At the international level an international court is authorized to judge only if the state parties of a dispute have accepted its jurisdiction. One of the methods that enables the realisation of this is the inclusion of compromissory clauses in a treaty. Nevertheless, it may happen that these clauses are not applied for certain contracting parties, who decide to resort to the instrument of reservation.
International jurisdiction is one of the means by which international disputes are resolved. Among the most important international courts is the International Court of Justice (ICJ). This is regarded as the UN’s main judicial body, and is located in The Hague. This body is composed of permanent and independent judges. Principally, this court has replaced the preceding Permanent Court of Justice. Its statute was adopted in San Francisco in 1945, and it is an integral part of the UN Charter.
The ICJ can exercise its contentious function whenever there is a dispute of an international kind and the state parties involved have accepted its jurisdiction. Furthermore, it should be underlined that the parties of a case before the ICJ can solely and exclusively be states.
Acceptance of jurisdiction through compromissory clauses in treaties and conventions
States may give their consent to ICJ jurisdiction in various ways. The method which we mean to analyse is stipulated in article 36 par. 1 of its statute. This norm stipulates that: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”
Such conventions may include compromissory clauses. These clauses give jurisdiction to a certain judicial body for the resolution of any disputes that may arise in the future, in relation to the application or interpretation of the treaty.
In practice, there are various conventions that have norms of this kind, giving jurisdiction to the International Court of Justice. Among them we will recall in particular the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which is the basis for various disputes brought before the ICJ, and whose Article IX states that the International Court of Justice shall judge on every dispute concerning its application or interpretation.
The possibility of applying reservations
However, it is not guaranteed that a state which signs and ratifies a treaty will always accept ICJ jurisdiction, notwithstanding that this is stipulated by a specific compromissory clause in the treaty itself.
In international law the parties of a treaty have the opportunity to resort to the instrument of reservation.
Reservation is defined by article 2, let. d) of the Vienna Convention on the Law of Treaties of 1969, as follows: “a unilateral statement (…) made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.
The reasoning behind this is to make it easier for states to participate in multilateral treaties, especially considering the enormous growth of these in recent decades.
It is undoubtedly also possible to use the aforementioned instrument to exclude application of the provision defining the competent judicial body for every dispute concerning a given treaty, with consequent repercussions at a concrete level, particularly in relation to human rights issues.
If we again consider the Genocide Convention, there are various states which, despite being parties of the Convention, have decided to apply a reservation to article IX, excluding its application. There have also been numerous cases in which the ICJ has been called to adjudicate at disputes concerning the convention itself.
Some examples of current international significance
In order to better understand the practical consequences of the use of a reservation in relation to a compromissory clause, it should be noted that the issue of reservation to article IX of the Genocide Convention is also significant for certain issues that have recently been brought to the attention of the world’s media.
Among the states that have applied a reservation to the aforementioned article IX is China. Here the issue undoubtedly becomes even more relevant, especially recently, when, as is well known, China, with increasing intensity, has been widely accused of committing genocide and other atrocities against the ethnic group of Uyghurs, who are being detained in internment camps, their individual freedoms severely curtailed.
Unfortunately, the instrument of reservation prevents the case from being submitted to the ICJ, despite it being believed that human rights have been and continue to be violated.
Another recent case of international importance involves the accusations made against Myanmar regarding the genocide of another Muslim ethnic group, the Rohingyas.
For years, Myanmar is alleged to have violated the Rohingyas’ human rights, persecuting and severely discriminating against them, to the degree that some observers have spoken of “ethnic cleansing”. Here, however, it was possible to bring the case before the ICJ. The State of Gambia took the Myanmar government to court with the aim of ending its inhuman treatment of the aforementioned ethnic group.
Clearly, this was feasible only because no reservation to article IX had been made by the parties in question, and therefore, the ICJ, after a careful analysis concerning this and various other issues, was concluded to have prima facie jurisdiction to deal with the case.
