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:

1. the interpretation of a treaty;
2. any question of international law;
3. the existence of any fact which, if established, would constitute a breach of an international obligation;
4. 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^[1]. 

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”)^[2]. 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^[3], 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”^[4]. 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^[5], 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] Christian Tomuschat, ‘Article 36’, in Andreas Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary, Second Edition, (OUP, 2012).

[2] Para (vi) of the UK’s revised Declaration dated 22 February 2017

[3] 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

[4] Christian Tomuschat, supra Andreas Zimmermann et al. (eds), at pp. 546

[5] This of course does not preclude the possibility of application on the basis of Article 39, para 1.