When one hears the expression "a court of law" or "a court of justice", one is likely to think that it is a court whose authority extends to all persons, natural or juristic, within the area assigned to it. But the International Court of Justice, like its predecessor the Permanent Court of International Justice, is not such a kind of court. It is true that it is the principal judicial organ of the United Nations and that every State which accepts the Charter becomes ipso facto a party to the Statute of the Court, which is an integral part of the Charter. The Court, however, does not and cannot automatically exercise its jurisdiction over all the Members of the United Nations; as the local Court in can automatically exercise its jurisdiction over all persons who are resident in this city.
In the case of a municipal or national court, its jurisdiction is inherent in its very institution. All people are subject to the jurisdiction of a municipal court the moment it is established. Any person can sue any other person before it. It can summon any defendant to answer any complaint that may be brought against him. But in the case of the International Court of Justice, jurisdiction is not compulsory: it is derived from the consent of the parties. In other words, the International Court of Justice cannot deal with any case unless and until the parties concerned have expressed a common desire to be subject to its jurisdiction.
The lack of compulsory jurisdiction of the International Court of Justice has to be traced back to the early days of the . Article 14 of the Covenant of the League called upon the Council of the League to formulate and to submit to the Members of the League plans for the establishment of a Permanent Court of International Justice. Acting upon that Article, the Council appointed in Committee of ten Jurists who were entrusted with the task of drawing up a Statute of the Court. The Committee, composed as it was of persons who entertained rather progressive ideas in regard to the settlement of international disputes, produced a draft of the Statute embodying the principle that the Court shall, without special agreement, have jurisdiction to hear and determine cases of a legal nature between States which were Members of the League. This was compulsory jurisdiction.
As soon as the draft Statute was submitted to the Council, strong opposition was raised by and . The then Mr. Balfour declared, in the name of the British Government, that the scheme with all its methods goes considerably beyond the Covenant. Article 14 clearly contemplates that the Court has only to deal with disputes which are voluntarily submitted to it by the authorities concerned ... Evidently, the framers of the
Articles never intended that one party to the dispute should compel another party to go before the Tribunal ..." M. Leon Bourgeois, the French Rapporteur, stressed the optional character of the system of arbitration contemplated in the Covenant, adding that the time was not yet ripe for the realization of the principle of obligatory competence of the Court. Thereupon the Council refused to accept the plan of compulsory jurisdiction recommended by the Committee of Jurists, and proposed instead a system which was believed to be based on the Covenant.
When the whole draft Statute with modifications made by the Council was referred to the Assembly, the subject of compulsory jurisdiction was hotly debated. A large majority of Powers was in favor of compulsory jurisdiction, but the most influential Members of the League were stubbornly opposed to it. Finally, upon the proposal of the Brazilian delegate, Senor Fernandes, a compromise plan was agreed upon. It took shape in Article 36 of the Statute, which embodied what has been called the optional clause. Under this optional clause, a Member of the League, when accepting the Statute of the Court, might make a declaration in which it would recognize as compulsory ipso facto and without special agreement, in relation to any State accepting the same obligation, the jurisdiction of the Court in any international legal dispute. This ingenious formula seemed to be a happy solution at the time. For those Members of the League who were in favor of compulsory jurisdiction of the Court would have no difficulty in making the declaration contemplated in Article 36 of the Statute. Those Members who were not in favor of compulsory jurisdiction would simply refrain from making any declaration of this kind, though they might accept the Statute in its entirety.
Thus, the jurisdiction of the Permanent Court of International Justice was on a voluntary basis. If it possessed a kind of compulsory jurisdiction vis-a-vis a certain number of States an increasingly large number of States, as the years went on and as States felt more and more confidence in the Court-if the Court had compulsory jurisdiction vis-a-vis a great number of States, it was accepted by them of their own accord and subject to all the conditions and all the time-limits which each might prescribe.
