On the ICJ and its compulsory jurisdiction

Pakistan has historically adopted a positive attitude both to international law generally and the settlement of international legal disputes by the Court specifically

On the ICJ and its compulsory jurisdiction

On the 18 April 2017, Pakistan notified the United Nations depository of a new declaration under the Optional Clause to the International Court of Justice (ICJ), replacing its earlier Declaration made on 12 September 1960. The new declaration, which narrows the scope of disputes that Pakistan is willing to submit to compulsory jurisdiction marks a shift in Pakistan’s attitude towards the court. The optional clause allows states to make a unilateral declaration recognising the jurisdiction of the court as binding with respect to any other state that has made a similar declaration. This creates a class of states that are willing to resolve disputes between themselves through the court.

The ICJ, which is the principal judicial organ of the UN was founded on the basis of consent. The optional clause, which operates under Article 36(2) of the ICJ Statute, is one of three ways in which the court can assert jurisdiction in contentious cases. The other two are of a case being voluntarily referred to it and a dispute resolution clause in a treaty under Article 36(1) of the ICJ Statute.

The case brought by India concerning the denial of consular access to Kulbhushan Jadhav is brought under Article 36(1) under a dispute resolution clause in a treaty signed by both parties: the Optional Protocol concerning Compulsory Settlement of Disputes (1963) to the Vienna Convention on Consular Relations 1963 (Protocol to the VCCR). This has nothing to do with the compulsory jurisdiction of the court under Article 36(2) as was argued by Pakistan’s counsel in the ICJ. Nor as the court made clear would the Agreement on Consular Access (2008) between Indian and Pakistan be enough to contract out of the Protocol to the VCCR since it does not even refer to the earlier treaty. As such, Pakistan should have agreed to provisional measures without an oral hearing.

It is disappointing to see Pakistan narrow its acceptance to the optional clause to such an extent as to defeat the purpose of joining those states that accept the compulsory jurisdiction of the Court

By submitting a declaration, a state agrees that all other states that have made a similar declaration may bring a case against them to the ICJ and vice versa. States are entitled to make reservations when making such a declaration limiting the categories of disputes they are prepared to submit to compulsory jurisdiction. They are also free to withdraw their consent. Since the compulsory jurisdiction of the court operates on the principle of reciprocity, the court will only have jurisdiction to the extent that an issue is covered by the declarations of both parties, in other words, the lowest common denominator.

In 1974, India entered one the most extensively reserved optional declarations ever made to the ICJ, excluding numerous categories of disputes, such as "disputes with the government of any state which is or has been a Member of the Commonwealth". The purpose of narrowing India’s compulsory jurisdiction was to make it impossible for Pakistan to ever bring a claim under its optional declaration to the ICJ, for example, the Kashmir dispute. This had the incidental effect of preventing India from bringing a claim against Pakistan under the gateway of compulsory jurisdiction since Pakistan could rely on India’s reservations as between them.

The recent case instituted by the Marshall Islands in 2014 against Pakistan prompted criticism from some quarters about Pakistan’s optional declaration. In an article published by Dawn on 29 May 2014, entitled ‘Reactive Pakistan’, Sikander Ahmed Shah compared Pakistan’s declaration with India’s extensive reservations, asking why "Pakistan binds itself to certain international obligations unnecessarily?" The answer to that question is that Pakistan has historically adopted a positive attitude both to international law generally and in settlement of international legal disputes by the court.

It seems now that Pakistan has followed India’s bad example in entering a declaration with numerous extensive reservations. As a result, it now has one of the most restrictive optional declarations to the court. Building on its 1960 Declaration, it now excludes from the compulsory jurisdiction of the court disputes pertaining to hostilities and armed conflicts, national security, delimitation of maritime zones, territorial disputes, any dispute existing before the Declaration, and disputes where the other party has accepted compulsory jurisdiction for bringing a claim.

Many of these reservations have been taken almost word for word from India’s Declaration. Unlike the Indian declaration, Pakistan has added a reservation for "national security". Interestingly the reservation against hostilities, in contrast to India’s declaration, also covers "the deployment of armed forces abroad". Unlike its earlier declarations, it reserves the right to amend or terminate the declaration with immediate effect.

It is not clear what motivated the new declaration. Perhaps it was a reaction to the Marshall Islands case, which was thrown out by the court last year for the absence of a "dispute" with Pakistan.

A more plausible explanation is that Pakistan was seeking to forestall India from modifying its declaration and bringing a claim on behalf of Jadhav under its old declaration. This is suggested by one of the misconceived arguments raised by Pakistan’s counsel in his oral submissions to the court that the new declaration would exclude the jurisdiction of the court because of the new reservation in cases of “national security". What should, however, be clear is that Pakistan’s modified declaration will not have the effect of preventing India’s Jadhav claim being brought under the dispute resolution clause of a treaty (Protocol to the VCCR). If this was the motive behind the change, not only will it not achieve this goal but also Pakistan’s Declaration would have been changed for no reason.

Judge Manfred Lachs described the ICJ as "the guardian of legality for the international community as a whole". A confident nation that complies with the international rule of law should not be afraid of foreign nations bringing claims against it. It is, therefore, disappointing to see Pakistan narrow its acceptance to the optional clause to such an extent as to defeat the purpose of joining those states that accept the compulsory jurisdiction of the court, sacrificing its long-held position for the sake of a short-sighted reaction to present events.

The writer is a Senior Teaching Fellow at School of Oriental and African Studies, University of London