Compulsory Adjudication in International Law: The Past, The Present, and Prospects for the Future
214 FORDHAM INTERNATIONAL LA WJOURNAL [Vol. 9:213
Fordham International Law Journal
Copyright c 1985 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Given the very clear and limited role that states created for judicial settlement in the United
Nations Charter, a serious attempt to expand the International Court of Justice’s jurisdiction would
inevitably involve an amendment of the Charter itself. In light of the hostility that all but a few
states have shown with regard to compulsory adjudication, such an effort would be doomed to
The creation of the International Court of Justice' (ICJ or
Court) has not effectively reduced the number or severity of
international conflicts. Our world is full of violence between
states yet the Court itself is often without a contentious case
* A.B. 1981, Princeton University; J.D. 1984, Harvard University; LL.M. 1985,
European University Institute, Florence, Italy. Mr. Giustini practices law in New
1. With the establishment of the United Nations and the dissolution of the
Permanent Court ofJustice (PCIJ), the International Court ofJustice (ICJ or Court) was
created. U.N. CHARTER art. 92. The history of the Court dates back to the 1920's
when the Permanent Court of International Justice was established in the wake of
World War I. The STATUTE OF THE INTERNATIONAL COURT OF JUSTICE (Statute of the
Court) is today appended as a part of the U.N. Charter. See id. Article 93 of the U.N.
Charter makes the member states of the United Nations ipsofacto members of the ICJ.
U.N. CHARTER art. 93. The U.N. CHARTER, art. 93 provides that:
1. All Members of the United Nations are ipsofacto parties to the Statute of
the International Court of Justice.
2. 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.
The primary jurisdictional provision of the ICJ is article 36 of the Statute of the
Court. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 36, para. 6, 59 Stat.
1055, 1060, T.I.A.S. No. 993 (1945). Article 36 generally provides that the Court has
jurisdiction to decide disputes brought before it by states in matters of international
law. Id. The issue of voluntary jurisdiction as opposed to compulsory jurisdiction
was addressed in article 36(2), which became known as the Optional Clause. Id. art.
36, para. 2. This provision attempted to reconcile the consensual nature of
international law and the desires of the states drafting the Court's Statute to reach a
compromise concerning the Court's compulsory jurisdiction. Pursuant to this provision,
the ICJ may exercise compulsory jurisdiction only over those states which have
consented. Id. In order to encourage states to consent to the ICJ's compulsory
jurisdiction under the Optional Clause, various reservations to a state's consent were
permitted under article 36(3) of the ICJ statute. Id. art. 36, para. 3; Merrills, The Optional
Clause Today, 50 BRIT. Y.B. INT'L L. 87, 88 (1979); see also U.N. CHARTER art. 36, para.
3. These reservations to consent reflected concern that the ICJ might use its
compulsory jurisdiction under the Optional Clause to assume jurisdiction in a manner to
which the state had not consented and thus to overstep state sovereignty.
before it. States have historically been reluctant to submit
their interests to an international tribunal. Thus, the Court's
jurisdiction for contentious cases is narrow. Many
jurisdictional declarations made under article 36(2) of the Court's
Statute 2 -the so-called "Optional Clause'-are severely
restricted by the use of broad reservations. Moreover, in recent
years, the Court has been plagued by the problem of the
socalled "non-appearing respondent." Despite their prior
acceptances of both the Statute of the Court and, consequently,
the Court's power under article 36(6) to decide questions of its
own competence, states have adopted a practice of boycotting
the Court's proceedings in order to contest jurisdiction.4 By
its decision to withdraw from any further proceedings in the
case initiated by Nicaragua, the United States-commonly seen
as a supporter ofjudicial settlement-recently joined the ranks
of the non-appearing respondents. 5
2. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 36, para. 2.
3. For a history of the content and number of reservations under the Optional
Clause, see Waldock, The Decline of the Optional Clause, 32 BRIT. Y.B. INT'L L. 244
(1957). Merrills, The Optional Clause Today, 50 BRIT. Y.B. INT'L L. 87 (1979) gives a
comparable, but more recent, survey of the subject.
4. See J. ELKIND, NON-APPEARANCE BEFORE THE INTERNATIONAL COURT OF
JUSTICE: A FUNCTIONAL AND COMPARATIVE ANALYSIS (1984) (exhaustive analysis of the
phenomenon of non-appearance). States have boycotted all or part of the following
cases: Corfu Channel (U.K. and N.Ire. v. AIb.), 1949 I.C.J. 244 (Judgment of
December 15); Anglo-Iranian Oil Company (U.K. v. Iran), 1952 I.Cj. 93 (Preliminary
Objection); Nottebohm Case (Leicht. v. Guat.), 1953 I.C.J. Ill (Preliminary Objection);
Fisheries Jurisdiction (U.K. and N.Ir. v. Ice.), 1972 I.C.J. 12 (Interim Protection
Order of Aug. 17); Trial of Pakistani Prisoners of War (Pak. v. India), 1973 I.Cj. 328
(Interim Protection Order ofJuly 13); Nuclear Tests (Austrl. v. Fr.), 1974 I.C.J. 253
(Judgment of Dec. 20), (N.F. v. Fr.) 1974 I.CJ. 457 (Judgment of Dec. 20); Aegean
Sea Continental Shelf (Grece v. Turk.), 1978 I.C.J. 3 (Judgment of Dec. 19); Iranian
Hostages (U.S. v. Iran), 1980 I.C.J. 3 (Judgment of May 24, 1980).
5. The Republic of Nicaragua submitted an application to the I.Cj. on April 9,
1984 alleging that the United States was using military force against Nicaragua in
violation of international law. Nicaraguan Application to the International Court of
Justice of April 9, 1984, quoted in Military and Paramilitary Activities in and against
Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, 429 (Judgment of Nov. 26 onJurisdiction
and Admissibility) [hereinafter cited as Judgment ofNov. 26]. The Nicaraguan
application stated in pertinent part that:
The United States of America is using military force against Nicaragua and
intervening in Nicaragua's internal affairs in violation of Nicaragua's
sovereignty, territorial integrity and political independence and of the most
fundamental and universally accepted principles of international law. The
United States has created an "army" of more than 10,000 mercenaries ...
supplied them with arms, ammunition, food and medical supplies, and
Because any court can only be effective if it has cases
before it to decide, there has been much discussion about
compulsory jurisdiction and the need for reforms that would
expand the Court's competence. 6 In light of such discussion, the
natural question is what chance such reforms have of gaining
acceptance in the international community.7 The key to
answering this question lies in the history and structure of
international obligations governing dispute resolution. Although
the behaviour of non-appearing respondents suggests that
rected their attacks against human and economic targets inside Nicaragua
(1943). See also H. KELSEN, PEACE THROUGH LAw (1973) (author's idea of an
international organization headed by a court with compulsory jurisdiction).
7. Another important question is, of course, whether or not the International
Court of Justice, or any other tribunal, could actually keep the peace even if it had
compulsory jurisdiction. See Kunz, Compulsory Adjudication and the Maintenance of Peace,
38 AM. J. INT'L L. 673 (1944) (author makes a strong case against judicial settlement
based on the problem of enforcement, the deficiency of international law rules, and
the difficulty in distinguishing between political and legal questions).
states may ignore their international obligations with regard to
judicial settlement, those obligations are still important. They
demonstrate how the international community feels in the
abstract about international adjudication in the broader
framework of dispute settlement. The obligations show that states
have not created significant commitments to the use ofjudicial
settlement and that the passage of time has not increased their
willingness to submit their disputes to an international
The main current throughout the history of dispute
settlement has been the quest to avoid war as a legitimate means of
resolving interstate controversies. At least in terms of legal
norms, mankind has been successful in this task. The United
Nations Charter contains the key principles. Article 2(3)
requires states to settle "their international disputes by peaceful
means in such a manner that international peace and security,
and justice, are not endangered." 8 Article 2(4) then continues:
"All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." 9
Despite the wide acceptance of the principle of peaceful
settlement as expressed in the Charter, there remains an
important operative issue. What means should states use to
resolve their disputes in order that war can be avoided? The
problem is a fundamental one. The international community
cannot be content with appearances. It is not enough that
peaceful settlement is accepted on paper. In a world where
disputes can cost millions of lives, it is imperative that the
principle of peaceful settlement be given some teeth in the form of
procedures for dispute settlement.
As the narrow declarations under the Optional Clause and
the actions of the non-appearing respondents suggest, any
attempt to structure the procedure of dispute settlement by
making a certain method compulsory will be very difficult.
Moreover, if the method promoted is to be judicial settlement, the
task of introducing compulsion may be impossible.
Throughout their discussions of ways to resolve their disputes, states
8. U.N. CHARTER art. 2, para. 3.
9. U.N. CHARTER art. 2, para. 4.
have almost universally rejected compulsory third party
settlement, be it in the form of arbitration or judicial settlement.
I. EARLY PRACTICE: THE HAGUE SYSTEM AND THE
LEAGUE OF NATIONS
The idea of submitting interstate disputes to a third party
for settlement is not a new one. As early as the time of the
Greek city-states, there existed a relatively well-developed
system of dispute settlement by reference to the Delphic
Amphictyonies. Scholars describe this process as a rudimentary form
of third party settlement based on law and customs of correct
behaviour.1t Elsewhere, the idea of third party settlement is
found in early periods of Middle Eastern history, in the sacred
codes of the Far East, and in the experience of Islam."
Grotius, the father of modern international law, wrote in
1625 with regard to arbitration:
Christian Kings and States are bound to employ this
method of avoiding war. . . And for this reason and many
other purposes, it would be helpful-as a matter of fact,
necessary-for the Christian powers to hold conferences
where those whose interests were not involved might settle
the parties to accept peace on fair termms.'ea2sures to compel
the disputes of the rest, and even take
Although writing in the 1600's, Grotius had examples to cite in
support of his view. In 1176, for example, the Kings of Castile
and Navarre had concluded a treaty to submit their differences
for resolution by Henry II of England, father-in-law of the
former and nephew of the latter. t 3 In addition, the Italian
citystates born during the Renaissance period adopted a practice
of referring their disputes to the Catholic Church in Rome,
which was to judge, not mediate, the differences between the
Modern nation states, particularly the United States and
the United Kingdom, continued this tradition. The signing of
the 1794 Jay Treaty ended the American Revolution and set up
a commission to dispose of the remaining disputes.' 5
Although the commission was composed of United States and
British nationals, not neutral judges, it applied law and
courtlike procedure. 16
Within the United States itself, the idea of international
adjudication grew. In 1834 and 1844, the Massachusetts
legislature passed resolutions urging creation of an international
procedure for the amicable, third party settlement of disputes.
