Compromissory Clauses and the Jurisdiction of the International Court of Justice

Many governments are reluctant to submit disputes voluntarily to the International Court of Justice for binding adjudication. Only a few disputes are brought to the Court with the current agreement of all the parties. When that happens, no matter what the technical basis for the Court’s jurisdiction may be—a compromis, compulsory jurisdiction, or a compromissory clause in a substantive international agreement or an optional protocol—the Court’s jurisdiction is unlikely to be questioned. When the respondent state does not wish the dispute to be submitted to the Court, however, the applicant state must compel adjudication by relying on jurisdiction founded upon the respondent state’s consent given in the past. Consent may be found in declarations accepting the compulsory jurisdiction of the Court provided for in Article 36(2) of its Statute. Alternatively, such consent may be found under Articles 36(1) or 37, which permit jurisdiction to be based on compromissory clauses.