of the International Court (1965) (Vol. I) 364–421.Google Scholar

2 108 United Nations Treaty Series (hereinafter: “U.N.T.S.”) 241. This declaration must be read together with the instrument of ratification, the text of which is given at p. 323 below. I.C.J. Yearbook 1950–51, at 193. Note that the English translation in the Yearbook is different from that contained in the Treaty Series, which is cited in the text above.

3 252 U.N.T.S. at 302. I.C.J. Yearbook 1967–68, at 51.

4 This case is referred to more fully below.

5 Pleadings, I.C.J., Aerial Incident of 27 July 1955, at 153.Google Scholar

6 I.C.J. Yearbook 1967–68, at 64.

7 272 U.N.T.S., at 226. 265 U.N.T.S., at 300.

8 I.C.J. Yearbook 1967–68, at 67.

9 Rosenne speaks of the “antithesis” between the “automatic acceptance of jurisdiction for the categories of legal disputes mentioned in Article 36(2) on the one hand, and on the other hand the limited acceptance of jurisdiction for cases or matters defined … which results either from a special agreement in the technical sense or from a compromissory clause in a treaty or convention in force, a matter that comes under Article 36(1)”. Op. cit., 370. See also ibid. 371, concerning the Egyptian acceptance of jurisdiction in regard to the future operation of the Suez Canal.

The above comments are, of course, not intended to constitute a comparison between Israel and Arab attitudes to the Court. Such a comparison would have to take into account various factors, many of them political, including the presentation of candidatures to the Court, the Court's membership, the attitude to jurisdictional clauses in treaty-making, and participation in advisory proceedings, all of which cannot be dealt with in this paper. The facts concerning Israel's and the Arab States' acceptance of the compulsory jurisdiction have merely been noted.

10 See e.g. Colloque de Juristes Arabes sur la Palestine. La Question Palestinienne, Alger, at 72–122 (Juillet, 1967).

11 See, e.g., Elaraby, , “Some Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements”, the Middle East Crisis: Test of International Law (1968) 33 Law and Contemporary Problems 97, 101–2.Google Scholar

12 Rosenne, , “Directions for a Middle East Settlement—Some Underlying Legal Problems”, the Middle East Crisis: Test of International Law (1968) 33 Law and Contemporary Problems, 44, 46–7.Google Scholar

13 Thus, in the case concerning Right of Passage over Indian Territory (Preliminary Objections), the Court stated that:

“every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of Acceptance. A State accepting the jurisdiction of the Court must expect that an application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. For it is on that very day that the consensual bond…comes into being between the States concerned.” I.C.J. Reports 1957, 125, at 146.

14 See, e.g., Rosenne, op. cit. 389.

Williams, Fisher, “The Optional Clause (British Signature and Reservations)” (1930) 11 Brit. Y. B. Int'l L. 63, 71–72Google Scholar; Hambro, , “Some Observations on the Compulsory Jurisdiction of the International Court of Justice” (1948) 25 Brit. Y. B. Int'l L. 133, 143Google Scholar; Hudson, , The Permanent Court of International Justice (1920–1942) (1943)Google Scholar; Waldock, “Decline of the Optional Clause” (1955–1956) 32 Brit. Y. B. Int'l L. 244, 248.Google Scholar

15 Article 36, paragraph 3 reads as follows:

“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.”

16 Article 36, paragraph 6 provides:

“In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

17 See also case concerning Right of Passage over Indian Territory (Preliminary Objections), I.C.J. Reports 1957, 125, at 141–44.

18 See e.g. the Treaty of Friendship, Commerce and Navigation between Israel and the United States of America (Article 24), signed on 23 August 1951, Kitvei Amana 34; Treaty of Conciliation, Judicial Settlement and Arbitration, between Israel and Switzerland (Article 34), signed on 2 August 1965, Kitvei Amana 642.

19 (Article 38) Kitvei Amana 65. See also the Convention on the Prevention and Punishment of the Crime of Genocide (Article 9), of 9 December 1948, Kitvei Amana 5; Convention on Road Traffic (Article 62), of 19 September 1949, Kitvei Amana 71; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (Article 22), of 21 March 1950, Kitvei Amana 26; Convention on the Declaration of Death of Missing Persons (Article 18), of 6 April 1950; Kitvei Amana 17; Protocol relating to the Status of Refugees (Article 4), of 28 July 1951 (as yet unpublished); Convention on the Political Rights of Women (Article 9) of 31 March 1953, Kitvei Amana 161.

