Published: 17 March 2026 Author: Patrick Marquardt
Largely unnoticed by the general public and experts alike, on 29 October 2025 Federal Foreign Minister Johann Wadephul deposited an amended optional clause declaration under Article 36, paragraph 2 of the ICJ-Statute submitting Germany to the compulsory jurisdiction of the International Court of Justice’s (“ICJ”). In amending its declaration, the Federal Government responded to the proceedings initiated by Nicaragua regarding Germany’s obligations concerning the situation in Gaza, which have been pending before the Court since March 2024. At the same time, Germany is recalibrating its relationship to judicial dispute settlement in international law in a more restrictive manner. The new Federal Government that initially committed itself to promoting the international rule of law is now beginning to shy away from it for reasons of expediency.
The Previous Declaration: Armed Forces Exception and Anti-Ambush Clause
Germany has been subject to the compulsory jurisdiction of the ICJ since 2008. On 30 April 2008, Federal Foreign Minister Frank-Walter Steinmeier accepted the Court’s jurisdiction ipso facto and without special agreement,
over all disputes arising after the present declaration with regard to situations or facts subsequent to this date other than … (ii) any dispute which:
a) relates to, arises from or is connected with the deployment of armed forces abroad, involvement in such deployments or decisions thereon, or
b) relates to, arises from or is connected with the use for military purposes of the territory of the Federal Republic of Germany, including its airspace, as well as maritime areas subject to German sovereign rights and jurisdiction;
This armed forces exception ensured that all disputes concerning the activities of the German Armed Forces or the role of German territory and German sovereign rights used for military purposes fall outside the jurisdiction of the ICJ. While subclause (a) of paragraph (ii) exempts the conduct of the German Armed Forces abroad from the Court’s jurisdiction, subclause (b) additionally shields Germany from any responsibility when lending itself to third-State military action, such as hosting the United States’s military air base at Ramstein. Although these material restrictions were subject to discussion and criticism, the Federal Government celebrated its first-time acceptance of the Court’s compulsory jurisdiction as a strengthening of international law and international courts.
In addition to these substantive restrictions, the declaration encompassed an anti-ambush clause which excluded:
(iii) any dispute in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.
The clause introduced two procedural obstacles for cases against Germany under its optional clause declaration. First, it limited jurisdiction by requiring, firstly, that the applicant’s optional clause declaration is of a general character. Its declaration may therefore not be limited to the dispute in question. Second, the clause required the declaration to be deposited for more than twelve months at the time of filing the application. These procedural requirements are by no means unique. On the contrary, similar standard formulations can be found in numerous optional clause declarations. Originally triggered by the Right of Passage over Indian Territory case, they can also be regarded as a reaction to the Legality of the Use of Force cases brought by Yugoslavia against NATO Member States. The importance of anti-ambush clauses was once again highlighted in Alleged Violations of State Immunities (Islamic Republic of Iran v. Canada) when Iran deposited an optional clause declaration limited to issues of State immunity and filed its application only a day later.
The Amended Declaration: Nicaragua and the Amicable Settlement Clause
The amended declaration, deposited on 21 October 2025, introduced further procedural requirements for cases brought against Germany by inserting an amicable settlement clause in an additional paragraph which reads:
(iv) any claim or dispute in respect of which the claim or dispute in question has not been notified to the Federal Republic of Germany by the State or States concerned in writing, including of an intention to submit the claim or dispute to the Court failing an amicable settlement, at least six months in advance of the submission of the claim or dispute to the Court.
The new paragraph (iv) of the amended declaration requires disputes to be communicated to Germany in written form six months prior to the application, thus offering the possibility of an amicable settlement. Applications failing to comply with this cooling-off period are therefore not subject to the Court’s jurisdiction. By introducing this amicable settlement clause, Germany unilaterally obliges parties to a dispute to negotiate before accessing the judicial arena. Hence, adding to its pre-existing reservations and exceptions.
