Last Updated on March 30, 2024 by Ranking

This article has drawn attention to an important inconsistency between the United Kingdom’s self-image as a country committed to the ICJ and its actual conduct vis-à-vis the Court.

• From a British perspective, the idea of the rule of law ‘is at its heart a British one’.1 Early traces of an embryonic notion of the rule of law can be found in the 1215 Magna Carta.
• This article has drawn attention to an important inconsistency between the United Kingdom (UK)’s self-image as a country committed to the ICJ and its actual conduct vis-à-vis the Court. This inconsistency, it was argued, has broader implications for the country’s ambition to be regarded as an advocate of the international rule of law given that access to international adjudication, in relation to the most important judicial body of the UN, represents an important component of the rule of law at the international level.
• The UK itself endorses this notion of the international rule of law, depicting its acceptance of the obligatory jurisdiction of the ICJ as a sign of its broader commitment to that principle.
• This article has argued that, if the UK is serious about its pledge to the ICJ, it should be prepared to have the legality of its conduct scrutinized by that judicial body.
• The British declaration recognizing as compulsory the jurisdiction of the Court includes a number of far-reaching reservations that drastically limit the capacity of the ICJ to hear a dispute involving the UK.
• To the extent that the UK wishes to present itself as a genuine supporter of the ICJ and the international rule of law, it should rethink the approach to its optional clause declaration, which is currently designed to evade, at its convenience, the jurisdiction of the Court.

Introduction

From a British perspective, the idea of the rule of law ‘is at its heart a British one’.1 Early traces of an embryonic notion of the rule of law can be found in the 1215 Magna Carta.

Today, the rule of law is crucial to the correct functioning of the United Kingdom’s (UK) system of government, and a defining element of the country’s political identity.

Given these premises, it is not surprising that the UK has long committed itself to honouring the rule of law at home, and to promoting it abroad.

This foreign policy effort is aimed at encouraging other States to uphold key values such as the supremacy of the law, equality before the law, and accountability to the law as part of their domestic systems.

Post-Brexit Global Britain, he announced, will be: ‘more than just international trade and investment’; it will be about ‘continuing to uphold our values of liberal democracy and our heartfelt commitment to the international rule of law—values for which we are respected the world over’.

This self-proclaimed commitment to the international rule of law will be the focus of this article.

This article will question Britain’s self-image as a country that abides by the international rule of law by focusing on a less discussed, yet important, aspect of the latter, namely access to international adjudication.

It will do so through a political and legal analysis of the nature and extent of the country’s commitment to the most important judicial body operating at the international level, that is, the International Court of Justice (ICJ or Court).

While States are not legally obliged to settle their disputes through the ICJ, an important correlation exists between this key judicial institution and the rule of law at the international level.

The International Rule of Law and the International Court of Justice

The international rule of law lacks a universally agreed definition. This is not too surprising considering that such a definition would require the convergence of views of nearly 200 States and that even the domestic rule of law remains an ‘uncertain concept’.13 One should refrain from drawing direct analogies between the national and international versions of the rule of law.

One should refrain from drawing direct analogies between the national and international versions of the rule of law.

This is so because of the decentralised and horizontal nature of the international legal system, which, founded on the principle of the equal sovereignty of States, does not provide for the existence of the three classic branches of national government that are, instead, central to the functioning of the rule of law.

It is for this reason that James Crawford once noted that ‘when we turn to international law, we might initially doubt whether the cardinal legal virtue of the rule of law can be looked for even in principle’.

This stringent limitation affects all international adjudicative bodies, including, crucially, what the UN Charter describes as the ‘principal judicial organ’ of the UN, that is, the ICJ.

The fact that an aggrieved State cannot pursue a legal claim before the ICJ without the consent of the respondent State represents a serious blow to the international rule of law, for it undermines one of its basic components, that is, access to justice

This problem has been widely acknowledged by international lawyers, and by various UN organs, which, in their efforts to promote the rule of law, have regularly emphasized the importance of referring inter-State disputes to the ICJ.