20 It may be observed that some recent human rights conventions adopted by the United Nations General Assembly do not provide for the jurisdiction of the Court, but for other organs and methods of settlement of disputes. These conventions include the International Convention on the Elimination of all Forms of Racial Discrimination (1966); The International Covenant on Civil and Political Rights and the relevant Optional Protocol (1967).

21 See A/Conf. 39/C.l./L.370/Rev. 1/Vol. II at 320–24. See the statement made by Mr. Rosenne on 14 May 1968, at the 69th meeting of the Committee of the Whole, A/Conf. 39/C.l/SR. 69, at 19–21, and the statement made by Mr. Meron on 21 April 1969, at the 97th meeting of the Committee of the Whole, A/CONF. 39/C.l/SR. 97, at 10–12.

21a I.C.J. Reports 1948, at 121–122.

22 500th Plenary Meeting of the General Assembly, 23 November 1954, paras. 112–13.

23 Article 36, paragraph 5, provides as follows:

“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.”

24 Case concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, I.C.J. Reports 1959, at 127. See also Rosenne, op. cit. 378.

25 I.C.J. Yearbook 1967–68 at 54. See also the Declaration of Nigeria of 14 August 1965, ibid., at 60. Article 93, paragraph 2 provides that “A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.”

26 Ibid. 48.

27 Ibid. 44.

28 Ibid. 28.

29 Article 35, paragraph 2, of the Statute provides:

“The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.”

30 The conditions according to which the Court may be open to a State which is not a party to the Statute were laid down by the Security Council on October 15, 1946. (A similar decision had been reached by the Council of the League on April 17, 1922). The Security Council Resolution, in its first paragraph, provides that the interested State has to deposit with the Registrar of the Court a declaration of acceptance of the jurisdiction of the Court, according to the Charter, the Statute and the Rules of Court. The State has also to promise to carry out the decisions of the Court and to accept the obligations of a member State, according to article 94 of the Charter.

The Resolution in its second paragraph, provided:

“(2) Such declaration may be either particular or general. A particular declaration is one accepting the jurisdiction of the Court in respect only of a particular dispute or disputes which have already arisen. A general declaration is one accepting the jurisdiction generally in respect of all disputes or of a particular class or classes of disputes which have already arisen, or which may arise in the future.

A State, in making such a general declaration, may, in accordance with Article 36, paragraph 2, of the Statute, recognize as compulsory, ipso facto, and without special agreement, the jurisdiction of the Court, provided, however, that such acceptance may not, without explicit agreement, be relied upon vis-à-vis States parties to the Statute, which have made the declaration in conformity with Article 36, paragraph 2 of the Statute of the International Court of Justice.” Security Council, Official Records, First Year, Second Series, at 468; I.C.J. Yearbook 1967–68, at 28–29.

Only the “general declaration” is a recognition of the compulsory jurisdiction.

31 Speaking about this problem, Hambro, op. cit. 135, notes that:

“… states which have deposited declarations accepting the compulsory jurisdiction in accordance with that resolution may be bound towards each other. There will, then, be two sets of reciprocal obligations: one between the states signatories of the Statute and one between the other states.”

32 Article 36, paragraph 3, provides that “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.”

33 See e.g., Rosenne, op. cit., at 385; Hudson, The Permanent Court of International Justice (1920–1942) (1943) 465.

Hudson says categorically:

“Paragraph 2 of Article 36 provides for a State's recognition of the Court's jurisdiction in relation to any other Member or State accepting the same obligation. Every declaration made under paragraph 2 of Article 36 whether it is made by signature of the optional clause or otherwise, had this characteristic impressed upon it. It is not a reservation made by the declarant, it is limitation in the very nature of the declaration which operates under or is made in conformity with paragraph 2 of Article 36” (at 468).

Having reviewed the various forms of declarations concerning the conditions of reciprocity, Hudson adds:

“from a legal point of view, the formulae seem to serve no purpose; all of the declarations contain the limitation ipso facto, and this is true even though they are said to be without condition.” (Ibid., at 465.)

But see Enrique: “L'acceptation, sans Réciprocité, de la Juridiction Obligatoire de la Cour Permanente de Justice Internationale” (1932) 13 Revue de droit international et de législation comparée, at (3ème série) 835, and Hambro, op. cit. at 136–37.

