Once burned, twice shy. The use of compromissory clauses before the International Court of Justice and their declining popularity in new treaties

This article attempts to probe and assess the contemporary relevance of compromissory clauses conferring compulsory jurisdiction to the International Court of Justice. An analysis of State practice, including both law-making and litigation before the Court, reveals two patterns, that perhaps reinforce each other. First, States have all but ceased to include compromissory clauses in new treaties. Second, applicants increasingly seise the Court through this title of jurisdiction, placing before the Court an out-of-context fragment of a larger dispute. In the past two decades, while applicants have approached compromissory clauses with cunning, drafters have used caution. This ambivalent tendency might explain the inverse correlation between the use and conclusion of compromissory clauses: the clauses’ fall out of fashion in treaty negotiations is aggravated by, and might even promote, their popularity in contentious proceedings at the Peace Palace.