The Commonwealth and the international court of justice

Abstract

When the International Court of Justice (ICJ) in 1999 determined the Botswana‐ Namibia boundary and found that the disputed Kasikili/Sedudu Island was part of Botswana, it was the first time that the ICJ had adjudicated an intra-Commonwealth territorial dispute. The case was also the first dispute of any kind brought to the ICJ by two Commonwealth members ‘arm in arm’, for peaceful settlement. The article summarizes the very few intra-Commonwealth cases which have gone to the ICJ and enquires why they are so few. It traces the history of the ‘Commonwealth reservation’ by which some states have excluded intra-Commonwealth disputes from their acceptance of ICJ jurisdiction in advance (the Optional Clause), and the significance of inter se (the doctrine that intra-Commonwealth relations were not of a fully international character) with which the ‘Commonwealth reservation’ was associated in its 1929 origin but which it has long outlived, although arguably in decline. Reluctance to use the ICJ may have other explanations. Failure to establish an alternative Commonwealth tribunal suggests a broader reluctance to take disputes to adjudication. Less binding outcomes and less formal processes are preferred. In particular, the good offices rôle of successive Commonwealth Secretaries-General has played a constructive part in resolving conflicts. Examination of the record shows, however, that the successful use of good offices has been in conflicts internal to a Commonwealth member. For disputes between two members, the Commonwealth’s capacity for conflict resolution is less clear, and the use of the ICJ may become more attractive, Botswana and Namibia having led the way.