The Spanish Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice

Abstract

On the 29th of October, 1990, Spain deposited a declaration of acceptance of the compulsory jurisdiction of the 1CJ with the United Nations in accordance with paragraph 2 of article 36 of its Statute. Throughout its history, Spain has often been willing to accept commitments that have established a jurisdictional settlement of disputes (judicial or arbitrational). However, this has not always been true as regards the a priori and general acceptance of the compulsory jurisdiction of the Court of The Hague. Although it is true that our country accepted this jurisdiction unilaterally in 1928, it is also true that it did not renew this acceptance and let it expire at the end of the 10 year period originally set in the agreement. And although Spain did accede to the 1930 General Geneva Accord, on April 1, 1939, it denounced it in a gesture that was interpreted as an ideological rejection of compulsory jurisdiction. This kind of rejection lost all validity once the transition to democracy began, and furthermore, from that time on, there was a new awareness of the fact that this kind of mechanism for the settlement of disputes was advantageous for countries like ours, medium-size powers in the family of nations but with an ever-growing role in international relations. It also fits well with our country's legal tradition as Spain was the birthplace of the science of International Law. A first step in this area was Spain's accession to the Western European Union (WEU) in 1987. The unilateral declaration followed some time later with the support and encouragement provided by the president of the country. The declaration was processed as a conventional instrument and therefore needed the authorization of Congress. The acceptance of the compulsory jurisdiction of the 1CJ includes four exceptions: 1) disputes for which another means of settlement has been agreed to, 2) disputes in which jurisdiction is determined by a later ad casum declaration made by the other State, 3) disputes in which jurisdiction is based on a later declaration made by another State less than 12 months before, giving Spain a grace period in which to exclude a dispute by withdrawing the declaration or adding a news reservation to it, and 4) a ratione temporis exception, conceived principally for the disputes with Great Britain regarding Gibraltar. These are, in conclusion, reservations that are more technical and procedural in nature than substantive. The Spanish declaration is complemented by provisions on the right to add to, amend or withdraw reservations and those that have to do with the withdrawal or substitution of the declaration itself. These provisions were written with the grace period included in the third reservation in mind. And finally, a very general evaluation of the declaration is done in which it is emphasized that Spain has assumed the risk of being sued unilaterally before the ICJ. This risk is relative if we recognize that the defendant in a case does not necessarily lose the litigation, and it is more than compensated for by the possibility of being the plaintiff. In any case, the Spanish declaration has contributed to improving the degree of observance of International Law.