The Federal Government’s decision to amend its existing optional clause declaration can be explained by the ongoing litigation in Nicaragua v. Germany. In January 2024, Germany announced its intention to intervene in the case of South Africa v. Israel. Subsequently, on 2 February 2024, Nicaragua is said to have sent a note verbale to the Permanent Mission of Germany to the United Nations demanding that Germany cease arms deliveries and other support to Israel that allegedly violate its obligations under international law. Thereby, Nicaragua communicated the dispute to the Federal Government. On 1 March 2024, Nicaragua filed an application against Germany at the ICJ based on the dispute outlined in the preceding note verbale. It argued that the Court’s jurisdiction derives from the compromissory clause of the Genocide Convention and the optional clause declarations deposited by both States. Nicaragua’s declaration was made in 2001 and is of a general nature. Therefore, it is not covered by the anti-ambush clause found in the previous declaration and thus allows for spontaneous legal action against Germany.
The speedy course of Nicaragua’s actions lends itself to the impression of a political manoeuvre by the Nicaraguan government. While some consider this case a consequence of Russian influence, others simply perceive it as a strategic litigation effort. The newly introduced amicable settlement clause can be read in this vein. Germany is thus preventing future cases of a political nature by obliging the disputing party to negotiate and trying to avert any application through an amicable settlement – political concessions, that is. Whether this approach really highlights Germany’s “commitment to the peaceful settlement of disputes and sends a strong and positive signal of our pro-international law policy to the international community”, as claimed by the Federal Government, seems questionable at best.
Between German Sonderweg and an increasing wealth of jurisdictional requirements
The amicable settlement clause in the amended declaration may be unusual; however, it is not a new invention. Aiming at an amicable agreement and averting applications, the clause was first included in an optional clause declaration in February 2017, when the United Kingdom amended its declaration. Since then, Canada (August 2023), Poland (July 2024), and now Germany (October 2025) have made such a reservation. Apart from these optional clause declarations, jurisdictional requirements necessitating negotiation are of common occurrence in compromissory clauses in international treaties. The requirement of negotiations prior to pursuing judicial dispute settlement in international treaties serves the purpose of resolving a legal dispute by peaceful, however, extra-judicial means. For example, Article 30 of the Convention against Torture and Article 29 of the Convention on the Elimination of all Forms of Discrimination against Women set out that judicial dispute settlement shall be pursued only when negotiation falls short of resolving the dispute. In the case of Article 34 of the Convention relating to the Status of Stateless Persons, the judicial settlement of disputes serves solely as a last resort following the failure of any other peaceful and extra-judicial dispute resolution methods. Nevertheless, numerous conventions allow recourse to a court without prior negotiations or other attempts based on extra-judicial means, such as Article IX of the Genocide Convention.
These various instruments establishing jurisdiction – compromissory clauses as well as optional clause declarations – inspire each other, producing an increasing wealth of jurisdictional challenges concerning court cases. The variance in their design determines the access to courts, its restrictiveness, and thus the possibility of judicial protection.
International Rule of Law subject to Reservation?
The Federal Government consistently emphasises its commitment to international law – whether in amending its optional clause declaration, in the current proceedings before the ICJ, or in its support for the prosecution of the crime of aggression against Ukraine. Law’s ambivalence allows for such political appropriation to proceed without contradiction for the time being. However, once a Court delivers its judgment, determining the (il)legality of acts by stating the law and reflecting at the same time on the soundness of such previous political claim, such political manoeuvring comes to an end. The Federal Government’s increasing reluctance to risk court cases or to prevent them through procedural requirements is gradually undermining the judicial control of its self-attested commitment to international law. By retreating to law’s ambivalence as a political phrase, Germany is not only reshaping its relation to the ICJ but also its general commitment concerning international law more broadly. The review of political – and in this case also legally confounded – assertions is increasingly carried out in-house rather than by independent third parties. Although auto-interpretation and auto-enforcement are constitutive to the system of international law, their usefulness for a multilateral world order and a sustained international rule of law is more than questionable.
Category: International Court of Justice
DOI: 10.17176/20260318-145815-0