Vermont did likewise in 1852.17
In May 1871, the United States and the United Kingdom
once again chose a form of international adjudication in
setting up the Alabama tribunal through their signing of the
Washington Treaty.' 8 During the Civil War the frigate Alabama had
been particularly successful in preying on Union shipping after
leaving British ports and joining Confederate naval forces.
The Alabama tribunal-composed of one American citizen,
one British citizen, and three neutralsl 9-applied specified
rules of international law and awarded the United States
$15,000,000 damage. 20 Not only did the British pay the sum,
but by 1888 235 members of the British Parliament sent the
United States a communication asking that a permanent
arbitration treaty be negotiated between the two states.2'
Thus, by the 1890's when attention became focused on
the establishment of a permanent world adjudicatory body,22
states had had some experience with third party dispute
settlement. That experience taught them that voluntary arbitration
was not an adequate, impartial means of settlement. 23
Moreover, arbitration had been exclusively on an ad hoc basis. States
had to choose to arbitrate and establish a tribunal each time a
Given these problems, states had begun in the latter half
of the 1800's to include compromise clauses in a number of
international conventions on various subjects, e.g., the
Universal Postal Convention of 1874.24 This trend continued, and
between 1899 and 1914 states entered into 125 treaties
obligating themselves to accept arbitration for certain types of
This flurry of activity in international dispute settlement
reached a high point with the Hague Conferences of 189926
and 1907.27 Tsar Nicholas II of Russia called the 1899
Conference to discuss the rising level of armaments possessed by the
European nations. Armaments in Europe had reached a level
that Russia was unable to match. 28 At the Conference, two
differing points of view emerged with respect to dispute
settlement.29 The first favored the establishment of a more or less
standing court of arbitration that states could use as they
pleased. The second also favored the establishment of an
arbitral body. In addition, it proposed that states should be placed
under an obligation to arbitrate certain types of disputes.
Although third party settlement by arbitration had
become a popular idea, it reached the limits of its appeal when
discussion came to center on the issue of compulsion. The
vast majority of states preferred the idea of a non-compulsory
arbitration institution to that of a tribunal with compulsory
Even the states proposing that some obligation be
included in the First Hague Convention showed their distaste for
truly compulsory arbitration of disputes. For example, United
States Secretary of State John Hay instructed his delegation to
push for a permanent court with compulsory jurisdiction, but
at the same time to make sure that disputes affecting political
independence or territorial integrity be excluded from
arbitration. Only the imagination can define the boundaries that
such a reservation to jurisdiction might have had.
The 1899 Conference produced the Permanent Court of
Arbitration. This court was not really an institutional body at
all. Instead, it was a list of seventy-five to one hundred names
from which states could select arbitrators if and when they
decided to arbitrate a dispute.32 The decision to arbitrate was
purely voluntary, and states were still free to choose their own
nationals as arbitrators.33 While there were as many as fifty
arbitrations handled outside the Permanent Court of
Arbitration between 1902 and 1914, states employed the mechanism
itself only 14 times during the same period.34
Although the Russo-Japanese War of 1905 had made it
clear that the mere existence of the Permanent Court of
tration could not keep the peace, 5 the system created by the
1899 Conference was changed little at the 1907 meeting. In
1907, the United States did propose a permanent judicial
institution with a full-time staff.36 Though they recognized that use
of the Permanent Court of Arbitration was "difficult,
time-consuming, and expensive to set in motion, ' 3 7 most states found
the idea of creating a real, standing tribunal to be too radical.3
Moreover, the idea was rejected due to the insistence of the
powerful states sponsoring it that they have numerical
superiority in judges.
Recognizing, however, that something had to be done to
strengthen the dispute settlement system, states seemed ready
to accept an obligation to arbitrate at least certain legal
disputes. No state, on the other hand, was prepared for truly
compulsory arbitration and a large exception to jurisdiction
had to be made.3 9 Thus, the language of the First Hague
Convention exempting from arbitration disputes "involving vital
interests, independence, and honor" remained in the Second
Hague Convention.4 ° The effort to oblige states to arbitrate
certain disputes was left to an optional protocol which
required arbitration with regard to pecuniary claims and
questions under international conventions covering seven stated
categories of matters.4 1
The obligations resulting from the two Hague
Conventions were, in reality, nothing revolutionary for their time.
Hudson has stated that they only confirmed the existing law of
pacific settlement that states had theretofore been practicing.4 2
Article 1 of the Second Hague Convention required states to
"use their best efforts to insure the pacific settlement of
international differences. ' 4 3 It then recommended that states use
Good Offices and Mediation44 and Commissions of Inquiry45
35. D. FLEMING, supra note 17, at 19.
36. D.J. HILL, THE PROBLEM OF A WORLD COURT 10-14 (1927).
37. M.O. HUDSON, supra note 24, at 80.
38. Patterson, supra note 22, at 283.
39. Waldock, supra note 3, at 256.
41. Id.; see also 2 Actes et documents 136 (1907).
42. M.O. HUDSON, supra note 24, at 5.
43. 2 MAJOR PEACE TREATIES, supra note 27, at 1199.
44. See id. arts. 2-8 (Part II of the Second Hague Convention).
45. See id. arts. 9-38.
"as far as circumstances allow."
recommendations, states used such methods very sparingly. For example,
although elaborate rules were set down for inquiry, states
continued their practice of making only sparing use of this method
of settlement. It was used under the Second Hague
Convention only three times in forty years.46
Article 38 of the Second Hague Convention stated that
arbitration of legal questions, especially those arising under
international accords, was the most effective and equitable
means of settlement. As to an actual obligation to arbitrate,
however, article 38 provided little. It said only that "it would
be desirable that, in disputes about the above-mentioned
questions, the Contracting Powers should, if the case arose, have
recourse to arbitration, in so far as circumstances permit.' '4 7 Article
53 created somewhat of an illusion of compulsory jurisdiction
by specifying, on the one hand, that the Permanent Court of
Arbitration could be invoked by unilateral application. On the
other hand, the same article concluded that "[r]ecourse cannot
• . . be had to the Court if the other party declares that in its
opinion the dispute does not belong to the category of
disputes which can be submitted to compulsory
arbitration. .. . Hudson reports that the severely limited power
of unilateral application under article 53 was never successfully
exercised. 49 In essence, taken as a whole, the Hague
Conventions were not even agreements to arbitrate. 0 Instead, they
featured other methods of dispute settlement, left to states the
power to choose a means of settlement, and failed to provide
truly compulsory arbitration for any disputes.
At the 1907 Conference, two draft conventions were also
discussed and ratified-one for the creation of a Court of
Arbitral Justice 5 and the other for an International Prize Court. 2
Although subsequent discussions took place, both of these
initiatives were doomed to failure. The major powers could not
agree on the law to be applied in the Prize Court, and no
nation ever ratified its convention. With the demise of the Prize
Court, the political prospects for the Court of Arbitral Justice
worsened, and it was never created.53
Outside Europe, the Central American republics also
made some attempts at establishing a functioning means of
third party settlement. For instance, the 1902 Treaty of
Corinto54 provided for the obligatory arbitration of differences
by a permanent tribunal. Although the tribunal was
established, it never rendered an opinion and was considered
nonexistent by 1907. 55 Later, at the Central American Peace
Conference of Washington in 1907, the Central American states
signed a General Treaty of Peace and Amity5 6 as well as a
Convention for the Establishment of a Central American Court of
Justice.57 Although article 1 of the General Treaty required
the states to "decide every difference . . . amongst them, of
whatsoever nature it may be, by means of the Central
American Court of Justice,"'5 8 article 1 of the court's
conventionwhich required states to use diplomatic means before the court
could take jurisdiction-narrowed this broad grant of
The Central American Court ofJustice heard ten cases
between 1908 and 1918. It intervened on its own motion in a
number of circumstances reminding parties of their obligation
to settle disputes peacefully and offering to mediate. 59 The
Court expired ten years after its creation, as per the terms of
its convention. The states involved met and drafted a new
convention in 1923.60 This time, however, they limited the
tribunal's jurisdiction by exempting disputes affecting sovereignty
and the independent existence of states. The convention came
into force, but a new court was never organized. 6'
The coming of World War I in Europe created great
depression among international scholars. 62 So many
international norms and aspirations, including the Hague
Conventions on peaceful settlement, were disregarded by states that
the American Society of International Law passed a resolution
stating, with regard to the war, "the very existence of
international law is now at issue."163 The conflict caused scholars like
Lord James Bryce 64 in Great Britain and Elihu Root 65 in the
United States to work for the establishment of an international
system featuring a court with some measure of obligatory
The League of Nations system which followed the War did
little to live up to these expectations. It focused on the
political rather than judicial settlement of disputes. Once again,
there was to be no compulsory submission of differences to an
international adjudicatory tribunal. Instead, emphasizing
political settlement, article 11(2) of the League Covenant gave
each state a "friendly right" to bring to the attention of the
Council or Assembly any problem which threatened
international peace. 66
Article 12 required that "dispute[s] likely to lead to a
rupture" be submitted either to arbitration, judicial settlement, or
inquiry by the Council. States further agreed to resort to war
only three months after a decision rendered by one of these
processes. Thus, states retained the ultimate power to choose,
on whatever basis they wished, what form of dispute resolution
Article 13 went into more detail on adjudication. First,
60. Id. at 66-67.
61. Id. at 68.
62. Patterson, supra note 22, at 286.
63. Minutes of the Meeting of the Executive Council, April 27, 1918, 1918 AM. Soc'Y
INT'L L. PROC. 14.
64. Patterson, supra note 22, at 287. Lord Bryce worked principally on defining
legal and political questions for use in determining an international court's
65. 2 P. JEssUP, ELIHU ROOT 315-19 (1938).
66. LEAGUE OF NATIONS COVENANT art. 11, para. 2.
paragraph 1 specified that disputes which state's "recognize" as
suitable for arbitration and judicial settlement-and which are
not settled diplomatically-be referred to arbitration or
judicial settlement. 67 Furthermore, it stated that treaty
interpretation, factual questions, and reparations were considered
"generally suitable for submission to arbitration" or judicial
settlement.68 Lastly, paragraph 3 required that such disputes be
referred to the Permanent Court of International Justice or
"the Court agreed on by the parties. ' 69 While article 13 seems
to provide for some mandatory adjudication, in reality, it left
states free to select tribunals other than the Permanent Court,
including arbitral bodies, to submit only the disputes in
paragraph 2 to adjudication, and to avoid adjudication altogether
through the use of diplomatic settlement.
Article 15 underlined the ultimate political nature of
settlement in the Covenant. 70 It stated that any dispute not
submitted to arbitration or judicial settlement under article 13 was
to be decided by the Council. The Council, a political
institution, was therefore the one body to which states could always
appeal. In fact, the League Covenant did not even create a
judicial body. Article 14 said only:
The Council shall formulate and submit to the Members of
the League for adoption plans for the establishment of a
Permanent Court of International Justice. The Court shall
be competent to hear and determine any dispute of an
international character which the parties thereto submit to it.