Before developing this investigation any further, it is necessary to consider the history and nature of optional clause declarations, examining, in particular, the question of reservations to these unilateral acts.

The ‘Optional Clause’ and the International Rule of Law

As already explained the ICJ only has jurisdiction over a State with its consent.

The ‘optional clause’ provides that a State may, at any time, declare that it recognises as compulsory the jurisdiction of the Court in relation to any other State accepting the same obligation.

From a rule of law perspective, the important point to make here is that the optional clause system represents the closest approximation to a system of compulsory jurisdiction in that it seeks to create a stable jurisdictional network among States aimed at enabling the ICJ to routinely solve international disputes.

For this reason, writing in 1945, Philip Jessup referred to optional clause declarations as ‘the greatest single contribution’ that States could make to the establishment of a strong and effective court, while, today, these declarations continue to be regarded as a touchstone of a State’s commitment to the ICJ.

France terminated its optional clause declaration in 1974 after the ICJ indicated provisional measures in a case concerning French nuclear tests conducted in the South Pacific; the US withdrew its declaration in 1985 following the Court’s finding that it had jurisdiction to entertain a case concerning the legality of American military activities in Nicaragua.

Against this background, the UK rarely misses an opportunity to remark that it is the only permanent member of the Security Council to have accepted the obligatory jurisdiction of the Court.

Since the time of the PCIJ, it has been common practice for States to limit the scope of their ‘optional clause’ declarations by means of reservations.

Footnote This practice is important both in legal and political terms.

In making the declaration a State is free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations.

It follows that States are well within their rights to accept the compulsory jurisdiction of the Court only to the extent that they see fit.

Its optional clause declaration must be carefully analysed in order to provide a more realistic assessment of the degree and genuineness of the country’s commitment to the most important judicial body of the UN and, in turn, the international rule of law.

The UK’s Optional Clause Declaration

The UK made its first optional clause declaration in 1929 in connection with the PCIJ. Since the very beginning, the British commitment to the Court was characterised by a certain degree of hesitancy.

The UK made its first optional clause declaration in 1929 in connection with the PCIJ.

Since the very beginning, the British commitment to the Court was characterised by a certain degree of hesitancy.

It is telling, for example, that by the late 1950s the UK had earned the ‘unenviable distinction’ of having added more reservations to its declaration than any other State.

While between and the late 1960s it reversed course by gradually reducing both the quantity and scope of its reservations, important limitations to the acceptance of the Court’s jurisdiction have continued to feature in its declaration up until today.

This is not to say that the UK is unique in its reluctance to fully accept the jurisdiction of the ICJ.

Most optional clause declarations are replete with reservations, some of which can be quite far-reaching.

As will be discussed below, the current version of the UK declaration includes a number of controversial conditions and limitations that hardly match its pro-rule of law rhetoric and amount to a de-facto ‘exit’ from the system of compulsory jurisdiction.

The Right to Terminate and Amend the Declaration with Immediate Effect

The first striking feature of the UK’s declaration is that it is both instantly terminable and modifiable. Since the time of its first declaration in 1929, the UK has accepted the compulsory jurisdiction of the Court only ‘until such time as notice may be given to terminate the acceptance’. In addition, since 1958, the UK has expressly reserved the right to ‘add to, amend or withdraw any reservation included in its declaration with immediate effect as from the moment of notification’. The fact that the UK is not the only country to have retained the right to terminate or amend its declaration instantly does little to dispel doubts over the appropriateness of these clauses, which have been decried for their ‘devastating’ effects on the system of compulsory jurisdiction. Thanks to them, the UK has the ability to prevent any State, which may contemplate initiating proceedings against it, from validly seizing the Court.

Some authors have pointed out that the validity of instantly terminable or modifiable declarations has never been addressed by the Court and, ‘remains open to serious doubt’.

