Introduction and History of Compulsory Jurisdiction
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 a “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 on this review of compulsory jurisdiction an illustration of how compulsory jurisdiction is an international justice utopia, and a very ancient one, indeed. 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 chimera, but also an illogical premise within the International Law because mandatory jurisdiction would completely obliterate the States´ sovereignty and a State without sovereignty is not a State and, accordingly, it is an institution that does not concern the International Law.
International Law and its branch, International Justice, have as their main object the relationship between sovereign entities, the States.
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 concerned States to define whether the object of a dispute imperils its independence or not, and not on 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 of the 1899 Convention for the Pacific Settlement of International Disputes, being accorded, then, that the jurisdiction of the international adjudicatory body created by that convention (the Permanent Court of Arbitration) over disputes would require 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”.
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. However, mandatory proceeding 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 enquiry 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 accord ance with existing treaties, shall be submitted for investigation and report to a Commission to be established in the manner provided for in Article IV.”
Conventions without a pre-defined object of dispute settlement
The conception of compulsory jurisdiction evokes the opposite idea of consented jurisdiction, which is deemed to exist in agreements with a delimited subject-scope. In this case, a given dispute is referred to arbitral or judicial adjudication with the object of jurisdiction restricted to a pre-defined consented matter. For instance, the OSPAR Convention, in which the subject matter is duly defined, the marine environment of the North-East Atlantic and the necessity for providing coordinated protection for it. Hence, the dispute settlement mechanism of Article 32 of the Ospar Convention has a delimited scope of action.
Conversely, compulsory jurisdiction can only emerge as a clause in treaties without a pre-defined object of dispute settlement, such as the Article II of the 1948-Pact of Bogotá [2], where it is established an obligatory mechanism of judicial or arbitral dispute resolution without connection to a specific subject matter restricting its scope of incidence.
Restriction on Sovereignty
As compulsory jurisdiction, also called mandatory jurisdiction, constitutes a severe restriction on the States´ sovereignty, it should be drawn on express words and never assumed to exist between lines. Moreover, its terms should be written clearly, not allowing room for doubts, because obligatory jurisdiction cannot be presumed. The jurisprudence of all international courts and tribunals is in the sense that dispositions in treaties cannot be interpreted against the States´ sovereignty, for instance, as it was held in the Lake Lanoux Case, where Spain´s contention related to the obligation of obtaining consent upon France was not upheld because would impair the defendant´s (France) sovereignty.
Compulsory Jurisdiction´s Restriction Clause
There is not unconditional compulsory jurisdiction, which is always subject to a restriction clause. Those restrictions are expressed in distinct ways, but invariably are designed to weaken the compulsory jurisdiction´s obligation in favor of the States´ sovereignty; otherwise, no State would accept to be party to treaty that eradicate its authority, when it comes to define whether to accept that a dispute be referred or not a international adjudication. Thus, on the “menu” there are words such as “vital interests”, “independence”, “honor”, “domestic jurisdiction”, “disputes of a juridical nature”, or “exhaustion of local remedies”.
Before the Second World War, States used to introduce in treaties with general undertaking to obligatory jurisdiction an additional clause referring to vital interests of the contracting States, their independence, or their honour as situations under which jurisdiction would not remain mandatory. For example, as it is read in the Arbitration Treaty Agreement between the United States and Brazil, signed at Washington, on January 23th, 1909, in the aftermath of the 1907-Second Peace Conference (The Hague) [3]:
ARTICLE I. Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two high contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two high contracting parties
It is difficult to draw an objective definition of “vital interests” [4], but it may be apprehended as highly political or sensitive issues. Nevertheless, there is a distinction between political questions and politically sensitive, which are admittedly blurred in practice [5].
Given the broad compulsory jurisdiction contained in Article II of the Pact of Bogotá, there is only one restriction on it consisting of the “domestic jurisdiction” of the State conceived in Article V:
It is of crucial importance to underline that the restriction clause of “domestic jurisdiction” on a treaty (convention, protocol, accord) establishing a general obligation to submit dispute to a third-party adjudication, either arbitral or judicial, is not to be confused with the restriction clause consisting of “exhaustion of local” or “domestic remedies”, for the former constitutes a terminative or definitive objection to a court´s jurisdiction. In contrast, the latter represents solely a temporary obstacle that does not prevent the re-initiation of proceedings, as long as the dispute has previously gone through the domestic judicial circuit of the respondent State.
The Article 2 of the General Treaty of Inter-American Arbitration, Signed at Washington, January 5, 1929 (ratifications) provides that “There are excepted from the stipulations of this treaty the following controversies: (a) Those which are within the domestic jurisdiction of any of the Parties to the dispute and are not controlled by international law”.
As for “juridical nature”, this is a restrictive expression employed in Article XXXI of the American Treaty on Pacific Settlement (Pact of Bogotá, signed on April 30th, 1948):
ARTICLE XXXI. In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation. ARTICLE XXXV. If the Court for any other reason declares itself to be without jurisdiction to hear and adjudge the controversy, the High Contracting Parties obligate themselves to submit it to arbitration, in accordance with the provisions of Chapter Five of this Treaty.