The Court may also give an advisory opinion upon any
disspeumtebloyr. 7q'uestion referred to it by the Council or by the
AsEven this mention of a court was absent in Woodrow
Wilson's draft of the Covenant. He strongly resisted any
suggestion of a court and refused even to appoint any supporter of
the idea to the Paris Peace Conference delegation, with the
exception of his Secretary of State who had to attend. 72 The
Brit67. LEAGUE OF NATIONS COVENANT art. 13.
68. LEAGUE OF NATIONS COVENANT art. 13, para. 2.
69. LEAGUE OF NATIONS COVENANT art. 13, para. 3.
70. See LEAGUE OF NATIONS COVENANT art. 15.
71. LEAGUE OF NATIONS COVENANT art. 14.
72. Patterson, supra note 22, at 290.
ish draft similarly contained no reference to a court.73
Although the French, Danes, Norwegians, and Swedes placed a
court in their drafts,7 4 they made no attempt to secure
compulsory submission of disputes to an international tribunal.75
Article 14 of the Covenant, as seen above, clearly refers to
court jurisdiction with regard to "dispute[s] of an international
character which the parties thereto submit to it.' '7 6 Lord Robert
Cecil had proposed that article 14 give the Permanent Court
jurisdiction over "any dispute or difference of an international
character. ' 77 However, since such wording was considered to
point toward obligatory use of the Permanent Court, the
League of Nations Commission omitted it from the text of
In 1920, the Council exercised its duties under article 14
and invited jurists from ten nations to draft the Permanent
Court Statute, which states would be free to accept or reject.79
The Statute was not to be an integral part of the League
Covenant. Two major problems faced this 1920 Advisory
Committee: the election of judges and the jurisdiction of the new
court. The first was solved by the existence of the League
itself. To please both small and large states, it was decided that
the Council and Assembly would jointly elect the judges8. 0
The jurisdictional issue was more difficult. The majority
of the Advisory Committee favored conferring compulsory
jurisdiction on the Permanent Court.8" A minority, pointing to
the wording of article 14 of the Covenant, felt that jurisdiction
must be based purely on consent.82 Elihu Root of the United
States warned that unless compulsory jurisdiction was limited
to certain areas, states would not accept the Statute. 83 The
ma73. M.O. HUDSON, supra note 24, at 93-94.
74. Id. at 94.
75. Id. at 94-95.
76. LEAGUE OF NATIONS COVENANT art. 14.
77. M.O. HUDSON, supra note 24, at 106.
79. Id. at 114-15. Japan, Italy, Spain, Brazil, Belgium, France, United States,
Norway, Netherlands, and Great Britain were represented. Id. at 114. The
Committee met 35 times between June 16 and July
80. D. FLEMING, supra note 17, at 37.
81. M.O. HUDSON, supra note 24, at 190.
83. Id. at 190-91.
jority carried the day and the Advisory Committee draft gave
the Permanent Court obligatory jurisdiction over the disputes
listed in article 13 of the Covenant, that is, disputes over treaty
interpretation, facts, and reparations8. 4 Such a decision was
not totally revolutionary. States had at least recognized these
subjects as suitable for adjudication through their arbitral
practice and the Hague Conventions. 5
Revolutionary or not, the decision to confer some
measure of obligatory jurisdiction met tremendous resistance from
the Great Powers in the Council. Italy noted, for example, that
only small countries would tolerate being taken before a court
without their consent.8 6 Great Britain and Japan opposed the
Committee recommendation on the basis of the consensual
nature of article 14 of the Covenant. 87 Behind the leadership of
Great Britain, the Council voted a series of amendments to
eliminate compulsory jurisdiction in the Committee
Smaller countries objected in the Assembly. Supported by
Brazil, Panama, and Portugal, Argentina argued that without
compulsory jurisdiction the Permanent Court would be
nothing more than an arbitral tribunal8. 9 However, an Assembly
sub-committee saw the uselessness of pushing for compulsory
jurisdiction in the face of the opposition of the larger powers
and finally decided to approve the Council amendments.9 0 Mr.
Fernandes of Brazil ultimately resolved the conflict by
suggesting that alternate texts be offered. States would then be
able to adhere to the jurisdictional clause that they liked best.9'
As a result of his suggestion, the Council drafted the Optional
Clause to allow states to accept jurisdiction,9 2 if they so
desired, as well as to allow them to make reservations to limit
their acceptance of the Court's competence.
After the creation of the League of Nations and the
Permanent Court, the League Assembly in 1924 drafted a
protocol for the Pacific Settlement of International Disputes.93 The
object was to make more attractive the possibility of
declarations under the Optional Clause while at the same time
preserving for states "the reservations which they regard as
indispensable."'9 4 The Ninth Assembly continued this work and the
emphasis on the use of reservations to reduce the scope
ofjurisdiction under the Optional Clause. 95 The result was the
Protocol on the Pacific Settlement of International Disputes of
192896 which provided for Permanent Court jurisdiction in
certain disputes, but only after conciliation and negotiation
had failed to resolve a problem. No case was ever brought
before the Permanent Court on the basis of the General Act.
Also during this period, states drafted and signed the
famous Kellogg-Briand Pact in Paris. 97 This 1929 treaty was the
first to prohibit generally the making of aggressive war. Article
2 of the Pact stated the agreement of the parties that
"settlement . . . of all disputes or conflicts of whatever . . . origin
they may be . . . shall never be sought except by pacific
means." 98 The Pact failed, however, to confer any jurisdiction
on the Permanent Court or to specify any obligations as to the
type of dispute resolution states were supposed to use.99
II. THE UNITED NATIONS CHARTER AND
States were not strangers to the idea of adjudication or
judicial settlement when they sat down to decide upon a
postWorld War Two international organization. Apart from the
tradition of ad hoc arbitrations and the Hague Conventions,
states had seen the creation of the Permanent Court under the
League of Nations system. What they had not experienced, on
the other hand, was any true limitation on their ability to
choose between methods of dispute settlement.
Like arbitration under the Hague Conventions, judicial
settlement under the League of Nations framework had been
purely optional. States were not bound to accept the
Permanent Court's Statute. If they did accept it, they were by no
means obliged to make declarations under the Optional Clause
or bring cases before the Permanent Court for resolution.
The United Nations Charter changed this status ofjudicial
settlement in only one significant way. Under article 92, the
International Court of Justice is an organ of the United
Nations and is therefore part of the international organization
itself.'0 0 This change means that a state ratifying the Charter
automatically accepts the jurisdiction of the Court in three
limited ways. The Statute gives the Court jurisdiction with regard
to decisions concerning interim measures, intervention, and
competence in a particular case.' 0 ' However, states are in
reality subject to very few jurisdictional constraints merely by
virtue of their acceptance of the Court's Statute. They are still
totally free to refrain from making declarations under the
Optional Clause and to ignore the Court as a means of dispute
The Charter does not encourage international
adjudication. Instead, it continues the focus on political settlement and
the Court is routinely by-passed in favor of the Security
Council and the General Assembly.10 2
To be sure, the Charter requires states to settle their
disputes "by peaceful means, and in conformity with the
principles ofjustice and international law . . . .,103 In addition,
article 2(3) reiterates the duty of peaceful settlement and article
2(4) places a ban on the use of force. The Charter does not,
however, give the Court a major role in relation to these
Article 24 confers "primary responsibility for the
maintenance of international peace and security" upon the Security
Council, not the Court. In addition, article 33(1) gives states
an absolutely free hand in deciding how to resolve their
Although it is clear that states must choose some form of
peaceful dispute settlement, the framers of the
Charter-following the tradition they had before them-thought it wise to
gives states as wide a choice as possible among methods
including negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means.1 5
Where the Charter does express some preference for a
particular method of settlement, that method is political.
Expressing confidence in political resolution of disputes, article
37(1) requires that a failure to reach a solution by one or all of
the means listed in article 33 results in an obligation to refer
the dispute to the Security Council.106 In addition, even
before negotiations or mediation fail, any state, whether a
cial settlement. The dispute machinery of the Charter provides a new arena
for diplomatic exchanges and the advancement of legal arguments without
fear of a final determination upon their validity.
103. U.N. CHARTER art. 1, para. 1.
104. U.N. CHARTER art. 33 para. 1. This article states:
The parties to any dispute, the continuance of which is likely to endanger
.. .international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful means
of their own choice.
sion" in the framework of peaceful dispute resolution.
However, these appraisals seem a bit too drastic because they imply
that before the advent of the United Nations system there
existed more binding obligations with regard to peaceful
settlement and adjudication. The research conducted here has been
unable to find any such obligations. In reality, the United
Nations experience has been a continuation of the emphasis on
political settlement and the avoidance of obligatory
adjudication. These trends were already established in the Hague
Conventions and the League of Nations Covenant. States are now,
as they were in the past, free to choose the means of settlement
which suit them best. Large states in 1945 successfully
opposed compulsory jurisdiction for the world's major judicial
organ, just as they had done in 1920. The International Court
ofJustice, like the Permanent Court before it, operates under a
scheme which permits states to reject wholly, or accept subject
to reservations, its jurisdiction. Therefore, while the Charter
does not represent a leap forward in international
adjudication, it does nothing to weaken the already precarious position
ofjudicial settlement in international relations. If there is
"retrogression" it is only in the sense that progress toward more
binding dispute settlement was not made in drafting the
III. THE CURRENT STATUS OFJUDICIAL SETTLEMENT
Under the United Nations system described above, few
states refer disputes to the International Court of Justice for
resolution. In terms of practice, there is certainly no custom of
executing a compromis when a dispute arises. In fact, there has
actually been a decline in the use of special agreements for
jurisdiction. While the Permanent Court adjudicated eleven
cases by compromis in twenty years, the present Court has had
only seven such cases in the last forty years. 128
Moreover, although there are currently 244 bilateral and
multilateral treaties which confer some measure ofjurisdiction
on the Court, 129 relatively few cases have been brought using
these treaties as a source of jurisdiction. 0 The vast majority
128. 16 P.C.I.J. Ann. R., ser. E. No. 16, at 2; 1983-1984 I.C.J.Y.B. 45 (1984).
129. 1983-1984 I.C.J.Y.B. 92-108 (1984).
