Compromissory Clauses

Introduction

A compromissory clause is a provision in an international treaty through which States give their prior consent to submit specified disputes to an international court or tribunal, particularly the International Court of Justice (ICJ).

In the context of the ICJ, a compromissory clause is an important basis of contentious jurisdiction under Article 36(1) of the ICJ Statute.

Instead of requiring States to conclude a separate agreement after a dispute arises, a treaty may contain a clause providing in advance that certain disputes concerning the treaty will be submitted to the ICJ.

The basic structure is:

Treaty

↓

Compromissory Clause

↓

Dispute concerning the treaty

↓

ICJ

↓

Contentious Jurisdiction

Meaning of Compromissory Clause

A compromissory clause is a jurisdictional provision contained in a treaty.

It usually provides that disputes between the States parties concerning matters such as:

• interpretation of the treaty;
• application of the treaty;
• implementation of the treaty;
• fulfilment of treaty obligations;

may be submitted to the ICJ.

The exact scope depends upon the language of the particular clause.

Simple Example

Suppose a treaty provides:

“Any dispute concerning the interpretation or application of this Convention shall, at the request of either party, be submitted to the International Court of Justice.”

This provision itself can provide the jurisdictional basis for an ICJ case.

Legal Basis

The principal legal basis is Article 36(1) of the ICJ Statute.

Article 36(1) provides that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force.

Therefore:

Treaty

Jurisdictional clause

↓

Consent to ICJ jurisdiction

The treaty itself constitutes the source of the States’ consent.

Why Is It Called a “Compromissory” Clause?

The term is derived from the idea of a compromise or agreement to submit disputes to adjudication.

The parties agree in advance that certain future disputes will be submitted to a specified dispute-settlement mechanism.

It should not be confused with a settlement agreement resolving an existing dispute.

A compromissory clause primarily concerns how future disputes will be settled.

Prior Consent to Jurisdiction

The most important feature of a compromissory clause is prior consent.

The States agree to jurisdiction when they become parties to the treaty.

Thus:

Treaty concluded

↓

Jurisdiction accepted in advance

↓

Dispute later arises

↓

Qualifying dispute may be submitted to ICJ

This is different from a special agreement, where States specifically agree to submit an already existing dispute to the Court.

Compromissory Clause vs Special Agreement

Compromissory Clause	Special Agreement
Contained in a treaty	Separate agreement between States
Consent given in advance	Consent generally given for a particular dispute
Article 36(1) framework	Article 36(1) framework
May cover future disputes	Usually concerns an identified dispute
Jurisdiction depends on clause’s wording	Jurisdiction depends on terms of agreement

Compromissory Clause vs Optional Clause

These are two important but distinct bases of ICJ jurisdiction.

Compromissory Clause	Optional Clause
Based on a treaty	Based on Article 36(2) declaration
Treaty-specific	Potentially covers specified categories of disputes generally
Consent given through treaty	Consent given through unilateral declaration
Scope determined by treaty wording	Scope determined by declarations and reservations
Article 36(1)	Article 36(2)
Example: Genocide Convention jurisdiction clause	Article 36(2) declaration

Easy Memory Trick

Compromissory Clause → Treaty

Optional Clause → Declaration

Scope of a Compromissory Clause

The jurisdiction conferred by a compromissory clause depends heavily upon its wording.

A clause may cover:

• interpretation;
• application;
• implementation;
• performance;
• disputes concerning the treaty generally.

The Court does not assume that a treaty clause gives unlimited jurisdiction.

Important Principle

The ICJ’s jurisdiction under a compromissory clause is limited by the scope of the consent expressed in the treaty.

Interpretation of the Clause

When determining jurisdiction, the Court carefully examines the relevant treaty provision.

It may consider:

• ordinary meaning of the words;
• context;
• object and purpose of the treaty;
• relationship between the jurisdictional clause and other treaty provisions;
• relevant rules of treaty interpretation.

The Court must determine whether the dispute falls within the clause.

Dispute Concerning “Interpretation or Application”

Many compromissory clauses use language such as:

“disputes concerning the interpretation or application of this Convention”

This wording is significant.

