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Somber Reflections on the Compulsory Jurisdiction of the International Court

Published online by Cambridge University Press:  27 February 2017

Mark Weston Janis*
Affiliation:
University of Connecticut

Extract

The Military and Paramilitary Activities case deepens the gloom already surrounding the two forms of the International Court’s compulsory jurisdiction. Neither Article 36(2) of the ICJ Statute, which confers general compulsory jurisdiction upon the Court in cases of reciprocal state declarations, nor that part of Article 36(1) which vests jurisdiction when treaties so provide has been particularly successful in recent practice. No one denies that the ICJ has served a useful, if occasional, role when it has heard and decided cases voluntarily submitted by then-willing states pursuant to the specially conferred provision of Article 36(1). What is in question is the utility of the all too many recent cases where the Court has taken jurisdiction pursuant to the compulsory provisions of its Statute and then has been, to one degree or another, disregarded.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Copyright
Copyright © American Society of International Law 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

2 Statute of the International Court of Justice, 59 Stat. 1055 (1945), TS No. 993, Art. 36.

3 South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.) (Second Phase), 1966 ICJ Rep. 6 (Judgment of July 18).

4 Gross, Conclusions, in 2 The Future of the International Court of Justice 727, 747 (L. Grossed. 1976).

5 Fisheries Jurisdiction (UK v Ice.; FRG v. Ice.), Interim Protection, 1972 ICJ Rep. 12, 30 (Orders of Aug. 17); Jurisdiction of the Court, 1973 ICJ Rep. 3, 49 (Judgments of Feb. 2); Merits, 1974 ICJ Rep. 3, 175 (Judgments of July 24).

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

7 Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3 (Judgment of Dec. 19).

8 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 ICJ Rep. 7 (Order of Dec. 15); 1980 ICJ Rep. 3 (Judgment of May 24).

9 1986 ICJ Rep. 14.

10 UN Charter, 59 Stat. 1031 (1945), TS No. 993, art. 94(1).

11 Corfu Channel (UK v. Alb.), Merits, 1949 ICJ Rep. 4 (Judgment of Apr. 9).

12 Anglo-Iranian Oil Co. (UK v. Iran), Interim Protection, 1951 ICJ Rep. 89 (Order of July 5).

13 1972 ICJ Rep. 12, 30.

14 1979 ICJ Rep. 7; 1980 ICJ Rep. 3.

15 1986 ICJ Rep. 14; see The Times (London), June 28, 1986, at 1.

16 UN Charter, supra note 10, art. 94(2), which reads in full:

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

17 In Diplomatic and Consular Staff, before the Judgment came down, the Soviet Union had already vetoed a U.S. proposal to the Security Council to impose an economic boycott against Iran. There were 10 votes in favor, 2 against, 2 abstentions and 1 not voting. UN Doc. S/PV.2191/Add.1, at 54–55 (1980). The United States never asked the Security Council to enforce the Court’s Judgment. In the Military and Paramilitary case, the United States vetoed Security Council action.

18 Lauterpacht, H., The Development of International Law by the International Court 45 (1958)Google Scholar.

19 1986 ICJ Rep. at 23–26, paras. 26–31.

20 Id. at 38–45, paras. 57–74.

21 Id. at 92–97, paras. 172–82.

22 Id. at 97–117, paras. 183–225.

23 President Carter, Address of Jan. 8, 1980, Dep’t St. Bull., March 1980, No. 2036, at 33.

24 See Janis, The Role of the International Court in the Hostages Crisis, 13 Conn. L. Rev. 263 (1981).

25 For some of the public relations efforts of Nicaragua with respect to the Court’s Judgment, see The Times (London), July 28, 1986, at 5; and id., July 30, 1986, at 5.

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