Twenty-five years later, towards the end of the second World War, a Conference of Jurists was held at Washington to prepare a new Statute-the Statute of the International Court of Justice to be established under the United Nations. After prolonged discussion, the Conference prepared a draft which was based on the Statute of the . The Conference, however, could not agree upon the question of jurisdiction and submitted two alternative plans on that question. One was the retention of the optional clause in Article 36 of the original Statute; the other was the unconditional and automatic conferring of compulsory jurisdiction upon the Court by the acceptance of the Statute. These alternatives which were embodied in the new draft Statute were presented to the Conference on the organization of die United Nations held at in the summer of 1945.
At that Conference the question of the jurisdiction of the Court again formed the subject of long and exhaustive debates. Numerically there were more delegations in favor of giving compulsory jurisdiction to the Court than those in favor of retaining the optional clause in the original Statute. The delegations of several European States, as well as those of a large number of Latin-American States, were in support of automatic compulsory jurisdiction. But among the four Sponsor-Powers of the Conference, namely, , the United Kingdom, the , and the U. S. S. R., only China was an enthusiastic advocate of compulsory jurisdiction. The U. S. S. R. was strongly opposed to giving any form of compulsor1 jurisdiction to the Court, while the and the were equally adamant on the question. The delegates of the spoke of the great difficulty in which she found herself. For, if the Court was to be given compulsory jurisdiction, it would be impossible for the United States to become a Member of the United Nations, since the Statute of the International Court of Justice, unlike the Statute of the Permanent Court in relation to the Covenant, was to be considered an integral part of the Charter of the United Nations; and, according to the delegates of the United States, there was hardly any hope of the United States Senate ratifying a Statute of the Court containing provisions which would bind the United States to its compulsory jurisdiction. Finally, the delegations of the Sponsor Powers, other than China, put, in effect, this question to the other delegations: "Do you want a United Nations with an International Court of Justice which possesses compulsory jurisdiction, but without those Powers which we represent as Members of the organization; or do you want a United Nations with those Powers as Members, but with a Court which does not possess compulsory jurisdiction?" Faced with such a choice, the Conference could not fail to see what course to take. The result was thus the establishment of a United Nations with the International Court of Justice which does not possess automatic compulsory jurisdiction, but with all the major Powers as Members of the great organization.
Article 36 of the new Statute, which is based on the corresponding Article in the old Statute, reads, in part, as follows:
"1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
"2. The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.
"3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time."
The first part of paragraph 1 of this Article says, "The jurisdiction of the Court comprises all cases which the parties refer to it." This may be regarded as the first source of the Court's jurisdiction. How do the parties usually refer a case to the Court? They usually refer a case to the Court by a compromis or special agreement. When two States having a dispute of a legal nature are disposed to have it settled by judicial means, they will negotiate and conclude a special agreement for the purpose of submitting the dispute to the Court for settlement. In such a case, the jurisdiction of the Court is derived from and limited by the special agreement, and its decision cannot go outside the terms of the agreement. A number of contentious cases were referred to the Court in this manner. For instance, the Lotus Case was submitted to the by an agreement signed on October 12th, 1926 by and . Similarly, the Minquiers and Ecrehos Case was referred to the International Court of Justice by a special agreement signed on December 29th, 1950 by the and .
In order to "refer" a case to the Court, it is not necessary for the parties always to sign a special agreement. The two parties may accept the jurisdiction of the Court "by two separate and successive acts". A good example is afforded by the Corfu Channel Case (first phase) between the and . On May 22nd, 1947, the United Kingdom filed an application with the International Court of Justice instituting proceedings against Albania with regard to an incident which occurred in the Corfu Channel on October 22nd, 1946, resulting in heavy loss of life and damage to two British destroyers The United Kingdom Government had brought the dispute to the Security Council of the United Nations, which adopted a Resolution recommending that the United Kingdom Government and the Albanian Government should refer the dispute to the International Court of Justice.
