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Published online by Cambridge University Press: 07 July 2009
In any field of legal study, there are certain terms which, while not corresponding to distinct fundamental concepts, come to acquire currency as regular symbols or building-blocks in legal argument, either through their inclusion in some key text, or through being recognised as convenient encapsulation of a bundle of concepts or conditions. The generally well-recognised danger in the use of such symbolic notation is that the term in question may come to be used with insufficient regard to the nucleus of ideas which existed before it was affixed as a label, and the manipulation of which it was merely intended to facilitate. Furthermore, what may be called the “common” meaning of the term in question – the meaning it has in a non-legal or non-specialist dictionary – may exercise a surreptitious influence, causing the legal meaning of the term to drift in a manner unjustified by legal considerations. For these reasons, such terms need to be scrutinised from time to time in the light of their origin and background, in order that such drifts may be detected, and the danger avoided of legal exactitude being prejudiced by linguistic convenience.
1. Cf., Rosenne, S., The Law and Practice of the International Court, Vol. I (1965) p. 384Google Scholar; Briggs, H.W. in 93 Hague Recueil (1958) p. 241Google Scholar; Shihata, I.F.I., The power of the International Court to determine its own jurisdiction, pp. 147–150Google Scholar; Rotter, M., “Art. 36, abs 2, des Statuts des internationalen Gerichtshofes”, Ius Humanitatis (Festschrift Verdross) (1980) pp. 381, 636.Google Scholar
2. Cf., Looper, R.B., ” ‘Federal’ Clauses in Multilateral Instruments”, 32 BYIL, (1955/1956), p. 162 at pp. 200–201.Google Scholar
3. Pleadings, Vol. IV p. 35.
4. The theoretical possibility of non-reciprocal jurisdictional provisions was admitted by Italian writers: see, Perassi, T. “I caratteri formali della clausa facoltativa sulla giurisdizione obbligatoria della C.P.G.I.” XI Rivista di Diritto internazionale (1932) pp. 127, 131Google Scholar; Enriques, G.: “L'accettazione, senza reciprocità, della giurisdizione obbligatoria della C.P.G.I.”, VI Annali dell'università di Camerino (1932) p. 201, passim.Google Scholar
5. In fact, the records of the negotiation leading up to the Exchange of Notes show that the idea of mention of the Court arose first from the point of view of its role as determining the current state of international law, the Icelandic negotiators pointed out that someone would have to seise the Court of the question, and the British replied that “Iceland could bring a case before the Court if it wanted”, and proposed the formula for referral to the Court “at the request of either party” (Pleadings, VoL I, pp. 215, 217). It is also worth noting that in practical terms such a bilateral provision may be wise, since unforeseen circumstances may shift the interest in having a judicial settlement from the one party to the other.
6. Pleadings, p. 11–2.
7. And by Articles 38 and 39 of the 1928 General Act for the Pacific Settlement of International Disputes, and Article 35 of the 1957 European Convention for the Pacific Settlement of Disputes.
8. “Wenn zum Beispiel in allgemeinen Vertragsbestimmungen die Möglichkeit der einseitigen Anrufungdes Gerichtshofs bei zukünftigen Streitfällen Vorgesehen ist, dann werden die Vertragspartner sicher in der Regel übereinstimende Rechte und Pflichten haben, aber das ist keineswegs unabdingbar …”: Bernhardt, R., “Das Gegenseitigkeitsprinzip in der obligatorischen internationalen Gerichtsbarkeit”, Mélanges Guggenheim, (1968) p. 615, 618Google Scholar, who also points out that reciprocity is inapplicable in advisory proceedings.
9. PCU A, No. 1, p. 25.
10. ICJ Rep. (1974) pp. 530 et seq. and 535 et seq.
11. ICJ Rep. (1981) p. 20.
12. ICJ Rep. (1974) p. 532.
13. Ibid. p. 533.
14. ICJ Rep. (1981) pp. 25 et seq., paras 7 et seq.
15. Ibid. p. 40.
16. The weakness of the Fijian intervention was rather that its interest was in the cessation of the activity which Australia's application sought to restrain, which was not a legal interest which could be affected by the decision in the case.
17. ICJ Pleadings, Right of Passage, Vol. IV, p. 37.
18. The history is lucidly recounted by Waldock, C.H.M. in “Decline of the Optional Clause”, 32 BYIL (1955-1956) p. 244 at pp. 254–261.Google Scholar
19. See, Procès-verbaux of the Committee, pp. 727–9.
20. See, Documents, Vol. II p. 168.
21. Loc. cit.
22. Ibid. p. 170.
23. Ibid. p. 107.
24. Shihata (op.cit.), in an otherwise excellent account of the question, rather blurs this point, which is, admittedly, of marginal interest.
25. Proposal by Mr. Arias, loc. cit., p. 107.
26. There is something of a mystery in the published Committee documents, since the version which supposedly was circulated before the decision to add the wording taken from th the Fernandes draft (Annex 14, Documents, p. 172) does in fact include the final sentence concerning reciprocity (but not the reference to “a certain time”).
