9
jurisdiction of the Inter-American Court of Human Rights. 14 There is a pressing need for
the old ideal of the permanent international compulsory jurisdiction 15 to become reality
also on the American continent, in the present domain of protection, with the necessary
adjustments in order to face its reality of human rights to fulfill the growing needs of
effective protection of the human being" (para. 39).
V.
The recurring search for automatic compulsory international
jurisdiction as a necessity of our times
34.
The recurring search for compulsory international jurisdiction appears to
relate to the myth of Sisyphus. Already in 1959, the Institute of International Law
(Neufchatel session), of which I am honored to be a member, adopted unanimously
a resolution supporting the compulsory jurisdiction of international tribunals, as “an
essential complement to the relinquishment of the use of force in international
relations." 16 Since then, the idea has had a long and involved history that still
continues, above all, in the case of contentious matters solely between States.
However, progress has been made in contentious matters opposing States and
individuals (as active or passive subjects of international law).
35.
I have already referred to the fact that the European Court of Human Rights
(with Protocol No. 11) is today endowed with automatic compulsory jurisdiction (cf.
supra). Other contemporary international courts also have it. This is the case of the
International Criminal Court. Even though other mechanisms had been considered
during the travaux préparatoires of the 1998 Rome Statute (including such truculent
procedures as "opting in" and "opting out"), the compulsory jurisdiction prevailed
finally, obviating the need for an additional manifestation of consent by the States
Parties to the Rome Statute. 17 This was a significant decision that strengthened the
international jurisdiction.
36.
The Court of Justice of the European Communities provides an example of the
supranational compulsory jurisdiction, even though it is limited to community law or
to the law on integration (of the European Union). In its own way, the system of the
1982 United Nations Convention on the Law of the Sea goes beyond the traditional
regime of the optional clause of the ICJ Statute 18 (which, unfortunately, served as a
model for the Inter-American Court): it opens to the States Parties to that
Convention the option of going before the International Tribunal for the Law of the
Sea, or the ICJ itself, or to arbitration (Article 287). Despite the exclusive nature of
14
.
With the necessary amendment – by a protocol – in this regard, of Article 62 of the American
Convention, ending the restrictions that it establishes and expressly rejecting the possibility of any other
restrictions and also ending the reciprocity and optional nature of the recognition of the Court’s contentious
jurisdiction, which would make it compulsory for all States Parties.
15
.
In a monograph published in 1924, four years after the adoption of the Statute of the former PICJ,
Nicolas Politis, when recalling the historic evolution from private justice to public justice, also advocated the
evolution, at the international level, from optional justice to compulsory justice; cf. N. Politis, La justice
internationale, Paris, Libr. Hachette, 1924, pp. 7-255, esp. pp. 193-194 and 249-250.
16
.
Annuaire de l'Institut de Droit International (1959), cit. in C.W. Jenks, The Prospects of International
Adjudication, London, Stevens/Oceana, 1964, pp. 113-114.
17
.
H. Corell, Evaluating the ICC Regime: The Likely Impact on States and International Law, The Hague,
T.M.C. Asser Institute, 2000, p. 8 (internal circulation).
18
.
In reality, the optional clause (of the ICJ Statute) is not the only source of the compulsory jurisdiction
of the ICJ; another source is precisely the jurisdictional clauses inserted in treaties attributing jurisdiction to
international tribunals to resolve conflicts relating to their interpretation and application.