In September last year, India submitted its revised Declaration under Article 36 para. 2 of the Statute of the International Court of Justice (ICJ) replacing its earlier Declaration of 18 September 1974.
India’s revised Declaration followed that of Pakistan which revised its own Declaration, in the wake of Marshall Islands v Pakistan case, on 29 March 2017 replacing its previous Declaration of 12 September 1960. Our revised Declaration had further limited the scope of disputes Pakistan was willing to accept in relation to other states.
For a better appraisal of India’s revised Declaration and to better put it into perspective, we need to examine so-called “compulsory jurisdiction” of the Court which traditionally (and more aptly) referred to as “optional clause”.
Article 36 (under Chapter II of the Statute covering Court’s competence) deals with the jurisdiction of the Court which in general holds true when the parties concerned refer to it or as provided in the UN Charter or treaties and conventions. Within that general proviso, the Statute allows declaration of “compulsory jurisdiction” with or without conditions in relation to any other state accepting the same obligations.
Para. 2 of the Article 36 reads as follows:
The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
- the interpretation of a treaty;
- any question of international law;
- the existence of any fact which, if established, would constitute a breach of an international obligation;
- the nature or extent of the reparation to be made for the breach of an international obligation.
The language of Article 36 as reflected in the ICJ Statute was the result of historical competition between introducing some restraints on the unfettered sovereignty of States against robust legal mechanisms for peaceful settlement of international disputes. Whilst Article 12 of the Covenant of the League of Nations had provided referral of any dispute either to arbitration or judicial settlement, its practical implementation remained elusive. Article 36 of the Statue of the Permanent Court of International Justice (precursor to ICJ) had similar provision to the current text of Article 36, however, it was appended as an “Optional Clause” in the Protocol of Signature, diminishing its effectiveness.
With the negotiations for a new judicial body of the United Nations under way after the Second World War, the debate also directed at compulsory jurisdiction and optional elements. Again, the choice was between “idealistic” visions of comprehensive compulsory jurisdiction and “realistic” path of optional approach. This was compounded by the fact that both the US and USSR were staunch opponents of compulsory jurisdiction. Eventually, text of PCIJ’s Article 36 was retained to a great extent.
It is noteworthy that although admission to the United Nations automatically includes membership of the ICJ, this does not amount to submission to the Court’s jurisdiction. Consent of the parties concerned is essential, either specific/special as outlined in Article 36 para. 1, or prior as outlined in Article 36 para. 2 (under the optional clause).
These declarations are made under Article 36 para. 3 which explicitly permit reservations. Over the years, these declarations have resulted in a patchwork of varying degree of approaches to accept (or reject) Court’s jurisdiction in certain cases. Then there is element of reciprocity as outlined in the Article 36. All in all, it essentially left to each individual state the extent of Court’s jurisdiction it was willing to accept. Thus, the jurisdiction of the Court exists only to the extent that the commitments of the two sides coincide.
Among five permanent members of the Security Council, only the United Kingdom still recognizes the jurisdiction of the ICJ under Article 35 para. 2. UK itself revised its Declaration on 22 February 2017 in light of ICJ case brought by Marshall Islands concerning nuclear weapons (thus explicitly excluding disputes “connected with or related to nuclear disarmament and/or nuclear weapons”). Whilst China and Russia never submitted to compulsory jurisdiction, both US and France withdrew their acceptance after “negative” decisions in the Nuclear Tests cases and Nicaragua case, respectively.
Overall, only 77 States, as of today, have accepted the compulsory jurisdiction.
However, only very few have limited themselves to the original text of the Article 36 para. 2 – most have inserted reservations.
India’s Declarations have historically come with one of the most elaborate reservations – thus limiting the scope of compulsory jurisdiction to next to nothing. It has been rightly observed that “nowhere has the quantity and
density of reservations reached the same level as in the case of India, which has succeeded in shaping an instrument that will certainly prevent any attempt ever to bring an application against it, thus converting the act of acceptance into a barely veiled act of non-acceptance”. In addition to all other forms of reservations that India has made, it has also inserted what is known as Vandenberg reservation, which in case of a multilateral treaty, would require all “affected parties” by the decision to be parties to the case before the ICJ – thereby practically shutting all doors of Court’s jurisdiction.
With revised Declaration submitted in September 2019, India has taken that to an altogether next level.
India started off its Declaration to Article 36 para. 2 in 1956 with a fairly simple formula – accepting the Court’s compulsory jurisdiction as conceived in the Statute with the exception of first four reservations as contained in subsequent reservations (items no. 1-4). Those were specifically designed to forestall any move from Pakistan. That focus from positive acceptance of compulsory jurisdiction to exceptions came quickly in 1959 along with addition of two more reservations to the Declaration.