130. Since 1970, for example, applicants have commenced only four cases in
236 FORDHAM INTERNATIONAL LA WJOURNAL
of these treaties are subject matter specific, e.g. the
Constitution of the International Rice Commission of 1961.'~'
Jurisdiction exists under these treaties only with regard to
controversies related to the particular subject matter involved. This
limited scope of jurisdiction may explain the few cases which
have been brought under these agreements. It is interesting to
note that when the United States in the Iranian Hostages case
and Nicaragua in the Case ConcerningMilitary and
ParamilitaryActivities In and Against Nicaragua tried to raise treaties of
friendship as bases ofjurisdiction, the respondents involved objected
to the use of those treaties in such a way. 132
A. The Quantity and Quality of Declarations Under
the Optional Clause
The practice under the Optional Clause has confirmed the
fact that relatively few states are inclined to use the Court. In
1938, forty of the fifty-two member states of the League of
Nations had declarations under the Optional Clause of the
Permanent Court. 33 In 1947, the number of states with
declarations under the new Statute had decreased to twenty-five. 134
Five years later, in 1952-1953 when sixty nations belonged to
the United Nations, the number of declarations had increased
only to thirty-six.' 35
During the late 1950's and early 1960's, membership in
the United Nations blossomed to 110 states. By 1962-1963,
however, only thirty-seven nations, including Switzerland,
Liechtenstein, and San Marino which are not United Nations
members, had Optional Clause acceptances. 136 Ten years
later, in 1973, 132 states belonged to the United Nations but
the acceptances of the Court's jurisdiction totalled only
fortysix.' 37 Thus, while over eighty percent of the member states of
the League of Nations had declarations in 1938, only about
thirty-five percent of United Nations members had Optional
Clause acceptances in 1973. In the past decade or so, the
trend has remained much the same. In 1983-1984, the last
year for which data is available, only forty-four out of 157
United Nations member states, about twenty-one percent, had
declarations of acceptance.13 8
The make-up of the forty-seven declarants, the forty-four
United Nations members plus Switzerland, Liechtenstein, and
San Marino, gives some idea of which of the world's blocs
accept jurisdiction-if only partially-and which have rejected it
totally. There are eighteen states which are commonly
considered among the Western or Developed World. 139 The Third
World is represented by twenty-nine states. 140 Cambodia is
the only communist nation to have an acceptance, which dates
from its non-communist period, before 1957. Absent from the
rolls of Optional Clause states are all Communist countries,
excluding Cambodia, and other important nations such as
France, Argentina, Brazil, and Italy. Of the Security Council's
members, only Great Britain now has a declaration. Thus,
there is not a system ofjurisdiction under the Optional Clause
which includes even a majority of the most powerful states of
the world. Moreover, since 1951, key states such as Brazil,
China, France, Iran, South Africa, Turkey, and most recently,
the United States have actually cancelled their acceptances or
allowed them to lapse without renewal.
These statistics and the absence of powerful states tell
only part of the story. The quality or scope of the jurisdiction
which exists by virtue of the declarations that are made is
severely hampered by reservations and conditions. For example,
of the forty-seven acceptances of the Optional Clause
twentyfive are terminable immediately upon notice.' 4 1 Six states have
included multilateral treaty reservations similar to that which
the United States raised in its case with Nicaragua. 42 Seven
states exclude any case brought by a state with a declaration
made less than one year before the filing of the application.143
In addition, nineteen states exclude matters considered within
their domestic jurisdiction from the Court's competence. 44
Among these nineteen declarations, there are five
Connallytype reservations with regard to domestic jurisdiction. 145
Finally, nine British Commonwealth nations include reservations
prohibiting the bringing of cases against one another. 146
Apart from the common types of reservations and
conditions shared by declarations, there has been no hesitation for
states to draft their acceptances with particular exceptions.
For instance, Barbados, New Zealand, El Salvador, Canada,
and the Philippines exclude different issues relating to sea
conservation, pollution, and territorial limits. 147 Egypt confers
jurisdiction only with regard to matters concerning its operation
of the Suez Canal.'4 8 El Salvador excludes questions arising
out of armed hostilities; 49 Malawi similarly reserves questions
relating to "belligerent or military occupation."' 50 Israel
limits her declaration by excluding cases brought by states which
do not recognize her, cases concerning matters between 15
May 1948 and 20 July 1949, and any case concerning armed
hostilities.151 India's declaration purporting to accept
jurisdiction for all disputes actually excludes matters of self-defense,
cases brought by a party with a declaration less than one year
old, cases commenced by states with which India has no
diplomatic relations, all territorial disputes, and any case based on
facts arising before the making of the declaration in 1974.152
Such exceptions effectively nullify any acceptance of
An analysis of the reservations under the Optional Clause
shows that only twenty-three out of the forty-seven states have
made full, significant acceptances of the Court's jurisdiction.
These acceptances may be termed "full" in the sense that they
are not immediately terminable by their own provisions nor do
they contain the types of narrowing reservations described
above. Of these twenty-three states, twelve are from the
Western or Developed World and eleven come from the group of
states normally considered the Third or Underdeveloped
World. 53 Of course, it must be remembered that whenever
one of these states is faced with a case brought by a state whose
declaration contains reservations, those reservations can block
the application on the basis of reciprocity. Therefore, in the
final analysis, it is only between these twenty-three nations of
the world that any form of significant jurisdiction exists for the
Court under the Optional Clause.
General Assembly Resolutions and the Views of States
The hesitation on the part of states to make Optional
Clause declarations and the large number of sweeping
reservations are strong evidence of the real views held by states on the
usefulness of judicial settlement in international relations. 54
Other evidence as to the place of adjudication in dispute
settlement is found in the resolutions and discussions of the United
Nations General Assembly.
In 1947, the General Assembly passed a resolution asking
that the United Nations organs use the Court more often for
advisory opinions. In addition, the resolution directed the
attention of states to the Optional Clause and recorded "as a
general rule that states should submit their legal disputes to
the International Court ofJustice."' 155 This language was to be
by far the strongest endorsement ofjudicial settlement ever to
come from the General Assembly. In 1949, the General
Assembly went on to update the General Act of 1928156 by
changing its references to the Permanent Court into provisions
regarding the International Court of Justice. 57 The changes
were met with a frigid response by the international
community. Only seven states have ever adhered to the revised
version of the General Act.' 58
The lack of enthusiasm on the part of states in the General
Assembly for judicial settlement reached an all-time high in the
1970 Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation Among States (1970
Declaration).' 59 It emphasizes the right of states to choose a
suitable means of resolving disputes and provides that parties
will agree upon such peaceful means as may be appropriate to
the circumstances and the nature of the dispute. International
disputes are theoretically settled on the basis of the sovereign
equality of states and in accordance with the principle of free
choice of means. 6 ° The effort to include a reference to the
Court in the 1970 Declaration failed even though sponsors
asked only for language recommending that legal disputes be
submitted to the Court. 16 1 Opposing states felt that no
ence to the Court should be made because the Charter gives
no priority to judicial settlement and because the Court had
not yet established itself as a trustworthy decision-maker. 162
During the drafting of the document, all states recognized the
importance of freedom to choose between means of dispute
settlement. It was felt that states cannot and should not try to
decide in advance which method will be used to settle their
Finally in 1974, the General Assembly managed to express
a little more confidence in judicial settlement by reaffirming
that recourse to the Court should not be considered an
unfriendly act. As to the actual use of the Court, however,
delegates could muster only lukewarm language. Their resolution
stated only the "desirability that states study the possibility of
accepting with as few reservations as possible" the Optional
Perhaps no situation better underscores the hostility of
some states toward judicial settlement and the Court than that
surrounding two resolutions passed by the General Assembly
in 1970 and 1971.165 The object of these resolutions was to
persuade states to respond to a questionnaire as part of a
proposed review of the role of the Court. The idea of even
reviewing the Court's role was strongly opposed by Socialist and
some Third World states.
Basically, Western countries and their allies supported the
idea. Underscoring the potential importance of the Court in
dispute settlement, Japan spoke in favor of the review. 166
Denmark, lamenting the exclusion of the Court from the 1970
Declaration, maintained that judicial settlement was a "natural
means" of dispute resolution. 167 Belgium supported the
review noting that resort to judicial settlement was not
inconsis162. Id. at 57.
163. Id. at 52.
164. G.A. Res. 3232, 29 U.N. GAOR Supp. (No. 31) at 141, U.N. Doc. A/9846
165. G.A. Res. 2723, 25 U.N. GAOR Supp. (No. 28) at 128, U.N. Doc. A/8238
(1970); G.A. Res. 2818, 26 U.N. GAOR Supp. (No. 29) at 137, U.N. Doc. A/8568
166. Minutes of the Meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1210th mtg) at 189, U.N. Doc. A/C.6/SR.1210 (1970). (Mr. Tsuruoka).
167. Id. (Mr. Fergo).
tent with sovereignty. 6 ' The Netherlands focused on the role
of the Court in resolving legal disputes.' 69 France pointed out
the need for acceptance of the Optional Clause with as few
reservations as possible.170 Mexico, noting the need to find ways
to persuade states to make Optional Clause acceptances, also
supported the review of the Court. 17 1 India, Italy, the United
Kingdom, Australia, Norway, Madagascar, Pakistan, the
Philippines and the United States all spoke in favor of the review and
ways of getting states to use the Court. 72 Sweden made the
strongest argument for adjudication claiming that methods of
settlement under article 33 of the Charter are not equal, that
binding means such as arbitration and judicial settlement are
more important, and that states must accept compulsory
jurisdiction as soon as possible.' 73
Of course, these statements by Western nations and their
must be weighed against reality. It was the West that
dominated the post-war period and the drafting of the United
Nations Charter which relegates judicial settlement to a minor
role. As noted, only nineteen Western states have made
Optional Clause declarations, many with substantial reservations.
The United States is a good example. Given its opposition to
compulsory adjudication in 1945, the sweeping reservations in
its Optional Clause acceptance, 74 its decision to boycott the
proceedings initiated by Nicaragua, and its termination of
acceptance under the Optional Clause, the United States cannot
be considered a strong supporter of international adjudication.
