Related Post: Dispute Settlement Agreements
Introduction
“Compulsory jurisdiction” is not an existing concept in view of domestic jurisdiction in municipal law, owing to States´ sovereignty over individuals within their territorial limits, so their jurisdiction is always mandatory, even when domestic courts hold there was no jurisdiction over a given case. By the way, we can also assure that jurisdiction always exists. What happens is that it might not be applied fully (on the merits of a conflict) when an objection impedes judges from legally seizing the bottom reasons of the case.
In the domain of International Law jurisprudence, though, the term compulsory jurisdiction is of historic usage. However, truly, jurisdiction is jurisdiction; this is a monolithic jurisprudential category, so it can neither be broken down nor classified according to the acceptance addressed to it by States when they ratify a dispute settlement agreement.
Given that States´ will admits “degrees,” accordingly and appropriately, what may change or vary, in light of the international adjudication, is not the jurisdiction itself, which is always the same, but rather the States´ consent.
The same logic applies to contracts in general and to treaties. What is really subject to levels (more or less) of acceptance or adherence to a treaty or clause in a treaty, where jurisdiction is concerned, is consent.
To conclude, “compulsory jurisdiction” is a juridical metonymy; the term “unconditional consent to jurisdiction” is more accurate.
Definition of Compulsory Jurisdiction
What is compulsory jurisdiction?
Compulsory jurisdiction is the total acceptance or full consent of the State to submit legal disputes to international adjudication, entailing binding solutions according to the pre-established objective and subjective conditions outlined in a treaty or clause and compliance with the adjudicatory outcome.
There is rare pure compulsory jurisdiction or full acceptance of international adjudication by States because the greater the scope of mandatory jurisdiction, the lesser the extension of sovereignty over their disputes on the international stage. Hence, compulsory jurisdiction is regularly subject to certain agreed-upon prerequisites or relatively curtailed by reservations of the adherent States. Compulsory jurisdiction may also be referred to as obligatory jurisdiction.
Advisory and Contentious Jurisdiction
There are two distinct types of jurisdiction: advisory and contentious. Overall, whereas the former is intended to provide a non-binding judicial opinion over a matter, providing guidance, the latter is for adjudication of a conflict of interests, which is resolved by a binding and definitive decision; accordingly, compulsory jurisdiction is related exclusively to contentious jurisdiction.
It is relevant to mention that mandatory proceedings imposed upon disputant States in a treaty may be of a different nature, that is, not only jurisdictional or adjudicatory, but, for instance, a mandatory proceeding consisting of undertaking an inquiry commission, even considering that its outcome is not binding. That is the case of the 1923-Gondra Treaty, in which Article I establishes that “All controversies which for any cause whatsoever may arise between two or more of the High Contracting Parties and which it has been impossible to settle through diplomatic channels, or to submit to arbitration in accordance with existing treaties, shall be submitted for investigation and report to a Commission to be established in the manner provided for in Article IV.”
Lastly, it is emphasized that jurisdiction, in relation to compulsory matters, is understood in a broader sense, including both judicial and arbitral adjudication.
Optional Jurisdiction and Optional Clause
Optional jurisdiction constitutes the clause in a treaty or treaty in which States consent to adjudicatory resolution of their disputes solely when they agree on that method of pacific settlement of their differences. Generally, the optional jurisdiction requires a declaration of the State or other official document or even a behaviour clearly expressing the acceptance of the jurisdiction. See, by the way, forum prorogatum. The 1899 Hague Convention for the Pacific Settlement of International Disputes and the subsequent 1907 Hague Convention for the Pacific Settlement of International Disputes are agreements establishing optional jurisdiction. Through bilateral agreement, Brazil and the US have turned the optional jurisdiction from the 1899 and 1907 Conventions into compulsory jurisdiction, signing an arbitral agreement to that end at Washington on 23 January 1919.
Optional jurisdiction is the clause in a treaty or the dispute settlement treaty establishing the adjudication as a means to settle disputes, allowing States, in the event of an arising conflict, to submit it to adjudication through arbitral or judicial proceedings on the ground of a special agreement or compromise. Treaties establishing optional jurisdiction are devoid of legal efficacy in the sense that they do not constitute any obligation to resolve disputes by adjudication. For instance, the aforementioned 1899 and 1907 Conventions for the Pacific Settlement of International Disputes.
The accession to those conventions neither turns adjudication obligatory nor creates the burden for ratifying states to express reservations, inasmuch as those conventions provide optional jurisdiction. There are international conventions that establish the obligation to resolve differences through peaceful means, but these do not automatically require that disputes be submitted to adjudication (either judicial or arbitral). Examples of such conventions include the 1945 United Nations Charter and the 1948 Organization of American States Charter. That is to say: There is no obligation to settle disputes by adjudication, solely the obligation to resolve the dispute by any amicable means.
There is a relevant distinction between the obligation to submit a dispute to adjudication and the obligation to resolve a dispute through peaceful means. The former arises from a treaty that provides for compulsory jurisdiction, while the latter is a general obligation under international law that States assume through treaties, where adjudication is one of the available options.