27. Documents, Vol. II p. 222.
28. Hudson, M.O., The Permanent Court of International Justice, p. 465Google Scholar, n. 73, draws attention to the precedent for such a system afforded by a Swiss proposal at the 1907 Hague Conference.
29. The only known declaration referring to reciprocity of this kind in fact operates on the other system noted above – acceptance vis-à-vis all other accepting States, subject to a condition precedent: see the declaration of Brazil of 1921, Hudson p. 684.
30. League of Nations, Official Journal, Special Supplement No. 65 (1928) p. 103. For a more recent attempt to check the proliferation of reservations to a general jurisdictional instrument see Art. 35 of the European Convention for the Peaceful Settlement of International Disputes (1957), para. 1 of which provides that: “The High Contracting Parties may only make reservations which exclude from the application of this Convention disputes concerning particular cases or clearly specified subject matters, such as territorial status, or disputes falling within clearly defined categories. If one of the High Contracting Parties has made a reservation, the other Parties may enforce the same reservation in regard to that Party.” The effect of this is somewhat weakened by para. 4 of the Article, whereby reservations attached to a declaration under Art. 36 of the ICJ Statute may be incorporated, by simple declaratation, into the acceptance of jurisdiction under the Convention.
31. For R. Bernhardt (op.cit.), this signifies that such reservations have customary-law validity; we have space here only to express doubt whether an appeal to customary law in this context is necessary or appropriate.
32. League of Nations, Fifth Assembly, Annex 16 to Minutes of the First Committee, Official Journal, Special Supplement No. 24 (1924) pp. 122–123Google Scholar (also in Special Supplement No. 26, p. 199). The authors of the Report were N. Politis and E. Benes.
33. Kelsen, H., The law of the United Nations (1950) pp. 526–7.Google Scholar
34. Enriques, op.cit.; Briggs, op.cit. (n. 1 above); Bernhardt, op.cit.; Shihata, op.cit.
35. Contra, Shihata (op.cit.). It would at least have to be limited to States Parties to the Statute of the Court (in this sense Enriques, op.cit., n. 4), but this follows in any event from the provisions of the Statute (Art. 25).
36. See the various acceptances dated 19 September 1929 (Great Britain, India, South Africa, etc.).
37. Except for the abortive case between Belgium and China in 1926 concerning the Denunciation of the Treaty of 1865, no case in which jurisdiction was afforded by optional clause declarations was brought until Legal Status of Eastern Greenland in 1931; in that case the acceptances of jurisdiction of both parties were free of limitations (texts in Hudson, pp. 686 and 697). Cases involving reliance on the optional clause, other than those here discussed, were Legal Status of South East Greenland, Losinger & Co., Diversion of Waters from the Meuse.
38. See, PCIJ ser. A/B, No. 74, p. 22.
39. PCIJ ser. C, No. 84, p. 204–5.
40. Ibid. p. 426.
41. PCIJ ser. A/B, No. 74, p. 22.
42. Ibid., p. 34.
43. PCIJ ser. A/B, No. 77, p. 81.
44. Both parties argued on the basis that it was the date of the Belgian declaration which was relevant: on this see below, pp. 30–31.
45. PCIJ ser. A/B, No. 77, p. 81.
46. Ibid., p. 82.
47. Such a limitation may however also be treated as a bar on retroactive effect, with different consequences when applied “reciprocally”: see the Interhandel case, discussed below.
48. The Permanent Court of International Justice, 1920–1942, pp. 465–6.
49. ICJ Rep. (1957) p. 24 (emphasis added).
50. ICJ Rep. (1957) p. 24 (emphasis added).
51. This interpretation had been predicted by Waldock (op.cit., p. 277) in 1955–1956.
52. ICJ Rep. (1957) p. 76.
53. This may seem an unlikely hypothesis in view of the nature of the dispute; but cf. the proceedings brought by France in the US Nationals in Morocco case to determine the validity of certain claims made against the Moroccan Government by the USA – a kind of “pre-emptive strike”.
54. The fact that this decision constituted a new departure, or at least a further step, in the development of reciprocity was noted by Takeshi, Minagawa, “Operation of Reciprocity under the Optional Clause”, 4 Japanese Annual of International Law (1960) pp. 32, 37 (particularly n. 21).Google Scholar
55. ICJ Rep. (1957) p. 141.
56. Pleadings Vol. IV p. 44.
57. ICJ Rep. (1957) p. 147.
58. Ibid. p. 143.
59. Ibid.
60. Ibid.
61. Ibid. p. 145.
62. Ibid. p. 143.
63. Ibid. p. 144.
64. ICJ Rep. (1952) p. 103.
65. Pleadings, p. 492:
66. Ibid. p. 541.
67. Sauveplanne, J.G., “Les limitations ratione temporis dans l'application de la clause facultative” III NILR (1956) pp. 342, 350.CrossRefGoogle Scholar
68. Cf., the dictum in the Anglo-Iranian Oil Co. case, quoted above.
69. ICJ Rep. (1952) p. 103.
70. Pleadings, p. 313.
71. 93 Hague Recueil (1958) pp. 248–249; 53 AJIL (1948) p. 553.