As Lissitzyn has concluded, Western powers have not
distinguished themselves by strong leadership in favor of greater use
of the Court. 175
Every Socialist country which spoke with regard to the
proposed review of the Court clearly opposed any attempt to
enhance the role of judicial settlement. The Soviet Union
maintained that the Court was an "irrelevant organ" subject to
the biased influence of "certain forces." It further noted that
any enlargement of the Court's activities or importance would
undermine the Charter, particularly if it involved compulsory
jurisdiction which could not be imposed on sovereign states.' 76
The USSR made it clear that a change in the Court's role
would require amendment of the Charter and would in no
event be tolerated. 77 Soviet leaders have generally taken a
negative attitude toward referral of disputes to adjudication
and have opposed all attempts to expand the Optional
In general, the influence of the Soviet bloc has been
strongly against the extension of the judicial function in
international relations. 79 The Socialist response in this case
continued the trend. Poland urged that states not exaggerate the
role of the Court. 8 0
The Byelorussian Socialist Republic em
phasized the incompatibility of sovereignty and judicial
settlement as well as the freedom of choice of means.' 8 ' Romania,
Hungary, Bulgaria, the Ukranian Socialist Republic, and Cuba
all underlined the dangers to "sovereign equality" of
empowering the Court with broad jurisdiction. 8 2 In particular,
Czechoslovakia noted that compulsory jurisdiction would make
the Court a supra-national organ more powerful than the
Security Council. 83 Hungary, summing up the feelings of the
Socialist world, maintaiued: "[a]s long as the principle of the
sovereign equality of States applied, the Court could play only
an auxiliary role in the peaceful settlement of disputes."' 8 4
The Third World took what might be called a pragmatic
approach to the Court and judicial settlement. While Algeria
and Nigeria emphasized the need for judicial settlement, 8 5
Liberia noted that the fight over the Court and over jurisdiction
was mainly a political one: the large states, namely the United
States and the Soviet Union, had always opposed it. 186
Ethiopia agreed, noting that as long as the bigger powers continued
to keep their vital interests from judicial settlement, the Court
would remain a marginal institution. 8 7 Kenya asserted that
wide and reasonably unqualified acceptances of the Optional
Clause were in order, but the older, larger states must take the
lead in making such declarations. Kenya and a number of
180. Minutes of the meetings of the Sixth Committee, 26 U.N. GAOR C. 6
(1277th mtg) at 178, U.N. Doc. A/C.6/SR.1277 (1971) (Mr. Klafkowski).
181. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C. 6
(1214th mtg) at 210-211, U.N. Doc. A/C.6/SR. 1214 (1970) (Mr. Shardyko).
182. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1217th mtg.) at 227, U.N. Doc. A/C.6/SR.1217 (1970) (Mr. Secarin); id. at 228 (Mr.
Prandler); id. at 229 (Mr. Kostov); 25 U.N. GAOR C.6 (1218th mtg.) at 234, U.N.
Doc. A/C.6/SR.1218 (1970) (Mr. Makarevich); 29 U.N. GAOR C.6 (1467th mtg.) at
18, U.N. Doc. A/C.6/SR. 1467 (1974) (Mr. Tabio).
183. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1216th mtg) at 224, U.N. Doc. A/C.6/SR.1216 (1970) (Mrs. Slamova).
184. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1217th mtg) at 228, U.N. Doc. A/C.6/SR. 1217 (1970) (Mr. Prandler).
185. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1216th mtg.) at 223, U.N. Doc. A/C.6/SR. 1216 (1970) (Mr. Boulbina and Mr.
186. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1226th mtg.) at 273, U.N. Doc. A/C.6/SR. 1226 (1970) (Mr. Brewer).
187. Minutes of the meetings of the Sixth Committee, 25 U.N. GAOR C.6
(1216th mtg.) at 222, U.N. Doc. A/C.6/SR. 1216 (1970) (Mr. Kibret).
other Third World states pointed out deficiencies in the Court,
such as the traditional procedure and law applied,
dissatisfaction with recent decisions, and the cost of litigation. These
deficiencies were cited as reasons for not accepting judicial
settlement at the present time."
In general, the Third World has shown at best a guarded
enthusiasm for judicial settlement."8 9 Only twenty-nine Third
World states have Optional Clause declarations.' 0 Moreover,
these states join all the Socialist powers and most Western
states in emphasizing both the freedom of states to choose
what means of dispute resolution should be used in a
particular situation and the consensual basis of all adjudicatory
Other Treaties and Instruments Governing Dispute Resolution
The generally negative attitude that all three blocs have
taken with regard to judicial settlement is also found in
instruments outside the United Nations system. In setting up
various types of relationships, states have generally avoided any
significant use ofjudicial settlement. For example, several
important codification conventions' 9' contain no clause for the
use of judicial settlement in the event of disputes over legal
interpretation. Under the Geneva Conventions on the Laws of
the Sea of 1958,192 the Vienna Convention on Diplomatic
Relations of 1 9 6 1 ,'93 the Vienna Convention on Consular
Relations of 1963,19' the Convention on Consent to Marriage of
1962,195 the Human Rights Convenants of 1966,196 and the
Convention on Special Missions of 1969,197 there exists
nojurisdictional grant to the Court. 98 Instead, dispute settlement
by reference to the Court is left to optional protocols.' 9 9
Similarly, while articles 66(a) and (b) of the Vienna
Convention on the Law of Treaties do allow parties to a dispute
overjus cogens 200 to submit the question to the Court, they do
so only after twelve months have passed, after the means in
United Nations Charter article 33201 have failed to resolve the
problem, and subject to the parties' power to choose
arbitration.2 0 2
In the North Atlantic Treaty of 1949,203 the NATO
partners agreed to settle disputes by peaceful means but made no
commitment to judicial settlement. Although a 1956 North
Atlantic Council resolution requires settlement by good offices
within the NATO framework before resort to any other
international agency, it exempts legal disputes from this rule. They
can be directly submitted to a judicial tribunal.20 4 There is,
however, no particular tribunal endowed by the resolution
with jurisdiction for this purpose.
The 1948-1950 amendments to the General Act of 1928
reproduced in substance the original document requiring
mission of disputes of all kinds of conciliation committees.2 °5
In addition, by virtue of article 17, disputes can be referred to
the International Court ofJustice subject to reservations made
by states and only in the event the parties do not choose an
arbitration tribunal.20 6 Article 39 permits wide reservations to
exclude disputes concerning facts prior to a state's accession,
questions of domestic jurisdiction, and disputes in certain
types of subject matters and categories as defined by states.20 7
In the European Convention for the Peaceful Settlement
of Disputes of 1957,208 states bound themselves to submit all
treaty disputes, questions of international law, and questions
of fact or reparations to the International Court of Justice.20 9
Article 3 requires that all other disputes be settled by
conciliation or, if that fails, by arbitration. 21 0 According to article 28,
these requirements do not apply to disputes that the parties
agree to submit to any other form of settlement. Parties are
free to choose other means as long as the disputes mentioned
in article 1 are settled by a procedure with a binding
decision.21 ' Thirteen countries have signed and ratified the
The Charter of the Organization of American States2 13
(O.A.S. Charter) similarly gives states free choice of means.
Article 21 lists direct negotiation, good offices, mediation,
judicial settlement, conciliation, inquiry, arbitration, and any
other method the parties choose as possible means of
settlement.214 The Pact of Bogota (Pact)2t5 is part of the O.A.S.
Charter by virtue of article 26.216 In the Pact, parties agree to
205. Revised General Act for the Pacific Settlement of International Disputes,
Apr. 28, 1949, 71 U.N.T.S. 101.
206. Id. art. 17.
207. Id. art. 39.
208. Apr. 29, 1957, 320 U.N.T.S. 243.
209. Id. art. 1.
210. Id. art. 4.
211. Id. art. 28.
212. Austria, Belgium, Denmark, GFR, Italy, Liechtenstein, Luxembourg, Malta,
Netherlands, Norway, Sweden, Switzerland, United Kingdom. 2 P. ROHN, WORLD
TREATY INDEX 875 (1983).
213. Charter of the Organization of American States, Apr. 30, 1948, 119
214. Id. art. 21.
215. American Treaty on Pacific Settlement, Apr. 30, 1948, 30 U.N.T.S. 55.
216. Id. art. 26.
use peaceful means to settle their differences before going to
the United Nations Security Council.21 7 The Pact specifies
good offices and mediation, 21 8 inquiry and conciliation, 2
"judicial settlement,220 and arbitration. 22 ' Article 3 gives states the
ability to choose between these methods.22 2 Recourse to the
International Court of Justice under chapter 4 is based on the
Optional Clause declarations of the states (the Pact itself does
not create an independent base of jurisdiction) and is only
available in the event there has been no agreement to arbitrate
and no solution has been found through conciliation.223
By contrast, there is no mention whatsover of judicial
settlement or the Court in the Charter of the Organization of
African Unity. 224 Under article 19, all members commit
themselves to the peaceful settlement of disputes and to the
establishment of a Commission of Mediation, Conciliation, and
Arbitration. 221 A protocol enacted to bring this Commission
to life provides procedures for mediation, conciliation, and
arbitration. 26 Article 19 of the protocol guarantees states the
right to choose the means of dispute settlement they prefer.227
The Convention on the Settlement of Investment Disputes
of 1966228 established an International Centre for the
Settlement of Investment Disputes. The Centre is designed to
operate through the written consent of the parties involved and on
the basis of conciliation or arbitration. 229 There is no
provision for judicial settlement.
Creating the exception to the non-use of judicial
settlement, the Europeans have taken the unique step of forming
specialized courts with limited jurisdiction in various contexts.
For instance, the European Convention for the Protection of
Human Rights and Fundamental Freedoms 2 0 created the
European Court of Human Rights. However, it left to states the
ultimate decision as to whether or not to accept the
competence of the Court.23 States are permitted to accept only on
the basis of reciprocity should they so desire.23 2 A similar but
more binding arrangement was used in creating the European
Court ofJustice. It has been charged with compulsory
jurisdiction over questions under the European Coal and Steel
Community Treaty, the Euratom Pact, and the European Economic
Community Treaty.2 3
This use ofjudicial settlement by the Europeans is the
exception, not the rule. Their use of adjudication can be
attributed to their common cultural backgrounds and, more
importantly, to their need for authoritative interpretation of
important economic instruments. The European Community is a
fact of life which touches millions of European citizens and
businesses every day. Questions cannot go without resolution.
Compulsory jurisdiction and judicial settlement ensure that
questions of Community law do not go unanswered and that
economic instruments can be interpreted on the basis of a
stream of consistent jurisprudence. In addition, it must be
remembered that the European Court of Justice is not just a
smaller version of the International Court ofJustice. Its
jurisdiction is strictly limited to matters arising under the treaties
establishing the various European Communities.234 Moreover,
although cases are often as highly political and emotional as
one can imagine, states rarely bring actions against one
Even in the European context, judicial settlement has
limits. The European Court of Justice is undoubtedly highly
respected in its interpretation of the Community's economic
instruments. However, the European Court of Justice was not
consulted in 1966 when France decided to abstain from further
230. Convention on the Protection of Human Rights and Fundamental
Freedom, Nov. 4, 1950, 213 U.N.T.S. 221, art. 19.
231. Id. art. 46(1).
232. Id. art. 46(2).
233. See Convention Relating to Certain Institutions Common to the European
Communities, 1973 Gr. Brit. T.S. No.1 (5179-11), 289 U.N.T.S. 269.