Although it was quite proper for the Security Council to recommend that the two Governments should refer the dispute to the Court for settlement, yet in law it was nothing more than a recommendation, and a recommendation by the Security Council cannot confer jurisdiction on the Court. After the filing of the application by the , the Court forwarded a certified copy of it to the Albanian Government. Now, if the Albanian Government had completely ignored the application, the Court could not have proceeded with the case; for not only had not accepted the compulsory jurisdiction of the Court, but was not even a party to the Statute of the Court. But the Court received from the Albanian Government a letter dated July 2nd, 1947, which contained the following statements:
"In these circumstances, the Albanian Government would be within its rights in holding that the Government of the was not entitled to bring the case before the Court by unilateral application, without first concluding a special agreement with the Albanin Government.
"The Albanian Government, for its part, fully accepts the recommendation of the Security Council.
"Profoundly convinced of the justice of its case, resolved to neglect no opportunity of giving evidence of its devotion to the principles of friendly collaboration between nations and of the pacific settlement of disputes, it is prepared, notwithstanding this irregularity in the action taken by the Government of the United Kingdom, to appear before the Court."
And did appear before the Court. It was held by the Court that the letter of the Albanian Government of July 2nd, 1947 "constitutes a voluntary and indisputable acceptance of the Court's jurisdiction". Here is a case which was referred to the Court by "the separate and successive acts" of the parties within the meaning of Article 36, paragraph 1.
We have just discussed the first source of the jurisdiction of the Court. It is reference of cases by the parties to the Court either by special agreement or by separate and successive acts. We will now examine the second source of the jurisdiction of the Court, which consists of "all matters specially provided for in the Charter of the United Nations". What are such matters, if any? The answer is that there are no such matters. When one goes through all the articles of the Charter, one does not see any provision or provisions concerning matters specially reserved for the International Court of Justice.
It is true that Article 36, paragraph 3, of the Charter, which, together with other articles, deals with the pacific settlement of disputes, provides that:
"In making recommendations under this article, the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice, in accordance with the provisions of the Statute of the Court."
But a recommendation by the Security Council or the reference of a legal dispute to the International Court of Justice for settlement, as has already been indicated, has no binding force in law and, as such, cannot form the source of the Court's jurisdiction.
The third source from which the Court is to derive its jurisdiction consists of treaties and conventions to which the disputing States in contentious cases are parties. There are a large number of treaties and conventions which confer jurisdiction on the Court. They are multilateral or bilateral. They deal with matters of a political, economic or technical nature. The provisions contained in such conventions and treaties, whereby a dispute may be referred to the Court for settlement, vary in form, but are generally couched as follows:
Any difference or dispute arising out of the interpretation or application of any of the provisions of the Convention (or the Treaty) shall be referred to the International Court of Justice for settlement (if it cannot be settled by negotiation or other means or unless the parties agree if have recourse to another mode of settlement).
It is a significant fact that the contracting, parties to the Treaty of Versailles, which brought the first World War to an end, agreed, even before the establishment of the Permanent Court of International Justice, to refer a certain kind of disputes to the Court for settlement. Article 386 of that Treaty provides that in the event of violation of the conditions of the Articles relating to the Kiel Canal or of disputes as to the interpretation of those Articles, any interested Power can appeal to the jurisdiction instituted for the purpose by the . And it may be recalled that the very first contentious case dealt with by the was the S. S. Wimbledon, which was brought before it by the British, French, Italian and Japanese Governments against the German Government, on the basis of Article 386 of the Treaty of Versailles.
At present there is yet no peace treaty with . But Peace Treaties have been signed with , , , and . One would think that the parties to these Treaties must be aware of the independence and impartiality of the International Court of Justice, as well as an international jurisprudence developed during the last 30 years, and should have unhesitatingly agreed to refer any dispute as to the interpretation or application of any clauses of the Peace Treaties to the International Court for consideration and adjudication. But in all these Treaties the common formula used in this connection is that in case of any dispute regarding the interpretation or application of any provisions of those Treaties, it will be settled by the so-called Heads of Mission, which means the diplomatic representatives of the major victorious Powers. In other words, legal disputes, as far as these Peace Treaties are concerned, will be settled by political, instead of judicial, means. In one Peace Treaty alone, however, that with , there is a clause which reads as follows:
"If in the opinion of any Party to the present Treaty, there has arisen a dispute concerning the interpretation or execution of the Treaty, which is not settled by reference to a special claims tribunal or by other agreed means, the dispute shall, at the request of any party thereto, be refereed for decision to the International Court of Justice."