However, it was India’s 1974 Declaration which rendered the entire concept of compulsory jurisdiction to infamy. India added wide-ranging reservations to avert any case whatsoever against it. It was this iteration when such clauses as so-called Vandenberg reservations were added to its plethora of arsenals. It further solidified these to preclude certain categories of issues (boundary, territorial sea/continental shelf, maritime boundaries and airspace). The idea was not to let any state make a successful application against it.
And India remained successful in achieving this objective. In the 45 years after these reservations, only two cases were filed against India: Aerial Incident of 10 August 1999 (Pakistan v India) case and Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) case. In both instances India successfully thwarted negative applications due to its reservations.
Now with additional reservations, it will be even harder for India to be brought to the International Court of Justice on the basis of its compulsory jurisdiction, which, as explained earlier, has been rendered pointless due to India’s series of reservations. For all practical purposes, the effects of India’s Declaration are equivalent to never submitting to Court’s compulsory jurisdiction.
Commentary on Reservations in India’s Article 36 Declaration (Latest revisions to 1974 Declaration are shown in bold)
|1||disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement||Excluding bilateral issues between India and other countries (citing Shimla Agreement with Pakistan)|
|2||disputes with the government of any State which is or has been a Member of the Commonwealth of Nations||Excluding Pakistan on the basis of membership of the Commonwealth, even including such eventuality when Pakistan’s membership remained suspended|
|3||disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;||Excluding Court’s jurisdiction in matters coming under domestic jurisdiction. Notably, India has used the formula “essentially” instead of “exclusively”, employed by only a few States|
|4||disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved, including the measures taken for protection of national security and ensuring national defence||Security related matters are excluded with additional language in the revised Declaration to further limit cases to be brought against India. This is purportedly added to fill vacuum in India’s reservations which allowed Marshall Islands to file its application.|
|5||disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application||Limiting the time available to any other party which has accepted the Court’s compulsory jurisdiction exclusively for a specific dispute. This is intended to provide India more time for reacting to certain cases before they are eventually rejected on these grounds.|
|bringing the dispute before the Court|
|6||disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case||Retroactive application of treaties before the establishment of India is excluded.|
|7||disputes concerning the interpretation or application of a multilateral treaty to which India is not a party; and disputes concerning the interpretation or application of a multilateral treaty to which India is a party, unless all the parties to the treaty are also parties to the case before the Court or the Government of India specially agree to jurisdiction||With new addition, this is has become one of most expansive reservations. It also includes so called Vandenberg reservation, which in case of a multilateral treaty would require all parties to the treaty to be parties to the case before the Court. The intention is to make it practically impossible to initiate case against the country on account of any multilateral treaty with compromissory clauses. It is noteworthy that in Nicaragua case, the reservation by the US had not practical effect, as the Court relied on the existence of a customary law.|
|8||disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India||India has employed this formula since its 1956 reservation.|
|9||disputes with non-sovereign States or territories||In any event, as per Article 34 para. 1, only by sovereign states can be parties in cases before the Court.|
|10||disputes with India concerning or relating to: a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries||Starting with India’ 1974 Declaration, these reservations are meant to preclude wide-range of matters from the Court’s jurisdiction. Particular emphasis is on cases related to boundaries, frontiers and territorial limits – both land and sea.|
|the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it the airspace superjacent to its land and maritime territory; and the determination and delimitation of its maritime boundaries|
|11||disputes prior to the date of this declaration, including any dispute the foundations, reasons facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter||Practical effect of this reservation is to prevent any dispute that had its origin before the Declaration’s date (27 September 2019)|
|12||This declaration revokes and replaces the previous declaration submitted by the Government of India on 18 September, 1974|
|13||The Government of India reserves the right at any time, by means of a written notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such notification, either to amend or terminate the present declaration.||This is new addition in the revised Declaration. Determinative text of the reservation to specify State’s denunciation to withdraw compulsory jurisdiction with effect from a certain date|
 Christian Tomuschat, ‘Article 36’, in Andreas Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary, Second Edition, (OUP, 2012).
 Para (vi) of the UK’s revised Declaration dated 22 February 2017
 including 7 States who had made Declaration under similar compulsory jurisdiction of Article 36, para. 3 of the Statute of the Permanent Court of International Justice which are deemed to be still valid. A complete and updated list is available at www.treaties.un.org
 Christian Tomuschat, supra Andreas Zimmermann et al. (eds), at pp. 546
 This of course does not preclude the possibility of application on the basis of Article 39, para 1.