INTERNATIONAL LAW
W.B. Fisch Fall 2008
Assignment #11

B) The International Court

1) The Jurisdiction of the International Court

1. Art. 36 of the Statute

a. Cases referred by the parties

i. By special agreement after dispute arises (Minquiers & Ecrehos)

ii. By special agreement in advance of dispute, as in a multilateral treaty that provides for ICJ jurisdiction(U.S.-Iran)

b. “Optional clause” compulsory jurisdiction without special agreement, para. 2

i. General submission for “all legal disputes”

ii. Effective vis-a-vis any other state making the same submission (“general reciprocity”)

iii. Para. 3: May be made

(1) on condition of reciprocity on part of several or certain states, or

(2) for a certain time

iv. Reservations made by many states, led by the U.S. in 1946, limiting scope of submission

(1) “Connally”, concerning domestic jurisdiction, “self-judging”

(2) “Vandenberg”, concerning multilateral treaties, necessary parties provision

(3) new special reciprocity clause reserved by Australia (2002), Cyprus (2002), Slovakia (2004), UK (2004): other part(ies) to the dispute can’t have submitted to the OC solely for that dispute, or less than 12 months prior to the application; Portugal (2005) reserved only the 12 month clause

(4) effect of reservations: nn. 2,3 pp. 310-311

v. 65 States have current declarations (Dominica most recent, 2006)

vi. Notable withdrawals:

(1) France after Nuclear Test Ban decision (v. Australia)

(2) U.S. after Nicaragua decision

vii. Notable non-signers: China, South Africa, Turkey, Brazil, Israel, some other Latin-American countries, Russia, Germany, Italy

2. Composition of the Court

a. In general: Arts. 3 and 4 of the Statute (CB p. 907)

b. Judges ad hoc, art. 31 (CB pp. 912-3)

2) Contentious Cases at the ICJ

THE MINQUIERS AND ECREHOS CASE, p. 284 (1951)

1. How did the case get before the Court, and why this court rather than arbitration?

2. What rules of law did the Court apply? Who had the burden of proof?

THE DIPLOMATIC AND CONSULAR STAFF CASE, p. 294 (1980)

1. How did the case get before the Court? Was there any alternative forum available?

2. How did the Court deal with Iran’s refusal to participate?

a) Did it render a default judgment? Should such a device be available to the Court?

b) What was the nature of Iran’s objection to the Court’s jurisdiction?