Apart from these Peace Treaties, there seems to be an increasing number of Treaties, multilateral and bilateral, which adopt in some form or other the principle of the judicial settlement of disputes concerning the interpretation or application of any of the provisions of those Treaties. There is undoubtedly a growing tendency towards that direction in the case of conventions concluded under the auspices of the United Nations. As regards bilateral treaties, we may cite at random as examples the Economic Co-operation Agreement, signed between the United States and the Netherlands at The Hague on July 2nd, 1948; the Commercial Convention signed between the Netherlands and Mexico at Mexico City on January 27th, 1950; and the Agreement relating to air services signed between India and the Netherlands at New Delhi on May 24th, 1951. In all these bilateral treaties, there is a clause by which the parties accept the jurisdiction of the International Court of Justice in case of disputes regarding the interpretation or application of any provisions of those Treaties.
We finally come to the fourth and last source of the jurisdiction of the Court, namely, the so-called optional clause. We have already seen that the optional clause as now embodied in Article 36, paragraph 2, is the voluntary acceptance by an individual State of the compulsory jurisdiction of the Court under its own conditions.
There are at present 32 States which have, by making their own declarations, accepted the compulsory jurisdiction of the International Court of Justice. Of these 32 States, two are not yet Members of the United Nations but are parties to the Statute of the Court. They are and . The other 30 States are Members of the United Nations. They include four of the, five States which are the permanent members of the Security Council, namely, , , the , and the .
Among the declarations made by the 32 States, only those of three States-, , and are unconditional. The great majority of the declarations have certain common factors. First, they accept the jurisdiction of the Court on the basis of reciprocity. Even if reciprocity is not mentioned, it would seem that the declaration is normally subject to that condition, for according to the optional clause itself, a State recognizes the jurisdiction of the Court "in relation to any other State accepting the same obligation", that is, the obligation to be subject to the jurisdiction of the Court.
The second common factor is the time-limit. With very few exceptions, the declarations fix a time-limit, usually 5 or 10 years, and thereafter either with automatic termination or subject to notice of termination. If no time-limit is given or if the time-limit has expired, the declaration may be terminated at any time, unless the Court is already seized of a case to which the State denouncing its declaration is a party. There is a case in point. On May 26th, 1951, the United Kingdom Government started a suit against with regard to the nationalization of the Anglo-Iranian Oil Company by the Iranian Government. The United Kingdom Government relied for the jurisdiction; of the Court upon a declaration tile posited by with the Secretariat of the League of Nations on October 2nd, 1930 (which declaration, under the terms of the Statute of the Court annexed to the Charter of the United Nations, is deemed to be acceptance of its jurisdiction). On July 9th, 1951, when the Anglo-Iranian Oil Company Case was still proceeding, the Iranian Government sent a telegram to the Secretariat of the United Nations denouncing the declaration it had made. This denunciation was invalid as far as the case pending before the Court was concerned. It was on other grounds that the Court finally found itself without jurisdiction in the case.
Another condition which is frequently though not invariably contained in the declaration is that the disputes over which the Court may exercise jurisdiction must relate to facts or situations subsequent to the date, of the declaration. In other words, many States exclude from the compulsory jurisdiction of the Court those disputes which relate to facts or situations that had arisen before the declaration was made.
Besides these common factors, there is one particular condition which is contained in several declarations, and which has been the subject of some criticism among international jurists. This condition is of two different types: one is based on Article 15, paragraph 8, of the Covenant of the ; the others is based on Article 2, paragraph 7, of the Charter of the United Nations. The declarations of the , , , the Union of South Africa, and exclude from the compulsory jurisdiction of the Court disputes with regard to questions which by international law fall exclusively within the jurisdiction of the State making the declaration.
This is the first type. The other type of the condition in question is in this form: This declaration does not apply to disputes with regard to matters which are essentially within the domestic jurisdiction of the Government making the declaration as determined by that Government. This kind of condition is to be found in the declarations of , , , and the .