The proponents of this view base their argument on Nicaragua, where the Court held that declarations that are silent as to their termination cannot be terminated with immediate effect but require, instead, reasonable notice.

The fact that States, which choose to make an optional clause declaration, are free to do so unconditionally or to qualify it with reservations, does not signify—the Court explained—that they are ‘free to amend the scope and the contents of [their] solemn commitments as it pleases’.

This freedom is curtailed, in particular, by the principle of good faith, which, playing a pivotal role in the functioning of the optional clause system, requires that States that have made a declaration are entitled to expect that other States, which have made a declaration, will act in accordance with the obligation that they have assumed.

In particular, by the principle of good faith, which, playing a pivotal role in the functioning of the optional clause system, requires that States that have made a declaration are entitled to expect that other States, which have made a declaration, will act in accordance with the obligation that they have assumed.

It is on the basis of this principle that the ICJ concluded that the declaration of Nicaragua, being silent as to its termination, could not be terminated with immediate effect.

This reasoning can be extended to the UK’s declaration inasmuch as the latter is seen as conflicting with the principle of good faith and the very spirit of the optional clause system.

By retaining the right to suddenly terminate and amend its declaration, the UK cannot be said to have truly committed, in advance, to the jurisdiction of the Court; instead, defeating the very purpose of the optional clause system, it has kept open the possibility of choosing, on an ad hoc Footnote basis, which dispute, to which it is a party, may be referred to that body.

The 2005 Amendment to the Commonwealth Reservation

The potential for an abuse of the clauses discussed was fully revealed in 2005 when the UK hastily amended its optional clause declaration in order to avoid unwanted litigation. The modification in question concerned the so-called ‘Commonwealth reservation’, which excludes from the jurisdiction of the Court any dispute between the reserving State and any other member of the Commonwealth.

Considering the British conduct to be in violation of the laws regulating the process of decolonisation, Mauritius sought in various ways to regain possession of what it considers unjustly lost territory.

Both States accepted the compulsory jurisdiction of the ICJ, the inclusion of the Commonwealth reservation in their respective declarations precluded the possibility of automatically referring the dispute to the Court.

Upon becoming aware of such intentions, the UK rushed to reformulate its reservation, with immediate effect, in order to exclude from the jurisdiction of the Court any dispute with current and former members of the Commonwealth.

This deliberate attempt to prevent Mauritius from referring the dispute to the ICJ is undoubtedly antithetical to the rule of law.

Judge Al-Khasawneh acknowledged that not all reservations ratione personae, that is, reservations intended to exclude from the Court’s jurisdiction disputes with certain States, are problematic.

He noted, for example, that those reservations that contextually identify alternative ways of peaceful settlement have a ‘reasonably defensible justification’.

Judge Bedjaoui, dissenting, conceded that a State has the sovereign power to choose whether, and to what extent, it wishes to participate in the optional clause system but noted that this does not imply that it is entitled to provoke the ‘implosion’ of that very system.

He observed that a declarant State ‘cannot swear fealty to international justice by submitting itself to the latter’s verdict in respect of those acts where it considers it has behaved correctly, while shunning that same justice in the case of those acts whose legality it fears may be questionable’.

These cases signal a certain hesitancy on the part of the ICJ to identify and sanction bad faith conduct.

Doubts can be, and have been, legitimately raised with regard to the appropriateness and the legal validity of this stratagem by virtue of its incompatibility with the very purpose of the optional clause system.

The Requirement of Prior Notice

In 2017, the UK further limited the scope of its declaration by adding new reservations to it.

The UK declaration includes a commonly used anti-ambush clause that excludes disputes where the acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute was deposited less than twelve months prior to the filing of the application.

This clause addresses the disadvantages faced by States that have made an optional clause declaration vis-à-vis those that have not.