234. See, e.g., infra note 235.
participation in the European Economic Community due to a
dispute over voting. The procedure for voting on the
financing of the Community's massive Common Agricultural Policy
was scheduled to change in that year from a unanimity to a
majoritarian system. France, fearing adverse changes in the
policy, argued that unanimity should be preserved and
boycotted its Community obligations creating perhaps the most
serious crisis in the Community's history. Although France
was, at the very least, arguably in violation of her obligations
under the Treaty of Rome, no other member state challenged
her in the European Court ofJustice. Instead, recognizing the
vital interests involved, the Europeans set about finding a
resolution to the crisis through political negotiations which
ultimately resulted in the Luxembourg Accords. 235
In 1979, the Andean Pact nations adopted the European
Community approach and signed a treaty establishing a Court
ofJustice to settle their differences.23 6 The Court is one of the
principal institutions of the Cartagena Economic Agreement.
The jurisdiction of the Court is therefore limited to
challenging actions of the executive authority of the Cartagena
community and the non-compliance of member states.237 Article 1
makes it clear that the Court does not have competence to rule
on questions outside the Cartagena framework.238
Finally, in the Law of the Sea Convention, 239 states
expressed what was perhaps the greatest unity of opinion on
judicial settlement in history. All states, even the Soviet Union
and Eastern Europe, agreed that the compulsory jurisdiction
of an international tribunal was necessary.240 Consequently,
article 286 of the Convention reads:
Subject to section 3, any dispute concerning the interpreta
tion or application of this Convention shall, where no
settlement has been reached by reference to section 1, be
submitttreidbuantathleharveiqnugesjutroisfdaincytiopnartuyndtoerthtehidsisspecuttieonto. 2t4h1e court or
As the wording of article 286 suggests, however, there was
a price for the agreement on compulsory jurisdiction.242
Section 3, to which the use of judicial settlement is subject,
automatically excludes from jurisdiction any dispute relating to the
exercise of "sovereign rights" by a coastal state within its
maritime zone.2 43 Moreover, it provides that states may, at their
option, exclude from adjudication military activities at sea and
law enforcement within the coastal zone 24 4 as well as disputes
over the delineation of boundaries. 245 This last subject,
boundary disputes, was considered particularly appropriate for
judicial procedures. However, so many states felt that judicial
settlement would infringe on sovereignty in this area that the
possibility for reservations was created in order to secure
Another concession made in order to get agreement on
judicial settlement was flexibility in the choice of tribunal.
States can choose to submit differences to the International
Court ofJustice, the Law of the Sea Tribunal, or an ad hoc
arbitration.247 Without such flexibility, adjudication would play a
much smaller role in the Convention than it now does.2 4 8 In
any case, the recourse to judicial settlement under article 286
is limited by the parties' power in section 1 of the chapter on
dispute settlement to choose any other means of settlement
they desire, including direct negotiations and conciliation.249
241. Convention on the Law of the Sea, supra note 239, art. 286.
243. Id. art. 297.
244. Id. art. 297(1).
245. Id. art. 298(a).
246. Janeicke, supra note 240, at 819.
247. Convention on the Law of the Sea, supra note 239, art. 287(1).
248. Janeicke, supra note 240, at 823.
249. Convention on the Law of the Sea, supra note 239, art. 286.
IV. EXPLAINING HOSTILITY TOWARD JUDICIAL
Any number of reasons can be advanced to explain the
hostility of states toward international adjudication. States
themselves have not hesitated to explain their dislike. The
Socialist states have been clear in their position that judicial
settlement on a compulsory basis is incompatible with
sovereignty. The idea is that if and when a court can force states to
present their disputes, the right of choice in foreign affairs will
be non-existent and sovereignty thus violated. The Soviet
Union's stand against judicial settlement is thus based on the
principle of equality of sovereigns. 25" The United Nations is a
voluntary organization. If it were compulsory, it would have
the characteristics of a supra-national body and would rob its
members of their sovereignty. 25' The same is said to be true of
the compulsory settlement of disputes by a court.252
The opposition of the Third World is less theoretical.
Although Northrop explains the Third World reluctance on
the basis of its cultural and religious differences with the
Western world,253 Sohn, Stone, and Anand have shown that the real
reasons lie elsewhere.254 The Third World's heavy reliance as
debtor upon the West, 2 55 the remoteness of the Court and lack
of international law expertise,256 and tthhe fear of losing cases on
political grounds 257 better account for the Third World's
reluctance to dive headlong into judicial settlement. For these
countries, the law with regard to important issues such as
nationalization, sea bed use, and collective defense is still in a
developing stage. 258 Therefore, there are not adequate rules
250. I. LAPENNA, CONCEPTIONS SOVIETIQUES DE DROIT INTERNATIONAL PUBLIC
252. See supra notes 177-84 and accompanying text.
253. NORTHROP, TAMING OF NATIONS 80-81 (1952).
254. Stone, A Common Law for Mankind, 1 INT'L LEGAL STUD. 430, 431 (1959-60);
Sohn, Proposalsfor the Establishmentof a system of InternationalTribunals, TRADE
ARBITRATION 64 (1958); Anand, The Role of the 'New'Asian-African Countries in the Present Legal
Order, 50 AM.J. INT'L L. 383 (1961).
255. Stone, supra note 254, at 430.
256. Sohn, supra note 254, at 64.
257. Anand, supra note 254, at 404.
258. See P. BUIRETTE-MAURAU, LA PARTICIPATION DU TIERS-MONDE k
L'ELABORATION DU DROIT INTERNATIONAL (1983) (discussion of the Third World's views with
respect to these and other legal issues).
for an international judiciary to apply in cases involving issues
vital to these nations. The statements made by Third World
representatives in the United Nations support the above
explanation of the Third World attitude toward adjudication.259
The real problem underlying Western reluctance to accept
compulsory jurisdiction is simply the lack of political will to
submit their disputes to a court. 260 This attitude is evidenced
by the reservations attached to Optional Clause acceptances,
the attitude of non-appearing respondents-including recently
the United States-and the structure of international
organizations. It is not impossible for states to use judicial settlement
effectively. Where the West has chosen to use it, judicial
settlement has functioned reasonably well. For example, there is
unanimity of opinion that the common social milieu and the
need for final decisions in the European Community has
increased the political will to use, and consequently the
effectiveness of, judicial settlement.2 61 Where the desire to create and
use appropriate judicial structures exists, adjudication can
become an important dispute mechanism.
A number of things work against the development of
Western political will with regard to judicial settlement. As
early as 1907, Root noted that those entrusted with being
judges of an international judiciary often act more like
diplomatic agents than neutral decisionmakers.26 2 Brownlie has
cited the political facts that recourse to a court is often
considered an unfriendly act, that judges are distrusted, and that
states prefer to keep their dispute settlement options open.263
259. The representative of Ethiopia cited changes in the world community and
balance of power, the need for new international legal norms, and the pro-Western
orientation of the Court's judges. Minutes of the meetings of the Sixth Committee,
26 U.N. GAOR (6th C.) at 173, U.N. Doc. A/C.6/SR. 1277 (1971) (Mr. Woldeg
Giorges); Uruguay similarly focused on the distrust of the Third World with regard to
international legal norms and the wide divergence of opinion as to content of the
norms themselves. Minutes of the meetings of the Sixth Committee, 26 U.N. GAOR
(6th C.) at 179, U.N. Doc. A/C.6/SR.1278 (1971) (Mr. Gonzalez Laperpe).
260. The very same point was made by the French delegate to the Sixth
Committee. Id. (Mr. Deleau).
261. Tomuschat, supra note 53, at 397; Golson, Report in JUDICIAL SETrLEMENT:
AN INTERNATIONAL SYMPOSIUM 115-117 (1974); C. DE VISSCHER, ASPECTS RECENT DU
DROIT PROCEDURAL DE LA COUR INTERNATIONAL DE JUSTICE 178 (1966).
262. See 0. LissrrzYN, supra note 120, at 41 (discussion on Root's
communications to the United States Delegation).
263. I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL L.Aw 731 (3d ed. 1979).
Fitzmaurice emphasized the fear of losing a case as well as the
loss of tools like propaganda, bargaining, lobbying, and
manipulation of votes.2 6 4 He also noted a general lack of
confidence in the International Court of Justice as an institution
actually capable of settling disputes.265 Apart from their official
statements to the contrary, Socialist states probably object to
adjudication and compulsory jurisdiction for these very same
reasons. In the end, it is undoubtedly a combination of these
factors which, when weighed against other forms of dispute
settlement, inclines states to stay away from judicial resolution.
Responding to the hostility and doubts of the world's
three blocs of nations, the United Nations Charter and other
international instruments make judicial settlement but one of
many methods of dispute resolution open to states. The free
choice of means is emphasized. Where recourse to a court is
possible, it is limited both in terms of subject matter and
conditions prerequisite to its use, i.e. diplomatic negotiations and
reservations to adjudication. Often, no tribunal is endowed
with jurisdiction where the treaty or convention calls for
judicial settlement. Of course, these instruments did not appear
like Moses and the Ten Commandments from Mount Sinai.
Instead, they are the product of the will of governments, and
as such, they are the strongest evidence available for the
aversion of states to judicial settlement.
V. THE PROSPECTS FOR JUDICIAL SETTLEMENT
Judicial settlement is and will probably remain a secondary
method of international dispute resolution. The prevailing
attitude among states shows that acceptance of compulsory
jurisdiction in the near future is highly unlikely. The very structure
of the Court's Statute and its Optional Clause provide
testimony of the inherent weaknesses of the Court's compulsory
jurisdiction. States can and do ignore the Court. Acceptances
ofjurisdiction that are made can and do possess any number of
crippling reservations and conditions. Moreover, as the
phenomenon of the non-appearing respondents shows, states feel
264. Fitzmaurice, Enlargement of the ContentiousJurisdictionof the Court in 2 FUTURE
OF THE INTERNATIONAL COURT OF JUSTICE 463 (L. Gross ed. 1976).
265. Id. at 465-67.
free in certain circumstances to disregard the obligations they
have made with regard to mandatory judicial settlement.
Even more fundamentally, there exists no significant
obligation requiring states to resolve disputes through judicial
means. The tradition of creating international instruments
which feature other methods of dispute resolution continues.
The United Nations system is based upon the ultimate political
resolution of disputes by the Security Council. In most other
relationships, states have chosen to feature conciliation,
negotiation, and arbitration over judicial processes. The emphasis
in almost all systems is on the freedom of states to choose the
appropriate means of dispute settlement. Thus, even the first
steps toward establishing a court as a key dispute mechanism
have not been taken. There is, therefore, little tradition of
serious, mandatory use of judicial settlement to build on in
persuading states to accept reform of the Statute of the
International Court of Justice.