Though this latter form of condition may seem to defeat the very purpose of the declaration, it has not been actually invoked in practice, and there is reason to believe that it will never be invoked without weighty reasons. But once it is invoked, it is difficult to see how the Court can determine, from an objective point of view, whether the question before it is actually within the domestic jurisdiction of the .
If the judicial settlement of international disputes is to be encouraged and developed, one cannot but deprecate that kind of condition under which any attempt to seek an impartial opinion may be resisted on the plea of domestic jurisdiction as subjectively determined. As long, however, as the compulsory jurisdiction of the International Court of Justice is left to individual States to accept or to reject, as long as individual States have freedom of choice between being subject to the decision of the Court and completely ignoring its existence, it must be admitted that every State may prescribe whatever condition it pleases for the acceptance of its jurisdiction. And prescribing conditions for the acceptance of the Court's jurisdiction is, at any rate, much better than refusing to be subject to its jurisdiction under any conditions.
So much for jurisdiction in contentious cases. The is also competent to give advisory opinions on legal questions. Such advisory opinions may be requested by the General Assembly or the Security Council of the United Nations, or its specialized agencies. Up to now all the requests for advisory opinions have emanated from the General Assembly. While the decisions of the Court in contentious proceedings are called the Court in advisory proceedings is nothing more than an opinion which only serves as a guide to the organ requesting the opinion and which has no binding force in law.
However, even though an advisory opinion has no binding force in law, the Court may find it necessary to consider the request for an advisory opinion in the light of those rules of procedure, which are applicable to contentious cases. The Permanent Court of International Justice declined to give an opinion upon the request from the Council of the regarding the Status of Eastern Carelia. The question on which the advisory opinion was sought was whether certain provisions in the Treaty of Peace between and (Treaty of Dorpat signed on October 14th, 1920) and the annexed Declaration of the Russian Delegation constituted engagements of an international character, which placed under an obligation to . The Court found that there was actually a controversy between and , and that answering the question would be equivalent to deciding the dispute between the parties. The Court reiterated the principle "well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement." The Court went on to say that being a Court of Justice, it "cannot, even in giving, advisory opinions, depart from the essential rules guiding its activity as a Court."
Both the Permanent Court of International Justice and the International Court of Justice have again and again stated as a principle of law that the Court's jurisdiction depends on the will of the parties, Only last month (June 15th, 1954), in its Judgment in the Case of the Monetary Gold Removed from Rome in 1943, the International Court held that, "the Court can only exercise jurisdiction over a State with its consent." No consent, no jurisdiction.
This is the present state of law. But international law, like most other systems born of human activity, is not stagnant, but in the process of continuous development. It was certainly a long step forward from appealing to brutal force in case of an international controversy to accepting arbitration for the settlement of such a controversy. It was again a momentous forward step from giving consent to international arbitration for the settlement of a particular case by a tribunal specially set up as a result of diplomatic negotiations to giving consent in advance to settlement of all legal disputes by an International Court of Justice permanently established, and far more independent than an arbitral tribunal. It will indeed be an epoch-making event if the nations of the world will one day, by unanimous agreement, invest the present International Court of Justice or a future international court, with such judicial authority as will enable it to summon any State, irrespective of its own will, to answer any complaint that may be brought against it by another State-be it a complaint of aggression or a complaint of the non-performance of a financial obligation. When the optional clause is replaced by a principle of law under which the Court may automatically exercise its jurisdiction in all legal disputes against all States, when that day comes, rule of law among nations will have truly been attained. When that day comes, world peace will be maintained, not necessarily by armies and navies and air forces, much less by nuclear or thermonuclear weapons, but in the largest measures, by a group of impassive jurists administering justice in an impartial and objective manner.
*A lecture delivered before the International Seminar on the International Court of Justice organized by the Netherlands United Nations Association under the auspices of the World Federation of United Nations Associations. The Hague, July 13, 1954. By courtesy of Judge Hsu Mo, the text is published exclusively in this REVIEW.