McGarry: Nicaragua's Impacts on Optional Clause Practice

Brian McGarry (Graduate Institute of International and Development Studies) has posted Nicaragua's Impacts on Optional Clause Practice (in Nicaragua Before the International Court of Justice: Impacts on International Law, Edgardo Sobenes & Benjamin Samson eds., forthcoming). Here's the abstract:

As we mark 30 years since Nicaragua prevailed in a watershed case before the ICJ, it is worth noting that Nicaragua’s practice under the Optional Clause of the ICJ Statute has coincided with rising numbers of declarations in force and applications instituting proceedings on that basis. The combined creativity of Nicaragua and the Court has propelled those trends by refining the international legal community’s understanding of this conceptually challenging provision of the Statute. In particular, Nicaragua v. United States has influenced the complexity of reservations and conditions in States’ declarations, as well as parties’ argumentative tactics in subsequent disputes. The present paper reviews the Court’s treatment in that case of the history and features of Article 36(2) of its Statute, assesses the theoretical, jurisprudential, and diplomatic consequences of those decisions, and investigates questions which Nicaragua has posed but not resolved during three decades of Optional Clause practice. The author concludes that the Nicaraguan cases have invigorated this jurisdictional mechanism—and thus the maintenance of international peace and security—beyond what might reasonably be expected from a more rigid system of compulsory dispute settlement.