ICJ Statute Article 36

Article 36 of the Statute of the International Court of Justice sets out the basis on which the Court acquires jurisdiction over contentious cases between states. It contains five paragraphs, but two are most often cited in practice.

Paragraph 1 establishes that the Court's jurisdiction covers "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." This is the basis for jurisdiction by special agreement (compromis) and for the hundreds of compromissory clauses embedded in bilateral and multilateral treaties (for example, the Genocide Convention's Article IX or the Vienna Convention on Consular Relations' Optional Protocol).

Paragraph 2 is the famous optional clause. States may at any time declare that they recognise the Court's jurisdiction as compulsory ipso facto in relation to any other state accepting the same obligation, in disputes concerning:

• the interpretation of a treaty;
• any question of international law;
• the existence of any fact which, if established, would constitute a breach of an international obligation; and
• the nature or extent of reparation owed.

Paragraph 3 allows such declarations to be made unconditionally, on condition of reciprocity, or for a fixed time. In practice, states attach reservations (the U.S. Connally Reservation of 1946 is the classic example; the U.S. later withdrew its Article 36(2) declaration in 1985 after Nicaragua v. United States).

Paragraph 5 preserves declarations made under Article 36 of the old Permanent Court of International Justice Statute, a bridge that mattered in cases like Nicaragua.

Paragraph 6 gives the Court itself the power to settle disputes about whether it has jurisdiction (compétence de la compétence).

Roughly one-third of UN member states currently have a 36(2) declaration on file with the UN Secretary-General. Major absentees include the United States, China, Russia, and France.