34 See, e.g., Right of Passage Case (Preliminary Objections), I.C.J. Reports, 1957, at 145.

35 In the Interhandel case, the Court stated that: “Reciprocity…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”. I.C.J. Reports, 1959, 6 at 23.

In the Phosphates in Morocco case, the Court held, with regard to the Italian Declaration, that: “This declaration does not contain the limitation that appears in the French declaration concerning the situations or facts with regard to which the dispute arose; nevertheless as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the parties.” P.C.I.J. Series, A/B, No. 74, at 22. See also Electricity Company of Sofia and Bulgaria case, P.C.I.J. Series A/B, No. 77, at 81.

In the Anglo-Iranian Oil Co. case the Court declared:

“In the present case the jurisdiction of the Court depends on the Declarations made by the Parties under Article 36, paragraph 2 on condition of reciprocity.…By these Declarations, jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it. As the Iranian Declaration is more limited in scope than the United Kingdom Declaration, it is the Iranian Declaration on which the Court must base itself. This is common ground between the Parties.” I.C.J. Reports 1952, at 103.

See also the Norwegian Loans case, I.C.J. Reports 1957, at 23–24. Hambro points out that:

“It may be argued that reciprocity means reciprocity in all ways and so far as all reservations are concerned. This means a cumulative set of reservations…it follows that State A, having accepted the jurisdiction with reservations x, y and z, can rely not only on those reservations but also on all other reservations made by other signatories. If an opponent, State B, had assumed the obligations with reservations o, p, and r, it would mean in consequence that States A and B could both reciprocally rely on all of these six reservations, x, y, z, o, p, and r.” op. cit., at 152.

See also Rosenne, op. cit. 384–388.

36 See e.g. the United Kingdom Declaration of 27 November 1963, which provided for the exclusion of “disputes with the government of any other country which is a Member of the British Commonwealth of Nations, all of which disputes shall be settled in such manner as the parties have agreed or shall agree.” I.C.J. Yearbook 1967–68, at 67–68.

37 189 League of Nations Treaty Series (hereinafter “L.N.T.S.”), at 452–453.

38 1 U.N.T.S. at 50–51.

This reservation was both ratione personae (applying only to England), and ratione materiae (applying only to disputes concerning Belize).

39 96 L.N.T.S. at 181.

40 104 L.N.T.S. at 494.

Regarding this type of exclusion see, in general, Hudson, op. cit. 467.

41 From diplomatic correspondence in the files of the Israel Ministry for Foreign Affairs.

42 For an example of a formal protest by one State concerning a reservation made by another State in a declaration accepting the compulsory jurisdiction of the Court, see the letter by Sweden of 23 February 1956, addressed to the Secretary-General of the United Nations, and relating to reservation (3) in the declaration of Portugal. I.C.J. Pleadings, Case Concerning Right of Passage over Indian Territory, 1960, at 217.

43 Were this interpretation not included in the instrument of ratification, an interesting question would have arisen concerning the status vis-à-vis third States of the interpretation contained in the diplomatic correspondence.

44 108 U.N.T.S. at 241, n. 2.

The matter was, however, further complicated by the United Nations Secretariat which, on 25 October 1951, issued an inaccurate press release (L/206), which entirely missed the point of clarification contained in the instrument of ratification. The press release stated that the Government of Israel could not commit itself “to conform strictly to the Court's interpretation in a case where the Court's competence would be questioned” (sic!). After Israel had made representations in writing to the Secretariat, the Secretariat issued, on 2 January 1952, a correction of the Press Release (L. 206/Rev. 1). For a comment by an Arab scholar, see Shihata, The Power of the International Court to Determine its Own Jurisdiction (1965) 274. Shihata observes: “the first declaration of Israel… seemed for a while to suggest that it was made with a reservation to the compétence de la compétence. Nothing in the wording of the declaration itself carried this meaning. The confusion was however introduced by the wording of the instrument of ratification; the question lost its practical relevancy, after Israel had replaced the above declaration in 1956 with a new declaration… under which this difficulty does not arise.”

45 Op. cit. 399; Hambro, op. cit., 141, suggests that:

“It is perhaps not strictly accurate to refer to a time-limit as a condition. The declaration in question is wholly valid, with or without reservations, conditions or exceptions, within the time-limit fixed.”

