Discretion to Decline to Exercise Jurisdiction

Abstract

The Nicaragua case raises anew long-unresolved questions about the circumstances in which the Court may or should decline to exercise its jurisdiction. It is far from self-evident, of course, that in the absence of a specific grant of discretionary authority the Court is entitled to abstain from judging the merits of a contentious case, once it is satisfied that its jurisdiction has been established. Its judgments, however, and some supportive scholarly writings, suggest variously that discretionary authority is inherent in the Court as a judicial institution; that it is to be inferred from language contained in Articles 36 and 38 of the Statute; that it is implicit in the nature of international law or the remedies available to the Court to fashion relief for violations of it; or that unless otherwise indicated it should be deemed implicit in, even coextensive with, express grants of jurisdiction. In this brief survey, I will suggest that as a general rule the discretionary authority of the Court derives principally from the political community’s tacit acceptance of the Court’s assertions of discretion; that this validation is ambiguous and tenuous, at best; and that it is in the institutional best interests of the Court to justify its exercise of discretion, in each instance, in a more candidly principled way than it has done in the past.