Compromissory clauses and reservations, despite being in opposition due to the consequences deriving from their use, are undoubtedly important instruments that explain the peculiarity of international law. The former guarantee that jurisdiction is conferred to a certain international court, regarding disputes concerning a specific treaty, whereas the latter guarantee states a free choice of whether or not to give their consent to the operational functionality of an international stipulation. If these were not possible it would be considerably more difficult to obtain the successful approval of many conventions and treaties, given international subjects’ cultural, political, and legislative differences.
 There are also diplomatic methods; for further information about these, see: N. RONZITTI, Introduzione al Diritto Internazionale, V ed., Torino, 2016.
 P. PALCHETTI, Corte Internazionale di Giustizia, Treccani.it, 2013
 For the definition of international dispute, see: Permanent Court of Justice, The Mavrommatis Palestine Concessions (Palestine v. United Kingdom), Judgment, 30 August 1924, P.C.I.J., Series, A, n. 2.11
 Chapter II: Competence of the Court, art. 36, par. 1: https://www.icj-cij.org/en/statute
 The compromissory clause issues were also relevant in the famous Enrica Lexie case, brought before the International Tribunal for The Law of the Sea. For more on this topic see: https://www.ejiltalk.org/immunities-and-compromissory-clauses-making-sense-of-enrica-lexie-part-i/ ; https://voelkerrechtsblog.org/de/incidental-jurisdiction-in-the-award-in-the-enrica-lexie-incident-italy-v-india-part-i/. Meanwhile, for further information about the issue of compromissory clauses and ICJ jurisdiction, see: E. CANNIZZARO e B. BONAFRE’, ‘Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case’, The European Journal of International Law, Vol. 16 no. 3, EJIL 2005 http://www.ejil.org/pdfs/16/3/305.pdf
 One example is the Convention for the Suppression of Unlawful Seizure of Aircraft https://treaties.un.org/doc/db/Terrorism/Conv2-english.pdf.
 General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948, UN/Doc. A/RES/3/260 of 9 December 1948.
 General Assembly, Vienna Convention on the Law of Treaties, adopted on 2 May 1969, UN/Doc. A/CONF.39/11/Add.2; https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
 Please see E. CANNIZZARO, Diritto Internazionale, V Ed., 2020.
 To view the official document, see: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&clang=_en
 https://www.icj-cij.org/en/case/91/judgments ; https://www.icj-cij.org/en/case/126.;
 https://www.amnesty.org/en/latest/news/2018/09/china-up-to-one-million-detained/ ; https://www.amnesty.org/en/latest/research/2021/03/the-nightmare-of-uyghur-families-separated-by-repression/ ; https://www.hrw.org/news/2021/04/19/china-crimes-against-humanity-xinjiang
 For further information about this issue, see: https://www.opiniojuris.it/la-questione-uigura-nel-2020-gli-interventi-di-alcune-potenze-occidentali-e-il-problema-della-giurisdizione-internazionale/; to know more about the Uyghur issue, see: https://www.opiniojuris.it/adem-yoq-ne-andati-tutti-la-repressione-degli-uiguri-nella-regione-dello-xinjiang/, https://www.opiniojuris.it/xinjiang/
 https://theconversation.com/the-history-of-the-persecution-of-myanmars-rohingya-84040 ; https://ilmanifesto.it/myanmar-la-persecuzione-rohingya-da-un-regime-allaltro/ ; https://www.opiniojuris.it/la-tutela-rohingya/
 The expression was used by the then-High Commissioner of Human Rights, Zeid Ra’ad Al Hussein, in 2017: https://news.un.org/en/story/2017/09/564622-un-human-rights-chief-points-textbook-example-ethnic-cleansing-myanmar#.WcK6utOGOqA
 For further information about this issue, see: https://www.opiniojuris.it/leffettiva-tutela-dei-diritti-umani-attraverso-il-ricorso-alla-giurisdizione-internazionale/; for further information about developments in Myanmar, see: https://www.opiniojuris.it/colpo-di-stato-in-myanmar/
 Plese see supra nota n. 12