See, in general, Rosenne, , The Time Factor in the Jurisdiction of the International Court of Justice (1960).Google Scholar

46 See, e.g., Turkey, I.C.J. Yearbook, at 66.

47 See, e.g., the declarations of the Philippines, ibid. 62; Luxembourg, ibid. 55; Mexico, ibid. 57.

48 See the declaration of Pakistan, ibid. 61, and of Liechtenstein, ibid. 54.

49 See the declarations of Nicaragua, ibid. 60, Panama, ibid. 62, Haiti, ibid. 50 and of the Dominican Republic, ibid. 47.

50 Hudson observes:

“as the French version of the paragraph and both the English and French versions of the Optional Clause refer to the recognition of acceptance of jurisdiction “from this date” (dès à présent) i.e. from the date of declaration, it would seem that the declaration was intended to take effect at the time of signature.” Op. cit., at 452.

51 Article 36, paragraph 4 of the Statute provides:

“Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.”

During the régime of the Permanent Court of Justice, there was an additional condition for the entry into force of a declaration, namely, the deposit of the instrument of ratification of the Protocol of Signature by the State which accepted the compulsory jurisdiction. This condition is no longer in force.

52 “The Twenty-Fourth Year of the World Court” (1946) 40 Am.J. Int'l L. 1 at 34.

53 Op. cit. 141.

54 See Rosenne, op. cit. 381. See also Right of Passage Case (Preliminary Objections), I.C.J. Reports 1957, at 143–46. Hambro's views are also supported by Article 102, paragraph 2, of the Charter, bearing in mind that two declarations together constitute a treaty of arbitration, and the Court is an organ of the United Nations.

55 Rosenne, op. cit. 415.

56 See in general Rosenne, , The Time Factor in the Jurisdiction of the International Court of Justice (1960) 36.Google Scholar See, e.g., the declaration of France, I.C.J. Yearbook, 1967–68, at 48.

57 Series A/B, No. 74, at 24.

See also Electricity of Sofia Case, Series A/B. No. 77, at 82; Anglo-Iranian Oil Company Case, I.C.J. Reports, 1952 at 110; The Interhandel Case, I.C.J. Reports, 1959, at 20–21.

58 Rosenne, op. cit., n. 56, 3, at 20–22.

59 Ibid. 50–53.

60 See, e.g., Electricity of Sofia Case, Series A/B, No. 77 at 82.

61 I.C.J. Yearbook 1967–68, at 67.

62 From diplomatic correspondence in the files of the Israel Ministry for Foreign Affairs.

63 See the Report of the Ministry for Foreign Affairs of Israel to the International Law Commission, U.N. Doc. A/CN. 4/19, 24 January 1950, paras. 26, 28, 29 (1950) 2 Yearbook of the International Law Commission, at 216–17.

64 In that case the Permanent Court of International Justice, held, inter alia:

“It is true that it may be said that the awards of the Mixed Arbitral Tribunal established between the Belgian Electricity Company and the Bulgarian authorities a situation which dates from before March 10th, 1926, and still persists at the present time. Nevertheless, the dispute between the Belgian Government and the Bulgarian Governmnt did not arise with regard to this situation or to the awards which established it.…The only situations or facts which must be taken into account from the standpoint of the compulsory jurisdiction accepted in the terms of the Belgian declaration are those which must be considered as being the source of the dispute. No such relation exists between the present dispute and the awards of the Mixed Arbitral Tribunal. The latter constitute the source of the rights claimed by the Belgian Company, but they did not give rise to the dispute, since the Parties agree as to their binding character and that their application gave rise to no difficulty until the acts complained of.…It is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to that situation or fact. A situation or fact in regard to which a dispute is said to have arisen must be the real cause of the dispute. In the present case it is the subsequent acts with which the Belgian Government reproaches the Bulgarian authorities with regard to a particular application of the formula—which in itself has never been disputed—which form the centre point of the argument and must be regarded as constituting the facts with regard to which the dispute arose”; P.C.I.J. Series A/B, No. 77, at 81–82. Compare, Phosphates in Morocco Case, P.C.I.J. A/B, No. 74, at 24.

65 Compare with the Mavrommatis case, P.C.I.J. Series A. No. 2, at 11ff.

66 Rosenne, op. cit. 401.

67 I.C.J. Yearbook 1967–68, at 42.

It may be noted that during the Second World War several countries excluded disputes arising out of events occurring during that war: e.g. Canada, ibid 45.

68 Ibid. 59.

69 Ibid. 49.

70 Ibid. 64.

71 Ibid. 68.

72 Ibid. 56.

73 Ibid. 51.

74 Ibid. 53.

75 Ibid. 57.