72. A similar (though not identical) criticism was expressed by Perrin, , “”affaire de l'lnterhandel”, XVI Annuaire suisse de droit international, (1959) p. 73, at pp. 153–155Google Scholar.
73. M. Sauser-Hall referred to it as a tour de passe-passe: Pleadings, p. 539.
74. ICJ Rep. (1959) p. 23.
75. Loc. cit.
76. Professor Briggs reads the judgment in this sense (53 AJIL (19xx) p. 552, n. 27, and p. 554), but it may be said, with respect, that he reads more into the judgment on this US objection than is really to be found there. Another commentator (Soubeyrol, J., “Validité dans le temps de déclarations d'acceptation de la juridiction obligatoire”, Annuaire Français (1959) pp. 232, 246)Google Scholar understands the Court to have ruled that “si le demandeur avait été les Etats-Unis, la Suisse eût pu prétendre que la Cour n'était pas compétente avant 1948 …”, but this view seems to have been based on a misreading of the Judgment.
77. On the proposal of Prof. E.H. Rolin: see League of Nations Official Journal, Special Supplement No. 65, pp. 89–90.
78. This emerges from the separate opinion of Judge Sir Percy Spender, who considered that: “If instead of the words ‘hereafter arising’ there had been inserted the words ‘arising after the 26th August 1946’, the Objection of the United States would, I think, hardly have been arguable. In my opinion the conclusion tobereached would be the same in both.” [ICJ Rep. (1959) p. 74]
79. PCIJ ser. A, No. 77, p. 81.
80. Ibid., p. 82.
81. PCIJ ser. C, No. 88.
81a. Cf., the separate opinion of Judge D. Anzilotti, for whom there was an Agreement between the parties coming into force on 10 March 1926: PCIJ, Ser. A, No. 77, p. 87.
82. Pleadings, pp. 513 (S. Rosenne) and 555 (Pierre Cot).
82a. ICJ Yearbook 1956/1957, pp. 214–215.
83. ICJ Yearbook 1950/1951, p. 193.
83a. Pleadings, Vol. II, p. 354.
84. ICJ Rep. (1978) pp. 4–5.
85. Ibid. p. 21.
86. See, e.g., Merrills, J.G., “The International Court of Justice and the General Act of 1928”, Cambridge Law Journal (1980) pp. 136, 166.Google Scholar
87. League of Nations, Official Journal, IXth Year, No. 7 (1928) p. 1146.Google Scholar
88. E.G., League of Nations, Official Journal, Special Supplement No. 65, p. 90. “Gallus”, writing in the Revue de droit international in 1931 (L'acte général a-t-il une réelle utilité?” p. 377), comments that “dans une large mesure il [the General Act]reproduit en le confirmant le système de l'article 36 du Statut de la Cour”, (p. 389).
89. Cf., US Counter-Memorial in the case of US Nationals in Morocco, Pleadings, Vol. I, p. 262.
90. See above, p. 107.
91. ICJ Rep. (1952) p. 105.
92. Travers v. Travers, in Codd's Last Case (1952), p. 80: see also Megarry, R.E., Miscellanyat-Law, pp. 361–362.Google Scholar
93. Cf. also, Visschei, Ch. de in Problèmes d'interprétation judiciaire en droit international public, at pp. 201–202Google Scholar; PCIJ ser. A, No. 9, p. 32.
94. Dreyfus, Cf. S. in Annuaire français 1959, at p. 270.Google Scholar
95. See in particular the declaration of India dated 14 November 1959 [ICJ Yearbook (1973/1974) p. 60].
96. Continental Shelf (Libya/Malta), Delimitation of the Maritime Boundary in the Gulf of Maine Area, Frontier Dispute (Upper Volta/Mali).
97. Continental Shelf (Tunisia/Libya).
98. Successfully in the sense that a judgment on the merits was obtained, even if it was not to the liking of the Applicant.
99. SirZafiulla Khan, Muhammad, “The Appointment of Arbitrators by the President of the ICJ”, XIV Comunicazioni e studi (1975) p. 1024.Google Scholar
100. Separate opinion of Judge Petrén, B.A.S., Western Sahara, ICJ Rep. (1975) p. 108.Google Scholar
101. Order of 10 May 1984, ICJ Rep. (1984) p. 169.
102. The request for removal from the list was dismissed on procedural grounds (ICJ Rep. (1984), p. 178, para. 21), but the jurisdictional questions remain open (ibid., p. 186, para. 40).
103. Loc. cit.p. 178, para. 21.
104. ICJ Rep. (1984), p. 22, para. 35.
105. ICJ Rep. (1984), pp. 63–64, para. 27.