At best, only a handful of states show a tendency to accept
a compulsory form of international adjudication. Their
support for adjudication can only be termed a "tendency" because
none of these states has actually been called before the Court
in a dispute. 266 The rest of the world, including the United
States, most major Western nations, the Soviet Union, and the
Eastern Bloc, confirms the secondary importance of judicial
settlement by its reluctance to use the International Court of
Justice. In addition, states clearly reject any form of
compulsory jurisdiction by their votes in the General Assembly, by the
views they publicly express with regard to adjudication, and by
the quantity and quality of declarations they make under the
Optional Clause. This opposition is so pervasive that it would
be unrealistic to expect judicial settlement to soon become a
serious factor in resolving international controversies.
Given the very clear and limited role that states created for
judicial settlement in the United Nations Charter, a serious
attempt to expand the International Court of Justice's
jurisdiction would inevitably involve an amendment of the Charter
it266. This "handful" of countries is composed of states with significant, broad
declarations under the Optional Clause. See supra note 153. None of these nations
has been called before the Court as a respondent on the basis of their declarations. It
is, therefore, impossible to tell how seriously even they would take their Optional
Clause obligations if important interests were involved.
14. A. BOZEMAN, POLITICS AND CULTURE IN INTERNATIONAL HISTORY 266- 67 ( 1960 ).
15. Treaty of Amity, Commerce and Navigation, Nov. 19 , 1794 , United States - Great Britain , 52 Parry's T.S. 243 ( commonly known as the Jay Treaty) .
16. S. ROSENNE, supra note 11, at 12-13.
17. D. FLEMING , THE UNITED STATES AND THE WORLD COURT 15-17 (rev. ed. 1968 ). In 1840 , New Hampshire farmer William Ladd proposed an international court of nations in his "Essay on a Congress of Nations." See W. LADD, ESSAYS ON THE CONGRESS OF NATIONS (reprinted 1916 ).
18. Treaty for the Amicable Settlement of all Causes of Difference , May 8, 1871 , Great Britain - United States , 143 Parry's T.S. 145 (Washington Treaty).
19. D. FLEMING, supra note 17.
20. See LAPARDELLE & POLOTIS, 2 RECEUIL DES ARBITRAGE INTERNATIONALES , 713 ( 1923 ).
21. D. FLEMING, supra note 17, at 17.
22. Patterson , The United States and the Origins of the World Court, 91 POL. ScI. Q . 279 , 280 - 81 ( 1976 - 77 ).
23. Id . The New York State Bar Association issued a report in 1896 on arbitration as practiced up to that time concluding that the use of partisan arbitrators, and the consequent lack of an impartial judge, prevented impartial decision-making. The report called for the establishment of a new permanent tribunal .
24. M.O. HUDSON , THE PERMANENT COURT OF INTERNATIONAL JUSTICE 1920- 1942: A TREATISE 3 ( 1943 ) ; see Treaty between Great Britain, Austria- Hungary , Belgium, Denmark, Egypt, France, Germany, Greece, Italy, Luxembourg, Netherlands, Norway, Portugal, Roumania, Russia, Servia, Spain, Sweden, Switzerland, Turkey, and the United States, relative to the formation of a General Postal Union , Oct. 9 , 1874 , 147 Parry's T.S. 136 ( French text).
25. See M.O. HUDSON , supra note 24, at 10 n.4.
26. See , e.g., International Convention for the Pacific Settlement of International Disputes, July 29 , 1899 , 187 Parry's T.S. 410 ( French text) reprintedin 2 MAJOR PEACE TREATIES OF MODERN HISTORY: 1648 - 1967 , 1115 (F. Israel ed. 1967 ) [hereinafter cited as First Hague Convention] .
27. For the 1907 Conference, see 205 Parry's T.S. 216 , 216 - 404 (Conventions signed at the Hague on Oct. 18 , concluding the Hague Conference of 1907; French texts); see also 2 MAJOR PEACE TREATIES OF MODERN HISTORY: 1648-1967 , 1199 [hereinafter cited as Second Hague Convention].
28. D. FLEMING, supra note 17, at 18.
29. S. ROSENNE, supra note 11, at 14.
30. Id . For a full report on the Hague Conferences, see J.B. Scorr, THE REPORTS TO TIE HAGUE CONFERENCES OF 1899 AND 1907 ( 1917 ). As Tuchman has noted in her description of the 1899 Conference and the Convention for the Pacific Settlement of Disputes it produced, "[d]elegates [who] worked mightily to draw up a convention of sixty one Articles, while applying 'a zeal almost macabre' to removing any trace of compulsory character." B. TUCHMAN , THE PROUD TOWER 266 ( 1966 ).
31. J.B. ScoTr , INSTRUCTIONS TO THE AMERICAN DELEGATION TO THE HAGUE CONFERENCES AND THEIR OFFICIAL REPORTS 9 ( 1916 ).
32. Patterson , supra note 22, at 281; D. FLEMING, supra note 17, at 18.
33. Patterson , supra note 22, at 281.
34. M.O. HUDSON , INTERNATIONAL TRIBUNALS , PAST AND FUTURE 7 ( 1944 ).
46. M.O. HUDSON , supra note 24, at 37. The incidents were the North Sea Incident (U.K . & Russia) ( 1904 ), The Tavignano , Cammouna, and Gaulois (Italy & France) ( 1912 ), and the Tabautia Inquiry (Germany & The Netherlands ) ( 1922 ). Id.
47. See Second Hague Convention, 2 MAJOR PEACE TREATIES , supra note 27, at 1206 (art. 38) (emphasis added).
48. Id ., 2 MAJOR PEACE TREATIES, supra note 27, at 124 (art. 53).
49. M.O. HUDSON , supra note 34, at 11.
50. Id .
51. 1 Actes et documents 702 ( 1907 ).
52. Convention for the Establishment of an International Prize Court , Oct. 18 , 1907 , 205 Parry's T.S. 381 (French text); see also 1 Actes et documents 668 ( 1907 ).
53. Patterson , supra note 22, at 284-86: Tomuschat, InternationalCourts and Tribunals with Regionally Restricted and/or SpecializedJurisdiction, in JUDICIAL SET- rLEMENT OF INTERNATIONAL DISPUTES 313 ( 1974 ).
54. Convention of Peace and Arbitration, Jan. 20 , 1902 , 190 Parry's T.S. 357 (Treaty of Corinto).
55. M.O. HUDSON , supra note 24, at 42-43.
56. General Treaty of Peace and Amity and Additional Convention , Dec. 20 , 1907 , 206 Parry's T.S. 63 (Spanish text) , 206 Parry's T.S. 72 ( English translation).
57. Convention for the Establishment of a Central American Court of Justice , Dec. 20 , 1907 , 206 Parry's T.S. 79 (Spanish text) , 206 Parry's T.S. 90 ( English translation); 2 AM .J. INT'L L. 231- 65 (Supp. 1908 ).
58. General Treaty of Peace and Amity and Addition Convention , Dec. 20 , 1907 , 206 Parry's T.S. 72 , 73 .
59. M.O. HUDSON , supra note 24, at 52-53.
84. Id . at 191.
85. See id. at 456-57.
86. Minutes of the Council of the League of Nations (8th Session)  LEAGUE OF NATIONS O .J., 33 ( 1920 ).
87. J. ELKIND, supra note 4, at 87.
88. Minutes of the Council of the League of Nations (10th Session)  League of Nations O .J., 161 ( 1920 ) (Annex 118) .
89. M.O. HUDSON , supra note 24, at 192.
90. I Records of the First Assembly of the League of Nations: Meetings of the Committees (Committee III) [ 1920 ] 533 - 34 ( Annex 7: Report to the Third Committee by Mr. Hagerup on behalf of the Sub-Committee) .
91. Id .
92. League of Nations Council/Minutes of Sessions 9-11 (11 th Session) [ 1920 ]
93. League of Nations Doc. C.606. M. 211 . 1924 IV , ( 1924 ), reprinted in 2 M.O . HUDSON, INTERNATIONAL LEGISLATION 1378 ( 1932 ).
94. Records of the Fifth Assembly of the League of Nations (27th Plenary Mtg . Oct. 1 , 1924 ) Spec. Supp. No. 23 at 225.
95. Records of the Ninth Assembly of the League of Nations (19th Plenary Mtg . Sept, 26 , 1928 ) 183 , Spec . Supp. No. 64 .
96. General Act (Pacific Settlement of International Disputes) , Sept. 26 , 1928 , 93 L.N.T.S. 343 .
97. General Treaty for Renunciation of War as an Instrument of National Policy , Aug. 27 , 1928 , 46 Stat. 2343 , 94 L.N.T.S. 59 .
98. Id . art. 2.
99. Kelsen saw the failure to endow a court with compulsory jurisdiction as the fatal flaw in the Kellogg-Briand Pact . H. KELSEN, PEACE THROUGH LAW 18 ( 1944 ).
100. U.N. CHARTER art. 92 .
101. Article 41 of the Statute gives the Court power to order interim measures . STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 41 . The power to decide questions ofjurisdiction lies in article 36(6). The Court can order intervention by virtue of its power in article 61.
102. Steinberger , The InternationalCourt ofJustice, in MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW , JUDICIAL SETrLEMENT: AN INTERNATIONAL SYMPOSIUM 207 ( 1974 ) ; Kearney, Amid the EncirclingGloom, in 1 THE FUTURE OF THE INTERNATIONAL COURT OF JUSTICE 108 (L . Gross ed. 1976 ); D.W. GRIEG, INTERNATIONAL LAW 693 ( 1976 ). As Grieg has concluded: The Charter is perhaps more of a discouragement than an incentive to judi-
105. 12 M. WHITEMAN , DIGEST OF INTERNATIONAL LAw 895-96 ( 1971 ) ; see U.N. CHARTER art . 33 , para . 1.
106. Stienberger , supra note 102, at 204; Gross, The InternationalCourt ofJustice: Considerationof Requirementsfor Enhancingits Role in the InternationalLegal Order,in I THE FUTURE OF THE INTERNATIONAL COURT OF JUSTICE 29-30 (L . Gross ed. 1976 ). which treaties have been cited forjurisdiction: Nuclear Tests (General Act), Pakistani Prisoners of War (Genocide Convention), Iranian Hostages (Treaty of Friendship and Operational Protocol to the Vienna Conventions on Diplomatic Relations and Consular Relations), and the Military and Paramilitary Activities in and Against Nicaragua (Treaty of Friendship) .
131. Amended Constitution of the International Rice Commission , Nov. 23 , 1961 , 13 U.S.T. 2403, T.I.A.S. No . 5204 , 418 U.N.T.S. 334 .
132. United States Diplomatic and Consular Staff in Tehran (U.S. v . Iran) , 1980 I.C.J. 3 (Judgment of May 24, 1980 ); Military and Paramilitary Activities In And Against Nicaragua (Nicar . v. U.S.), 1984 I.C.J. 392 (Judgment of Nov. 26 on Jurisdiction and Admissibility).