Differently, the 1928 General Act (Pacific Settlement of International Disputes), adopted in Geneva, Switzerland, on 26 September 1928, forges the obligation to adjudicate disputes unless has the concerned adherent State made reservations. In other words, the obligation to accept adjudication is patent. Notice, then, the terms of Article 19:
The 1945 UN Charter and the 1948 OAS Charter are treaties that provide for optional jurisdiction. In contrast, the 1928 General Act goes further by establishing a system of obligatory (compulsory) jurisdiction. As a result, the 1928 General Act experienced low levels of accession but high levels of reservations, as states are generally hesitant to consent to compulsory jurisdiction.
The optional clause is a specific disposition in a convention, treaty, protocol, or statute in which a non-obligatory adjudication is provided in the event of a dispute, but the State willing to turn it into a compulsory jurisdiction has the option to consent to it under (or not) conditional reservations. The optional clause is a juridical technique to produce political effects, allowing that the mandatory jurisdiction be an option to be reflected by States, and not a sine qua non clause to be accepted or withdraw the treaty. During the US Senate proceedings on August 2nd, 1946, when the Morse Resolution was being considered, it was clear that the US adherence to the UN Charter and, consequently, to the Statute of the International Court of Justice solely became possible because the ICJ jurisdiction was facultative but being able to become compulsory by a later separate will manifestation.
The origin of the optional clause is attributed to Sr. Raul Fernandez, a Brazilian jurist appointed to the 1920 Advisory Commission of the League of Nations, charged with drafting the statute of the Permanent Court of International Justice. Both the Statute of the extinct Permanent Court of International Justice and the current International Court of Justice contain in Article 36 (2) the optional clause
History of Compulsory Jurisdiction: Where are its origins?
During the First International Conference of American States, the eighteen convened States in Washington (Oct. 2, 1889-Apr. 19, 1890), named “the Republicans of North, Central, and South America”, drafted the 1890 plan of arbitration treaty“, which envisaged obligatory jurisdiction of arbitral courts on matters concerning “diplomatic and consular privileges, boundaries, territories, indemnities, the right of navigation, and the validity, construction, and enforcement of treaties” (Article II), being also “obligatory in all cases other than those mentioned in the foregoing article, whatever may be their origin, nature, or object” (Article III).
Those were dispositions of compulsory jurisdiction (relied on arbitral courts), which suffered, however, a degree of reduction in the following Article IV, where it was announced that “obligatory arbitral solution” for disputes would be “optional” when the “questions” – “in the judgment of any one of the nations involved in the controversy” – “may imperil its independence”.
That “plan of arbitration” has never become a treaty. Nevertheless, it is recalled in this review of compulsory jurisdiction as an illustration of how compulsory jurisdiction is not a fresh issue of International Law.
Ten years later, in 1899, during the First Peace Conference held at the Hague, the possibility of a convention on the pacific settlement of disputes to be created in mandatory terms was again debated; however, it was not accepted.
As far as the compulsory jurisdiction is reviewed in the timeline of International Justice, it is remarkable that undertaking States an obligation to submit their disputes to third-party adjudication unconditionally is not only a chimaera, when the objective is to keep peace and security.
By the way, reading carefully Article IV of that 1890-plan of arbitration, we see it functions as a disguised mechanism nullifying the compulsory jurisdiction of the previous Articles II and III because, as long as it hinges on the concerned States´ will to define whether the object of a dispute imperils their independence or not, and not upon the competent court to entertain that dispute (due to the principle of competence of competence), obviously, the disputant States will have the exclusive power to decide whether it accepts or not to have a dispute referred to the court, since it suffices to allege that “the question imperils its independence” to turn down the court´s jurisdiction.
Throughout the First Peace Conference, the mechanism of international adjudication in terms of compulsory jurisdiction was brought to the fore and dismissed by the 1899 Convention for the Pacific Settlement of International Disputes, being accorded, then, that the international adjudicatory body created by that convention (the Permanent Court of Arbitration) would have jurisdiction over disputes solely after a “compromis” (or special agreement), pursuant Article 31 of the 1899 Convention for the Pacific Settlement of International Justice.
After the First World War, the Council of the League of Nations appointed a Commission of International Jurists to draft the Permanent Court of Justice statute, when the issue of compulsory jurisdiction was again at the centre of legal technical debate. Among those ten jurists, a Brazilian stood out with the mechanism of the “optional compulsory jurisdiction”.
Not so long later, after WWII (1945), when the UN Charter was under discussion, compulsory jurisdiction was approached and once again rejected. Additional reading on compulsory jurisdiction connected with the ICJ: Lawson, Ruth C. “The Problem of the Compulsory Jurisdiction of the World Court.” The American Journal of International Law, vol. 46, no. 2, 1952, pp. 219–38. JSTOR, https://doi.org/10.2307/2194059. Accessed 25 Mar. 2025.