And what is a dispute of a “juridical nature”? It is considered the one that can be settled by applying the principles of international law, in simple terms, being the juridical nature of a dispute an interesting topic of justiciability. [6]
Moreover, “juridical nature” should not be regarded as a restrictive clause on compulsory jurisdiction, but rather a pre-requesite of jurisdiction in general, since it concerns mainly the “proper bounds of the judicial function, and reflects the recognition that not all disputes are suitable for judicial settlement” [7]. Since the Permanent Court of International Justice – the forerunner of the current International Court of Justice – the admissibility of a dispute is subject to legal criteria, being by that court defined during the Mavrommatis case, in 1924, that:
“A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”
So, a conflict between two or more States will be eligible for international adjudication only if it qualifies juridically as a dispute. Hence, the “juridical nature” of a dispute is not a “restriction” on compulsory or consented jurisdiction but instead an intrisinc condition of the jurisdiction.
Interhandel Case (Switzerland v. United States of America) and Panevezys-Saldutiskis Railawy (Estonia v. Lithuania)
To further understand “domestic jurisdiction” (obstacle to compulsory contentious jurisdiction) and “exhaustion of local remedies” (restriction to access to contentious jurisdiction) in the States´ practice before the International Court of Justice, it is relevant to consider the Interhandel Case. Whereas the defendant (US) has raised an objection consistent with a “domestic jurisdiction”, viz. a definitive obstacle to the compulsory jurisdiction of the International Court of Justice, the ICJ upheld that preliminary contention as an “exhaustion of local remedies”, which is not a permanent and insurmountable barrier to the ICJ´s international jurisdiction because, once going through the judicial domestic system thoroughoutly, the demand can be renewed in the international forum. (See the post Interhandel Case: Domestic Jurisdiction and Exhaustion of Local Remedies).
Further, the Permanent Court of International Justice considered another relevant judgment on “exhaustion of local remedies” in 1938 when entertaining the Panevezys-Saldutiskis Ralway case between Estonia and Lithuania. (See the post: Panevezys-Saldutiskis case and Exhaustion of Local Remedies as a presupposition for international adjudication.)
Kompetenz-Kompetenz
Considering that restrictions to compulsory jurisdiction and the compulsory jurisdiction itself are of cardinal importance when defining whether a dispute is justiciable (eligible for the court´s entertainment), a relevant aspect of the issue is defining the authority to hold that question.
In light of the principle of Kompetenz-Kompetenz, which establishes that a court is competent to judge its own jurisdiction on a case, regularly, the existence and to what extent compulsory jurisdiction affects a case is to be decided by the court seized of the claim. Usually, all statute of international courts or tribunals contains a clause on that issue, for instance, the UN Convention on the Law of the Sea:
However, the States parties to an international organisation or in a given peaceful dispute agreement may determine that the compulsory jurisdiction or its eventual restrictions are to be considered by the concerned States, not being of the Court´s competence its appreciation though. Notwithstanding that it is a rare occurrence, it may be consigned in a treaty, such as Article IV of the drafted plan of arbitration treaty, during the First International Conference of American States, the eighteen convened States in Washington (Oct. 2, 1889-Apr. 19, 1890):
The
However, it is necessary to check the court´s statute and the agreement upon which the court’s competence is referred. Contention Jurisdiction in the International Tribunal for the Law of the Sea
ICJ, ITLOS, ICC, PCA. Arbitral Tribunals: Principle of the Kompetenz-Kompetenz (competence-competence).
The UNCLOS System and the
1982-UNITED NATIONS CONVENTION ON THE LAW OP THE SEA
What is compulsory jurisdiction?
[1] Plan of Arbitration drafted in the First International Conference of American States, held in Washington from October 2, 1899, to April 19, 1890.
[2] The Ninth International Conference of American States, meeting in Bogotá, Colombia, in 1948, with the participation of 21 States, adopted the Charter of the Organization of American States, the American Treaty on Pacific Settlement (“Pact of Bogotá”), and the American Declaration on the Rights and Duties of Man. The same Conference also adopted the Economic Agreement of Bogotá, which sought to advance economic cooperation among the American States. However, it never entered into force: See OAS website. 1948-American Treaty on Pacific Settlement:
[4] For discussion of the pre-war use of the term “vital interests.” etc., see H. Wehberg, “Restrictive Clauses in International Arbitration Treaties,” this JOURNAL, 1913, Vol. 7, p. 308 et seq.; also A. Cavalcanti, ” Restrictive Clauses in International Arbitration Treaties,” ibid., 1914, Vol.8, pp. 726-728. For a later view, see N. H. Hill, “International Jurisdiction and Domestic Questions,” Southwestern Political and Social Science Quarterly, 1929, Vol. 10, p. 22. APUD: Whitton, John B., and John Withrow Brewer.
[5] Odermatt J. Patterns of avoidance: political questions before international courts. International Journal of Law in Context. 2018;14(2):221-236. doi:10.1017/S1744552318000046.
[6] “Problems Raised by the General Treaty of Inter-American Arbitration.” The American Journal of International Law, vol. 25, no. 3, 1931, pp. 447–68. JSTOR, https://doi.org/10.2307/2189828. Accessed 2 Mar. 2025.
[7] Collier, J. and V. Lowe. The Settlement of disputes in international law. (Oxford University Press, 1999) [ISBN 0198256689, 190-199.
