International Court of Justice: Optional Clause Declaration

Alan Duncan Excerpts

Thursday 23rd February 2017 Written Statements

[The Minister for Europe and the Americas (Sir Alan Duncan)]

The Government have informed the UN Secretary-General of an amendment to the United Kingdom’s optional clause declaration accepting the compulsory jurisdiction of the International Court of Justice (Court/ICJ). The declaration accepts the jurisdiction of the Court in contentious cases that come within its scope.

The Government keep their declaration under review. The ICJ case on nuclear disarmament filed by the Marshall Islands against the United Kingdom in 2014 concluded with a judgment of 5 October 2016 that upheld the United Kingdom’s preliminary objections to jurisdiction. We have now decided to build into our declaration two key elements that underpinned the principal arguments that the Government made in those preliminary objections.

The revised declaration requires other states to give six months’ notice of a claim or dispute against the UK that they propose to submit to the ICJ. This would provide an opportunity for diplomatic engagement with the state concerned. The prior notification of a claim is an established part of domestic dispute resolution in the United Kingdom, as well as being a feature of the dispute settlement provisions in many international treaties. The judgment of the ICJ in the nuclear disarmament case accepted that a state must be made aware that litigants have opposing views, otherwise a respondent state does not have the opportunity to react to those opposing views before the institution of proceedings against it. The revised declaration incorporates the UK position that was advanced in the proceedings that prior notification of the kind described is an appropriate step before an application instituting proceedings, seising the Court, can be submitted.

The United Kingdom would be held to the terms of the new declaration in respect of any proceedings that it may wish to institute. The Government are content to be held to this standard.

In addition, the revised declaration also includes a reservation excluding from the Court’s jurisdiction any cases related to nuclear weapons and/or nuclear disarmament unless the other four nuclear non-proliferation treaty (NPT) nuclear-weapons states also accept the Court’s jurisdiction with respect to the case. The Government do not believe the United Kingdom’s actions in respect of such weapons and nuclear disarmament can meaningfully be judged in isolation. This amendment to our declaration provides that the ICJ will only have jurisdiction over nuclear weapons or nuclear disarmament disputes when the proceedings involve all five of the NPT nuclear-weapons states.

We have also made changes to advance the cut-off date for historical cases to 1987, keeping it at 30 years, and to make clear that a repeated claim, as well as a dispute, is also excluded.

The Government are firm in our commitment to a rules-based international order. We continue to accept the compulsory jurisdiction of the ICJ and believe that the Court has a valuable role to play in resolving international disputes peacefully.

[HCWS489]