Nicaragua's Impacts on Optional Clause Practice

NICARAGUA BEFORE THE INTERNATIONAL COURT OF JUSTICE: IMPACTS ON INTERNATIONAL LAW, Edgardo Sobenes and Benjamin Samson, eds, Forthcoming

Posted: 29 Sep 2016 Last revised: 4 Oct 2016

See all articles by Brian McGarry

Brian McGarry

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty

Date Written: September 23, 2016

Abstract

As we mark 30 years since Nicaragua prevailed in a watershed case before the ICJ, it is worth noting that Nicaragua’s practice under the Optional Clause of the ICJ Statute has coincided with rising numbers of declarations in force and applications instituting proceedings on that basis. The combined creativity of Nicaragua and the Court has propelled those trends by refining the international legal community’s understanding of this conceptually challenging provision of the Statute. In particular, Nicaragua v. United States has influenced the complexity of reservations and conditions in States’ declarations, as well as parties’ argumentative tactics in subsequent disputes. The present paper reviews the Court’s treatment in that case of the history and features of Article 36(2) of its Statute, assesses the theoretical, jurisprudential, and diplomatic consequences of those decisions, and investigates questions which Nicaragua has posed but not resolved during three decades of Optional Clause practice. The author concludes that the Nicaraguan cases have invigorated this jurisdictional mechanism — and thus the maintenance of international peace and security — beyond what might reasonably be expected from a more rigid system of compulsory dispute settlement.

Available upon request to the author at brian.mcgarry@graduateinstitute.ch.

Keywords: compulsory jurisdiction, State practice, unilateral declarations, law of treaties, inter-State litigation

JEL Classification: K33

Suggested Citation

McGarry, Brian, Nicaragua's Impacts on Optional Clause Practice (September 23, 2016). NICARAGUA BEFORE THE INTERNATIONAL COURT OF JUSTICE: IMPACTS ON INTERNATIONAL LAW, Edgardo Sobenes and Benjamin Samson, eds, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2842630

Brian McGarry (Contact Author)

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty ( email )

Villa Moynier
Rue de Lausanne 120 B
Geneva, 1211
Switzerland

HOME PAGE: http://www.mids.ch/the-school/directors-staff.html

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