The Court must determine whether the dispute genuinely concerns:

Interpretation

or

Application

of the particular treaty.

A dispute that merely mentions a treaty does not automatically fall within its compromissory clause.

Interpretation of a Treaty

A dispute may concern the meaning of:

• a treaty provision;
• a term;
• a legal obligation;
• the scope of a treaty right.

Such a dispute may fall within a compromissory clause covering treaty interpretation.

Application of a Treaty

A dispute may instead concern whether a State’s conduct complies with an obligation established by the treaty.

For example:

Treaty prohibits certain conduct

↓

State allegedly engages in that conduct

↓

Dispute over compliance

↓

Possible jurisdiction under compromissory clause

Again, the exact wording of the clause controls.

Jurisdiction Ratione Materiae

The most important limitation in compromissory clause cases is often subject-matter jurisdiction.

The Court must ask:

Does the dispute fall within the subject matter covered by the treaty clause?

If the treaty deals with one specific subject but the applicant attempts to bring an unrelated dispute under the clause, jurisdiction may not exist.

Jurisdiction Ratione Personae

The States involved must be parties to the relevant treaty, or otherwise fall within the clause’s scope.

The Court examines:

• whether the applicant is a party;
• whether the respondent is a party;
• whether the treaty was in force between them;
• whether any relevant reservations affect jurisdiction.

Jurisdiction Ratione Temporis

The treaty must generally have been in force between the relevant States at the relevant time, subject to the precise terms of the jurisdictional clause and applicable international law.

Temporal questions may include:

• When did the treaty enter into force?
• Was the State a party at the relevant time?
• Did the clause apply to the particular dispute?
• Does the clause exclude disputes arising before a certain date?

Reservations to Compromissory Clauses

States may sometimes make reservations affecting treaty obligations, including jurisdictional provisions, where permitted by the treaty and applicable international law.

Such reservations can limit the Court’s jurisdiction.

The Court must therefore examine:

Treaty

↓

Compromissory Clause

↓

Reservations

↓

Actual scope of consent

Treaty in Force

A compromissory clause generally operates as a source of jurisdiction only where the relevant treaty is applicable between the parties.

The Court must therefore consider the treaty’s:

• entry into force;
• participation of the parties;
• reservations;
• termination or withdrawal;
• temporal applicability.

Jurisdictional Objections

A respondent State may raise a preliminary objection arguing that the compromissory clause does not confer jurisdiction.

Possible objections include:

• the State is not a party to the treaty;
• the treaty was not in force;
• the dispute does not concern interpretation or application;
• the clause covers only specified matters;
• a reservation excludes the dispute;
• the dispute arose outside the temporal scope;
• the treaty’s preconditions for judicial proceedings were not satisfied.

Procedural Preconditions

Some treaties require States to undertake certain steps before submitting a dispute to the ICJ.

For example, a treaty may require:

Negotiation

↓

Failure to settle

↓

Other peaceful mechanism

↓

ICJ

If the treaty makes such steps a condition of jurisdiction, the Court may need to determine whether they have been satisfied.

Negotiation Requirement

Some compromissory clauses require parties to attempt negotiation before approaching the Court.

The precise legal effect depends upon the treaty language.

The Court may examine:

• whether negotiations were actually attempted;
• whether sufficient time was allowed;
• whether the parties genuinely engaged with the dispute;
• whether further negotiation would be futile;
• whether the treaty makes negotiation a jurisdictional precondition.

Example: Genocide Convention

The Convention on the Prevention and Punishment of the Crime of Genocide contains an important compromissory clause.

Article IX of the Genocide Convention provides that disputes between Contracting Parties relating to the:

• interpretation;
• application; or
• fulfilment

of the Convention, including disputes relating to the responsibility of a State for genocide or related acts, shall be submitted to the ICJ at the request of any of the parties to the dispute.

This is one of the most important examples of a compromissory clause in international law.

Genocide Convention Cases

The Genocide Convention’s Article IX has provided a jurisdictional basis for several important ICJ proceedings.

These include:

• Bosnia and Herzegovina v Serbia and Montenegro
• Croatia v Serbia
• The Gambia v Myanmar

These cases demonstrate how a treaty-based compromissory clause can provide jurisdiction over disputes concerning the interpretation and application of a treaty.

