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The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
W. Michael Reisman*
Affiliation:
Yale University
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Extract

In the wake of the 1984 Judgment of the International Court on jurisdiction and admissibility issues in the Nicaragua case, the United States reviewed the utility and desirability of continued participation in the optional jurisdictional regime established by Article 36(2) of the Statute of the International Court of Justice. The Executive concluded essentially that the experiment initiated by the regime neither had succeeded nor was likely to succeed in the future; that its subscription was ragged and asymmetrical in terms of world politics; that the Court, the custodian of this mode of jurisdiction, had adopted new theories of interpretation that were inconsistent, in the U.S. view, with the thrust of the provision; that the Court itself had changed; and that, in sum, continued United States participation would discriminate against United States interests while contributing nothing to world order. Accordingly, on October 7, 1985, the Secretary of State informed the Secretary-General of the United Nations that the United States was terminating, in accord with the terms of its Declaration and the provisions of the Statute, its adherence to the optional regime under Article 36(2) of the ICJ Statute.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 166 - 173
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.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26). For the text of the U.S. Statement on withdrawal from the case, see Dep’t St. Bull., No. 2096, March 1985, at 64, reprinted in 24 ILM 246 (1985).

2 Declaration of Aug. 14, 1946, 61 Stat. 1218, TIAS No. 1598, 1 UNTS 9.

3 See generally Dep’t of State Press Statement, 24 ILM 1743(1985).

4 See Contemporary Practice of the United States, 80 AJIL 163–65 (1986).

5 1984 ICJ Rep. at 442, para. 113.

6 Id. at 426–27, para. 80. See also Separate Opinion of Judge Oda, id. at 472, 472.

7 Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, Nicar.-U.S., 9 UST 449, TIAS No. 4024, 367 UNTS 3 (entered into force May 25, 1958).

8 1984 ICJ Rep. at 428, para. 83.

9 See Dissenting Opinion of Judge Schwebel, id. at 558, 635; see also Reisman, Has the International Court Exceeded its Jurisdiction?, 80 AJIL 128, 130–31 (1986).

10 Treaty of Friendship, Commerce and Navigation, supra note 7.

11 1984 ICJ Rep. at 428, para. 83.

12 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 38, para. 56 (Judgment of June 27).

13 1984 ICJ Rep. at 425–26, paras. 75–76.

14 1986 1CJ Rep. at 92 ff., para. 172 et seq.

15 Id. at 115–16, para. 221.

16 Id. at 116, para. 222.

17 Id. at 135 ff., para. 271 et seq.

18 Id. at 138, para. 276.

19 Cf. id. at 136–37 and 138, paras. 273 and 275.

20 See especially the Dissenting Opinions of Judges Oda and Schwebel, id. at 212 and 259, respectively.

21 Art. 36, Statute of the International Court of Justice, ICJ Acts and Documents, No. 4 (1978).

22 See, e.g., Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151 (Advisory Opinion of July 20).

23 See, e.g., Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, 1982 ICJ Rep. 325 (Advisory Opinion of July 20).

24 1984–1985 ICJ Y.B. 102–18. For a list of the FCN treaties, see also List of Treaties of Friendship, Commerce and Navigation, 1980 ICJ Pleadings (United States Diplomatic and Consular Staff in Tehran) 233–34 (Ann. 51 to U.S. Memorial).

25 Trademark Registration Treaty, S. Exec. Doc. H, 94th Cong., 1st Sess. (1975); Vienna Convention on the Law of Treaties, S. Exec. Doc. L, 92d Cong., 1st Sess. (1971).

26 1984–85 ICJ Y.B., supra note 24.

27 But cf. Corfu Channel Case, Preliminary Objection, 1948 ICJ Rep. 15, 27 (Judgment of Mar. 25).

28 Memorandum on Dispute Settlement Clause in Treaty of Friendship, Commerce and Navigation with China (n.d.), reproduced in 1980 ICJ Pleadings, supra note 24, at 234, 235 (Ann. 52 to U.S. Memorial).

29 Dep’t of State, Memorandum on Provisions in Commercial Treaties relating to the International Court of Justice (n.d.), reproduced in 1980 ICJ Pleadings, supra note 24, at 236, 237.

30 1986 ICJ Rep. at 307–08, para. 101.

31 See note 15 supra and accompanying text.

32 See note 16 supra and accompanying text.

33 See note 17 supra and accompanying text.

34 1986 ICJ Rep. at 117, para. 224

35 Id. at 138, para. 275.

36 Id., para. 276 (emphasis added). One may note that the Court is quite wrong here on the law. See Dissenting Opinion of Judge Oda, id. at 249–50, para. 80.

37 Reisman, W. M., Nullity and Revision: The Review and Enforcement of International Judgments and Awards 379–83 (1971)Google Scholar.