Djibouti V France: Self-Judging Clauses before the International Court of Justice
Briese, Robyn, Schill, Stephan W., Melbourne Journal of International Law
CONTENTS I Introduction II Facts and Issues in the Case A The Facts B The Issues III The Mutual Assistance Convention and Art 2(c) A France's Reliance on Art 2(c)--Majority Judgment B France's Failure to Give Reasons under Art 17--Majority Judgment. C France's Reliance on Art 2(c)--Declaration of Judge Keith IV Avoiding Abuse of Self-Judging Clauses A The Standard of Review Applied in the Majority Judgment B The Standard of Review Applied by Judge Keith V Conclusion
Self-judging clauses are clauses that allow states to reserve to themselves a right of non-compliance with international legal obligations in certain circumstances. These circumstances arise predominantly where the state in question considers that compliance will harm its sovereignty, security, public policy, or more generally, its essential interests. (1) Self-judging clauses can usually be identified by the inclusion of language such as 'if the state considers', (2) which confers discretion on a state to determine that, in particular circumstances, the state is not obliged to comply with certain obligations it has accepted under a particular international agreement. (3)
A good example of a self-judging clause can be found in art 2(c) of the Convention concerning Judicial Assistance in Criminal Matters, (4) which provides that assistance in proceedings relating to criminal offences may be refused [...] if the requested State considers that the execution of the request is likely to prejudice its sovereignty, its security, its ordre public or other of its essential interests.
As well as appearing in international treaties, self-judging clauses can be found in other types of international instruments including in optional declarations under art 36(2) of the Statute of the International Court of Justice ('ICJ Statute')--unilateral declarations whereby states accept the jurisdiction of the International Court of Justice vis-a-vis any other state accepting the same obligation (5)--and in reservations to international treaties. (6) They appear, however, most frequently in various types of international treaties, (7) including treaties on mutual assistance and extradition, trade and investment, or private international law and arbitration. It is this latter type of self-judging clause that is the focus of this case note. (8)
Despite their pervasiveness, until the recent decision of the ICJ in Djibouti v France, (9) self-judging clauses in international treaties had not received more than passing reference in international dispute resolution. (10) The question of the appropriate role of international dispute settlement bodies when asked to resolve disputes regarding allegations of abuse or breach of a self-judging clause is, however, of growing importance. As the range of human activity regulated by international agreements proliferates, self-judging clauses constitute one mechanism that allows states to actively engage in the expanding international legal order, while retaining a right to relieve themselves of international obligations in circumstances where the state determines that its essential interests are at risk. The presence of such exit-valves arguably enhances international cooperation, in that states are prepared to cooperate more deeply than would have been possible in the absence of such an ability to side-step international obligations under specific circumstances. At the same time, the large potential for abuse of such clauses could also have a chilling effect on international cooperation because each state party retains, to a certain extent, the right to determine the scope of the international obligations it has assumed. In adjudicating on disputes concerning the application of self-judging clauses, international dispute settlement bodies must therefore balance the need to apply a sufficiently robust standard of review to prevent abuse of such clauses against the need to respect the discretion that such clauses confer upon the state relying on them. …