Bosnia and Herzegovina v Serbia and Montenegro

The Application of the Convention on the Prevention and Punishment of the Crime of Genocide case is an important authority on treaty-based jurisdiction.

The Court examined its jurisdiction under Article IX of the Genocide Convention.

The case demonstrates that jurisdiction depends upon the relationship between:

• the treaty;
• the compromissory clause;
• the parties;
• the subject matter of the dispute.

The Gambia v Myanmar

The Application of the Genocide Convention case concerning the Rohingya situation is another major example of jurisdiction based on Article IX of the Genocide Convention.

The case illustrates how a State may invoke a treaty-based compromissory clause even where the applicant State is not itself the State directly injured by the alleged conduct, subject to the legal framework applicable to the treaty obligation.

Ukraine v Russian Federation

The ICJ has also considered treaty-based jurisdiction in cases brought under specific conventions.

The Ukraine v Russian Federation litigation illustrates the importance of carefully identifying:

• the treaty relied upon;
• the jurisdictional clause;
• the scope of the obligations;
• whether the dispute falls within the relevant treaty.

It demonstrates that simply invoking a treaty does not automatically give the Court jurisdiction over every aspect of a dispute.

Compromissory Clause and General International Law

A compromissory clause gives the Court jurisdiction based on the particular treaty.

It does not automatically give the Court unlimited jurisdiction over all rules of international law relevant to the dispute.

The Court must determine the scope of the consent provided by the treaty.

Compromissory Clause and State Responsibility

A treaty’s compromissory clause may permit the ICJ to determine whether a State has violated obligations under that treaty.

However, the jurisdictional clause does not necessarily allow the Court to adjudicate every unrelated rule of international law.

The Court examines whether the alleged conduct falls within the treaty and its jurisdictional provision.

Compromissory Clause and Erga Omnes Obligations

A compromissory clause should not be confused with an erga omnes obligation.

Erga Omnes

Concerns obligations owed to the international community as a whole.

Compromissory Clause

Concerns jurisdictional consent given through a treaty.

A treaty may contain obligations of broader international significance while its jurisdictional clause remains limited by its wording.

Compromissory Clause and Jus Cogens

Similarly:

Jus cogens concerns the hierarchical status of a peremptory norm.

Compromissory clause concerns the jurisdictional authority of the Court.

The existence of a jus cogens issue does not automatically create ICJ jurisdiction.

A valid jurisdictional basis is still required.

Compromissory Clause and Optional Clause

A State may be subject to ICJ jurisdiction through both:

• an Article 36(2) declaration; and
• a treaty compromissory clause.

The applicant State must identify the applicable jurisdictional basis.

If one basis fails, another may still succeed if its legal requirements are independently satisfied.

Important Cases

Bosnia and Herzegovina v Serbia and Montenegro

Important for:

• Article IX Genocide Convention;
• treaty-based jurisdiction;
• State responsibility for genocide;
• interpretation and application of a compromissory clause.

Croatia v Serbia

Important for:

• Genocide Convention;
• Article IX;
• treaty-based jurisdiction;
• genocide and State responsibility.

The Gambia v Myanmar

Important for:

• Article IX Genocide Convention;
• jurisdiction under a compromissory clause;
• obligations under the Genocide Convention.

Application of the International Convention on the Elimination of All Forms of Racial Discrimination

Cases concerning CERD have also demonstrated the importance of treaty-based jurisdiction and procedural preconditions contained in compromissory clauses.

Georgia v Russian Federation

The Application of the International Convention on the Elimination of All Forms of Racial Discrimination case is particularly important.

The Court examined the jurisdictional requirements contained in the CERD dispute-settlement provision, including the requirement concerning negotiation.

The case demonstrates that a treaty may impose procedural conditions before ICJ proceedings can be instituted.

Compromissory Clause Flowchart

Treaty

↓

Compromissory Clause

↓

Treaty enters into force

↓

Dispute arises

↓

Are both States bound by the clause?

↓

Does the dispute concern interpretation/application/other matters covered?

↓

Are procedural preconditions satisfied?

↓

Do reservations or temporal limitations apply?