133. Kearney , supra note 103, at 160.
134. 1946 -47 ANNUAIRE COUR INTERNATIONAL DE JUSTICE 105- 06 ( 1947 ).
135. See 1952-1953 I.C.J.Y .B. 31 ( 1953 ).
136. 1962 -1963 I.C.J.Y .B. 17 - 19 ( 1963 ).
137. 1972 -1973 I.C.J.Y .B. 33 ( 1973 ).
138. 1983 -1984 I.C.J.Y .B. 57 - 91 ( 1984 ).
139. Australia , Austria, Belgium, Canada, Denmark, Finland, Japan, Israel, Liechtenstein, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Sweden, Switzerland, United Kingdom , and United States . The United States has cancelled its optional clause acceptance . See supra note 5.
140. Barbados , Botswana, Colombia, Costa Rica, Cambodia, Dominican Republic, Egypt, El Salvador, Gambia, Haiti, Honduras, India, Kenya, Liberia, Malawi, Malta, Marutitius, Mexico, Nicragua, Nigeria, Pakistan, Panama, Philippines, Somalia, Sudan, Swaziland, Togo, Uganda, Uruguay.
141. These 25 declarations are either terminable at will upon notice or can be amended or modified in anyway if so desired by their makers . Australia , Austria, Barbados, Belgium, Botswana, Canada, Costa Rica, Kahnpuchea, El Salvador, India, Israel, Japan, Kenya, Liberia, Malawi, Malta, Mauritius, Philippines, Portugal, Somalia, Sudan, Swaziland, Togo, and United Kingdom.
142. States having multilateral treaty reservations in their Optional Clause declarations: El Salvador , India, Malta, Pakistan, Philippines, and United States (declaration has been cancelled).
143. India , Malta, Philippines, United Kingdom, Mauritius, New Zealand, Somalia.
144. Barbados , Botswana, Canada, Cambodia, El Salvador, Gambia, India, Israel, Kenya, Liberia, Malawi, Malta, Maritius, Mexico, Pakistan, Philippines, Sudan, Swaziland, United States (declaration has been cancelled).
145. Malawi , Mexico, Philippines, Sudan, United States (declaration has been cancelled).
146. Australia , Barbados, Canada, Gambia, India, Kenya, Malta, Maritius, United Kingdom.
147. See 1983-1984 I.C.J.Y .B. 57 - 91 ( 1984 ).
148. Id . at 64.
149. Id .
150. Id . at 75.
151. Id . at 70.
152. Id . at 69.
153. Australia , Austria, Belgium, Colombia, Costa Rica, Denmark, Dominican Republic, Finland, Haiti, Honduras,Japan, Liechtenstein, Luxembourg, Netherlands, Nicaragua, Nigeria, Norway, Panama, Sweden, Switzerland, Togo, Uganda, Uruguay.
154. Schwartzenberger , supra note 13, at 208.
155. G.A. Res . 171, U.N. Doc . A/519, at 103 ( 1947 ).
156. General Act on the Pacific Settlement of International Disputes , Sept. 26 , 1928 , 93 L.N.T.S. 343 .
157. Revised General Act for the Pacific Settlement of International Disputes , Apr. 28 , 1949 , 71 U.N.T.S. 101 , fn .2.
158. Belgium , Denmark, Luxembourg, Netherlands, Norway, Sweden, and Upper Volta.
159. G.A. Res . 2625 , 25 U.N. GAOR (Supp . No. 28 ), at 121, U.N. Doc . A/8082 ( 1970 ).
160. Id .
161. Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation Among States , 20 U.N. GAOR C. 6 (- th mtg ) at 56, U.N. Doc . A/6230 ( 1966 ).
168. Id . at 190 (Mr. Suy).
169. Minutes of the Meetings of the Sixth Committee . 25 U.N. GAOR C. 6 (1211th mtg ) at 194, U.N. Doc . A/C.6/SR.1211 ( 1970 ) (Mr . Houben).
170. Minutes of the Meetings of the Sixth Committee, 25 U .N. GAOR C. 6 (1212th mtg ) at 199, U.N. Doc . A/C.6/SR.1212 ( 1970 ) (Mr . Deleau).
171. Minutes of the Meetings of the Sixth Committee . 25 U.N. GAOR C. 6(1215th mtg ) at 213, U.N. Doc . A/C.6/SR.1215 ( 1970 ) (Mr . Vallarta).
172. Minutes of the Meetings of the Sixth Committee . 25 U.N. GAOR C. 6 (1215th mtg ) at 214, U.N. Doc . A/C.6/SR. 1215 ( 1970 ) (Mr .Jagota); 25 U.N. GAOR C. 6 (1210th mtg ) at 191, U.N. Doc . A/C.6/SR.1210 ( 1970 ) (Mr . Sperduti); 25 U.S. GAOR C. 6 (1216th mtg ) at 217, U.N. Doc . A/C.6/SR.1216 ( 1970 ) (Mr . Freeland); 25 U.N. GAOR C. 6 (1216th mtg ) at 219, U.N. Doc . A/C.6/SR. 1216 ( 1970 ) (Mr . Brennan); 25 U.N. GAOR C. 6 (1217th mtg ) at 230, U.N. Doc . A/C. 6/SR.1217 ( 1970 ) (Mr . Ofstad); 26 U.N. GAOR C. 6 (1280th mtg ) at 194, U.N. Doc . A/C.6/SR.1280 ( 1971 ) (Mr . Rakotoson); 26 U.N. GAOR C. 6 (1281th mtg ) at 200, U.N. Doc . A/C.6/SR. 1281 ( 1971 ) (Mr . Faruki); 26 U.N. GAOR C. 6 (1281th mtg ) at 201-02, U.N. Doc . A/C.6/SR.1281 ( 1971 ) (Mr . Bejasa); 25 U.N. GAOR C. 6 (1211 th mtg ) at 193, U.N. Doc . A/C.6/SR.1211 ( 1970 ) (Mr . Javits).
173. Minutes of the meetings of the Sixth Committee . 25 U.N. GAOR C. 6(1216th mtg) at 218 . U.N. Doc . A/C.6/SR.1216 and Corr . I ( 1970 ) (Mr . Persson).
174. The United States Declaration under the Optional Clause (1946) contained the following reservations: 188 . See , e.g., the statements made by the Algerian and Kenyan represenatives , 25 U.N. GAOR C. 6 (1216th mtg .) at 222, U.N. Doc . No. A/C.6/SR 1216 ( 1970 ) (Mr . Boulbina); 25 U.N. GAOR C. 6 (1213th mtg .) at 205 , 25 U.N. Doc . A/C.6/SR 1213 ( 1970 ) (Mr . Nienga).
189. 0. LIssITZYN, supra note 120, at 93.
190. See supra notes 139-46 and accompanying text.
191. See Convention on the High Seas , Apr. 29 , 1958 , 13 U.S.T. 2312, T.I.A.S. No . 5200 , 450 U.N. T.S. 82; Convention on the Continental Shelf, Apr. 29 , 1958 , 15 U.S.T. 471, T.I.A.S. No . 5578 , 499 U.N.T.S. 311 ; Convention on the Territorial Sea and the Contiguous Zone , Apr. 29 , 1958 , 15 U.S.T. 1606, T.I.A.S. No . 5639 , 516 U.N.T.S. 205 ; Convention on Fishing and Conservation of the Living Resources of the High Seas , Apr. 29 , 1958 , 17 U.S.T. 138 , TIAS No. 5969 , 559 U.N.T.S. 285 .
192. Convention on the High Seas , Apr. 29 , 1958 , 13 U.S.T. 2312, T.I.A.S. No . 5200 , 450 U.N.T.S. 82 .
193. Vienna Convention on Diplomatic Relations, Apr. 18 , 1961 , 500 U.N.T.S. 95 ; id. 500 U.N.T.S. 241 ( optional protocol on dispute settlement).
194. Vienna Convention on Consular Relations, Apr. 24 , 19863 , 21 U.S.T. 77, T.I.A.S. No . 6820 , 596 U.N.T.S. 261 ; id., 21 U.S.T. 325 , 596 U.N.T.S. 487 ( optional protocol on dispute settlement).
195. Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Dec. 10 , 1982 , 521 U.N.T.S. 231 .
196. International Covenant on Economic, Social, and Cultural Rights, Dec. 19 , 1966 , 6 I.L.M. 360 ; International Covenant on Civil and Political Rights, Dec. 19 , 1966 , 6 I.L.M. 368 .
197. Convention on Special Missions and Optional Protocol concerning the Compulsory Settlement of Disputes , Dec. 16 , 1969 , 9 I.L.M. 149 .
198. See supra notes 191- 96 .
199. Convention on the Continental Shelf , Apr. 29 , 1958 , 15 U.S.T. 471, T.I.A.S. No . 5578 , 499 U.N.T.S. 311 ; Convention on the Territorial Sea and the Contiguous Zone , Apr. 29 , 1958 , 15 U.S.T. 1606, T.I.A.S. No . 5639 , 516 U.N.T.S. 205 ; Convention on Fishing and Conservation of the Living Resources of the High Seas , Apr. 29 , 1958 , 17 U.S.T. 138, T.I.A.S. No . 5969 , 559 U.N.T.S. 285 .
200. Vienna Convention on the Law of Treaties, May 23 , 1969 , U.N.T.S.
201. U.N, CHARTER art. 33 .
202. Articles 66(a) and (b) can be found at 63 AM . J. INT'L L . 875 ( 1969 ) ; UN Doc . A/Conf. 39/27 ( 1969 ).
203. North Atlantic Treaty, Apr. 4 , 1949 , 63 Stat. 2241 , 34 U.N.T.S. 243 .
204. See Resolution on the Peacful Settlement of Disputes and Differences Between Members of the North Atlantic Treaty Organization, 36 DEP'T ST . BULL . 17 ( January 7 , 1957 ).
235. For a description of the French objection and the Luxembourg Accords, see P. KAPTEYN & P. VERLOREN VAN THEMMAT , INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES ( 1973 ); D. LASOK & J.W. BRIDGE , AN INTRODUCTION TO THE LAW AND INSTITUTIONS OF THE EUROPEAN COMMUNITIES ( 1982 ).
236. Treaty Creating the Court of Justice of the Cartagena Agreement, 18 I.L.M. 1203 ( 1979 ), art. 6.
237. Id . art. 17 - 27 .
238. Id . art. 1.
239. United Nations Convention On the Law of the Sea, 21 I.L.M. 1261 ( 1982 ) [hereinafter cited as Convention on the Law of the Sea] .
240. Jaenicke , Dispute Settlement Under the Convention on the Law ofthe Sea, 43 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 813 , 815 ( 1983 ).