The twelve-month cooling-off period guaranteed by the anti-ambush clause would allow a State like the UK, whose optional clause declaration is terminable and modifiable with immediate effect, to adjust the latter in order to avoid being sued by a State that has just accepted the compulsory jurisdiction of the ICJ.

This defensive tactic, can only work inasmuch as the respondent State is able to foresee the impending legal action.

In a rather surprising move, the ICJ accepted the UK proposition that, as a respondent State, it should have been ‘aware, or could not have been unaware’ that its views on international law obligations concerning nuclear disarmament were ‘positively opposed’ by the Marshall Islands.

That this was a controversial decision is confirmed by the fact that the Court reached the verdict in a split vote (8 to 8) with the casting vote of the President.

While it was pointed out that the Marshall Islands decision represents ‘the culmination of a judicial trend in which formalism and verbalism have replaced the objective assessment of facts by the Court’, it remains true that the ICJ had never before dismissed an entire case on the sole basis of the non-existence of a dispute between the parties.

This hardening of the Court’s position was criticised by several judges in their dissenting opinions.

The net effect of this is that, despite having formally deposited an optional clause declaration, the UK can hardly be said to have accepted the jurisdiction of the Court as compulsory, a paradox which, in turn, questions its commitment to international adjudication as an element of the international rule of law.

The Advisory Jurisdiction of the International Court of Justice

The first part of the article focused on the UK position vis-à-vis the ICJ’s contentious jurisdiction, which refers to the Court’s competence to decide legal disputes submitted to it by States.

As an instrument aimed to ‘guide the United Nations in respect of its own action’, advisory opinions contribute to strengthening the international rule of law by promoting compliance with international law within the UN and, more broadly, among the international community.

It is, not a coincidence that the 2012 UN Declaration on the Rule of Law that was mentioned in Sect.

A discussion of the advisory function of the ICJ is relevant in the context of this article given that the UK has recently come under the spotlight for its defiant response to an opinion rendered by the Court concerning the legality of the detachment of the Chagos Islands from Mauritius in 1965.

As a duly authorised organ to make such a request, the General Assembly asked the ICJ, first, to establish whether the decolonization of Mauritius had been lawfully completed when, after the excision of the Chagos Islands, the country gained independence; and, second, to determine the legal consequences arising from the UK’s continued administration of the archipelago.

In a way that is hardly reconcilable with its professed adherence to the international rule of law and respect for the ICJ, the UK chose to defy the opinion rather than taking credible steps to align with it.

It was only in November 2022, that is, more than three years since the opinion was rendered, that the UK acquiesced to open negotiations with Mauritius.

Footnote This marked a significant change in direction, which, cannot undo the reputational damage suffered by the UK as a result of its direct challenge to the authority of the Court.

The two sections will examine the merits of these two arguments as well as their implications for the UK’s self-image as a country supportive of both the ICJ and the international rule of law.

Circumventing the Requirement of Consent for International Adjudication

The fundamental principle according to which a State ‘is not obliged to allow its disputes to be submitted to judicial settlement without its consent’ has potential ramifications for the advisory function of the ICJ.

In 1974 the Court was asked by the General Assembly to determine the validity of Morocco and Mauritania’s territorial claims over Western Sahara.

The latter was at the time governed by Spain, the ICJ felt it appropriate to reply to the General Assembly’s request in the absence of Spanish consent because the legal controversy at the heart of the opinion was ‘located in a broader frame of reference than the settlement of a particular dispute’.

In Western Sahara, by contrast, the ICJ noted that, by being a party to its Statute and a member of the UN, Spain had ‘in general given its consent to the exercise by the Court of its advisory jurisdiction’.

In this way, the ICJ distanced itself from a rigid interpretation of the Eastern Carelia principle that would view State consent as a strict precondition for the exercise of its advisory jurisdiction, promoting, instead, a more elastic approach to requests for opinions somehow related to inter-State disputes.

Importantly, given the General Assembly’s earlier involvement in the question of Palestine, the Court considered that its advice was needed to assist the requesting organ in the exercise of its functions.