↓

Yes

↓

ICJ has jurisdiction

↓

Contentious proceedings

↓

Judgment

Jurisdictional Analysis

When an ICJ case is based on a compromissory clause, examine the following:

Identify the treaty

↓

Identify the jurisdictional clause

↓

Check that both States are bound

↓

Check entry into force

↓

Examine reservations

↓

Identify the exact scope of the clause

↓

Determine whether the dispute falls within that scope

↓

Check procedural preconditions

↓

Determine jurisdiction

Compromissory Clause vs Other Jurisdictional Bases

Basis	Source of Consent	Main Feature
Special Agreement	Separate agreement	Particular dispute
Compromissory Clause	Treaty	Future disputes within treaty scope
Optional Clause	Article 36(2) declaration	Advance general acceptance
Forum Prorogatum	Subsequent acceptance	Consent after proceedings begin

Important Articles for Examination

Provision	Importance
ICJ Statute Article 36(1)	Treaties and conventions as basis of jurisdiction
Article 36(2)	Optional Clause – distinguish from compromissory clause
Article 36(6)	Court determines its jurisdiction
Article 40	Institution of proceedings
Article 41	Provisional measures
Article 59	Binding force of judgments
UN Charter Article 92	ICJ as principal judicial organ
Genocide Convention Article IX	Important compromissory clause
CERD Article 22	Important treaty-based jurisdictional clause

Quick Revision

Question	Answer
Meaning	Treaty provision conferring jurisdiction over specified disputes
Main ICJ basis	Article 36(1)
Source of consent	Treaty
Consent	Given in advance
Main purpose	Judicial settlement of specified treaty disputes
Common wording	Interpretation/application of treaty
Scope	Determined by treaty wording
Reservations	May limit jurisdiction
Procedural preconditions	May be required
Key example	Article IX Genocide Convention
Important CERD provision	Article 22
Key cases	Bosnia Genocide, Croatia v Serbia, The Gambia v Myanmar, Georgia v Russia
Difference from Optional Clause	Treaty clause vs Article 36(2) declaration
Difference from special agreement	General treaty-based consent vs particular dispute agreement
Central principle	Court cannot exceed State consent

Key Exam Points

• A compromissory clause is a jurisdictional provision contained in an international treaty.
• It provides prior consent to submit specified disputes to an international court or tribunal.
• In relation to the ICJ, its principal statutory basis is Article 36(1) of the ICJ Statute.
• The scope of jurisdiction depends upon the exact wording of the treaty clause.
• Many clauses cover disputes concerning the interpretation or application of the treaty.
• The Court does not automatically obtain jurisdiction over every dispute between the treaty parties.
• The parties must be bound by the relevant treaty and jurisdictional provision.
• Reservations may limit the jurisdiction accepted by a State.
• Some compromissory clauses impose procedural preconditions, such as negotiation.
• Article IX of the Genocide Convention is a classic example.
• Article 22 of CERD is another important example.
• Compromissory clause jurisdiction differs from Article 36(2) optional clause jurisdiction.
• It also differs from a special agreement, which specifically submits an identified dispute to the Court.
• Bosnia Genocide, Croatia v Serbia, The Gambia v Myanmar, and Georgia v Russia are important cases.
• The central principle is:

A compromissory clause confers only the jurisdiction that the States have accepted through the treaty.

Conclusion

A compromissory clause is one of the most important treaty-based foundations of the contentious jurisdiction of the International Court of Justice. Through such a clause, States provide advance consent to judicial settlement of disputes falling within the specified scope of the treaty.

The Court’s jurisdiction is not unlimited merely because a treaty contains a compromissory clause. It must carefully examine the parties bound by the treaty, the wording of the jurisdictional provision, reservations, temporal limitations, subject-matter requirements and any procedural preconditions.

The Genocide Convention’s Article IX is a leading example of a compromissory clause and has formed the basis of important ICJ proceedings.

The easiest way to remember the concept is:

Treaty

↓

Compromissory Clause

↓

Prior State Consent

↓

Dispute within Treaty Scope

↓

Procedural Conditions / Reservations

↓

ICJ Jurisdiction

↓

Contentious Proceedings

↓

Binding Judgment