It follows that the Court’s decision to render an opinion in Chagos is fully aligned with its reasoning in earlier opinions.

In both Western Sahara and the Wall, the ICJ did not consider that to respond to the request of the General Assembly would have the effect of circumventing the principle of consent to judicial settlement and, chose not to exercise its discretion to decline to give an opinion on that ground.

In a move that clashes with its declared support for the ICJ and the international rule of law, it chose to challenge both the authority of the Court and the legitimacy of its pronouncement.

The Legal Effects of Advisory Opinions

On the 22nd of May 2019, the UN General Assembly considered a draft resolution introduced by Senegal on behalf of the Group of African States concerning the consequences of the Chagos opinion.

Advisory opinions represent definitive statements of the law that concur to direct State behaviour on the international stage.

In this respect, it should be emphasized that in the Chagos Footnote opinion the Court found the UK conduct to be in violation of the right to self-determination, notably a rule of customary international law, and specified that, as a result, its continued administration of the archipelago constitutes a wrongful act entailing international responsibility.

The Maldives contended that before being able to delimitate the relevant maritime boundary the chamber would necessarily have to solve a sovereignty dispute, notably something which falls outside the scope of its jurisdiction.

In rejecting these objections, the special chamber made two important remarks about the legal nature and effects of the Chagos opinion.

In light of all this, the special chamber dismissed the Maldives’ preliminary objections on the basis that a dispute over the status of the Chagos Islands no longer existed since the ICJ definitively determined that under international law the archipelago belongs to Mauritius.

This conclusion has been criticised for elevating advisory opinions to judicial decisions capable of ‘alter[ing] the rights or obligations of international legal subjects’.

Even the Maldives, which sought to minimize the impact of that pronouncement on its border dispute, acknowledged that the Court’s findings were ‘not wrong or lacking in authority’.

It follows that the UK’s claim of entitlement to disrespect the Chagos opinion because of its limited legal weight and non-legally binding nature is legally questionable and politically problematic as it stands in sharp contrast to its professed commitment to the ICJ and the international rule of law.

This act of defiance provoked even more controversy as it amounted to an attempt by a former colonial power to prevent one of its former colonies from obtaining justice.

This article has drawn attention to an important inconsistency between the UK’s self-image as a country committed to the ICJ and its actual conduct vis-à-vis the Court.

This inconsistency, it was argued, has broader implications for the country’s ambition to be regarded as an advocate of the international rule of law given that access to international adjudication, in relation to the most important judicial body of the UN, represents an important component of the rule of law at the international level.

The UK itself endorses this notion of the international rule of law, depicting its acceptance of the obligatory jurisdiction of the ICJ as a sign of its broader commitment to that principle.

Against this background, this article has argued that, if the UK is serious about its pledge to the ICJ, it should be prepared to have the legality of its conduct scrutinized by that judicial body.

To the extent that the UK wishes to present itself as a genuine supporter of the ICJ and the international rule of law, it should rethink the approach to its optional clause declaration, which is currently designed to evade, at its convenience, the jurisdiction of the Court.

To remedy this situation, the UK should, first, reformulate its declaration so as to make it terminable and amendable only subject to a period of notice of at least 6 months; and, second, withdraw the prior notification requirement that unduly elevates the awareness of the intention of another State to bring a case against it as a requirement for the exercise of the Court’s jurisdiction.

The UK’s attempt to present the Court’s opinion as being both illegitimate and devoid of any legal effect was, at best, legally questionable.

At another level, the consequent choice not to act in conformity with that pronouncement has degraded the country’s moral standing and political credibility, affecting, in turn, its ability to lecture other States about their international legal obligations.

To repair this damage and reposition itself as a country devoted to the international rule of law, the UK should take credible steps to align with the Court’s findings, bringing its conduct into line with international law and placing the opinion at the centre of the recently opened negotiations with Mauritius.

Source: Mauro Barelli