Peacetul Settlement of Intemational Disputes 587 S. Declarations made under Article 36 of the Statute of the Permanent Court of Inter- national Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. 6. In the event of a dispute as to whether the Court has jurisdiction the matter shall be settled by the decision of the Court. Justice IC] Ybk, (1988-89), 71, 73-74, 94-95; 24 ILM 1742 (1985) Asat 1 July 2002 there were 64 Declarations in force under Article 36(2). The follow- ing are examples: Haiti Mranslation from the French} a) On behalf of the Republic of Haiti, | recognize the jurisdiction of the Permanent Court of International Justice as compulsory (Signed) F Addor, Consul India 18174 have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over ail disputes other than (1) disputes in regard to which the partes to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement (2) disputes with the government of any State which ts or has been a Member of the Common- wealth of Nations, (3) disputes in regard to matters which are essentially within the domestic yurisdiction of the Republic of india, (4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, indi vidual or collective actions taken in self-defence, resistance to aggression, fulflment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved; (5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute, or where the acceptance of the Court’s compulsory jurtsdiction on behalf of a party to the dispute was deposited or ratified fess than 12 months prior to the filling of the application bringng the dispute before the Court; (6) disputes where the jurisdiction of the Court 1s or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of indha specially agree to jurisdiction in each case, (7) disputes concerning the interpretation or application of a multilateral treaty unless all the Parties to the treaty are also parties to the case before the Court or Government of india specially agree to jurisdiction,ae @ disputes with the government of any State with whch. on the date of an application to bring a dispute before the Court, the Government of india has no diplomatic relations or which has not been recognized by the Government of India, ' {@) disputes with nonsovereign States or terntories, (10) disputes with india concerning or relating to {a} the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundanes, fb} the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels, (q) the condition and status of tts island, bays and gulfs and that of the bays and gulls that for historical reasons belong to it, (d) the airspace superjacent to its land and maritime territory; and {e) the determination and delimitation of its maritime boundaries. (11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they ‘8¢e submitted or brought to the knowledge of the Court hereafter. 2 This declaration revokes and replaces the previous declaration made by the Government of India on 14 September 1959 New Dethi, 15 September 1974 (Signed) Swaran Singh, Minister for External Affaws United Kingdom Of Great Britain And Northern Ireland 1169. | have the honour, by direction of Her Majesty's Principal Secretary of State for Foreign and Com- monweaith Affairs, to declare on behalf of the Government of the United Kingdom of Great Britain and Northern treland that they accept as compulsory 1pso facto and without special convention, on condition of reciproatty, the junsdiction of the international Court of Justice, in conformity with Paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate the acceptance, over all disputes arising after 24 October 1945, with regard to situations (+ facts subsequent to the same date, other than: {any dispute which the United Kingdom ‘a) has agreed with the other Party or Parties thereto to settle by some other method of peaceful settlement; or O) has already submitted to arbitration by agreement with any State which had not at the time of submission accepted the compulsory jurisdiction of the international Court of Justice; (2) dsputes with the government of any other country which is a Member of the Commonwealth ‘with regard to situations or facts exssting before 1 January 1969, Whi) dsputes in respect of which any other Party to the dispute has accepted the compulsory ueisdiction of the international Court of Jusuce 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 ‘ther Party to the dispute was deposited or ratshed less than twelve months prior to the fling ofthe application brnging the dispute before the Court 22. The Government of the United Kingdom also reserve the night at any time, by means ol a ‘potiicaton addressed to the Secretary General of the Unded Nations, and wath effect as from thePeaceful Setdement of International Disputes $89 moment of such notification, either to add to, amend or withdraw any of the foregoing reservations, ‘or any that may hereatter be added New York, 1 January 1969. (Signed) LC Glass. United States of America 26.vil 46, 1, Harry S. Truman, President of the United States of Amenca, declare on behalf of the Unted of ‘Amenca, under Article 36, paragraph 2, of the Statute of the International Court of Justice, and in accordance with the Resolution of 2 August 1946 of the Senate of the United States of America itwo- thirds of the Senators present concurring therein), that the United States of America recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes hereafter arising concerning (a) the interpretation of a treaty. (b} any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation, Provided, that this declaration shall not apply to (a) disputes the solution of which the parties shail entrust to other tribunals by virtue of agree- ments already in existence or which may be concluded in the future; (6) disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of Amenca, or (c} disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to junsdication; and Provided further, that this declaration shall remain in force for a penod of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration. Done at Washington this fourteenth day of August 1946 (Signed) Harry S Truman. oivga. I have the honour on behalf of the Government of the United States of America to refer to the declaration of my Government of 26 August 1946 concerning the acceptance by the United States of ‘Amenca of the compulsory jursidiction of the International Court of Justice, and to state that the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree Notwithstanding the terms of the aforesaid declaration, this proviso shall take effect immediately {and shall remain in force for two years, so as to foster the continuing regional dispute settlement process which seeks a negotiated solution to the interrelated political, economic and security prob lems of Central America {Signed} George P. Shultz, Secretary of State of the United States of Amenca October 7, 1985 Dear Mr Secretary General. I have the honor on behalf of the Government of the United States of America to reler to the declaration of my Government of 26 August 1946, as modified by my note of @ April 1984 concerning the acceptance by the United States of America of the compulsory jurisdiction of theInternational Court of Justice, and to state that the aforesaid declaration is hereby terminated, with effect six months from the date hereof Sincerely yours, George P. Shultz Norwegian Loans Case (France v Norway) IC) Rep 1957 9, International Court of Justice Both France and Norway had made declaration under Article 36(2) accepting the compulsory jurisdiction of the ICJ. Norway objected to France commencing the action, which concerned the rights of French holders of Norwegian bonds, as it claimed that the issue was essentially a matter within Norway's ‘domestic juris- diction’. Although Norway did not have such a reservation (often called an ‘automatic’ reservation) to its declaration, it submitted that it could rely on the fact that France did have such a reservation. The Court upheld Norway's submis- sion. However, Judge Lauterpacht made a few comments about such ‘automatic’ Teservations. THE COURT: [I]/n the present case the jurisdiction of the Court depends upon the Declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute on condition of reciprocity; and that, since two unilateral declarations are involved, such jurisdiction 1s conferred upon the Court only to the extent to which the Declarations coincide in conferring it. A comparison between the two Declarations shows that the French Declaration accepts the Court’s yunsdiction within narrower limits than the Norwegian Declaration; consequently the common will of the parties, which is the basis of the Court's yunsdiction, exists within these narrower limits indicated by the French reservation inaccordance with the condition of reciprocity to which acceptance of the compulsory jurisdiction 1s made subject in both Declarations and which is provided for in Article 36, paragraph 3, of the Statute, Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes understood by Norway to be essentially within its national jurisdiction JUDGE LAUTERPACHT (Separate Opinion). | consider that as the French Declaration of Acceptance excludes from the jurisdiction of the Court “matters which are essentially within the national jurisdic- tion as understood by the Government of the French Republic” ~ the emphasis being here on the words “as understood by the Government of the French Republic” — it 1s for the reason of that latter qualification an instrument incapable of producing legal effects before this Court and of establishing ‘ts junsdiction. This ‘sso for the double reason that: (a) it is contrary to the Statute of the Court: (b) the existence of the obligation being dependent upon the determination by the Government accept ing the Optional Clause, the Acceptance does not constitute a legal obligation That Declaration of Acceptance cannot, accordingly, provide a basis for the yunsdiction of the Court. Norway has not accepted the jurisdiction of the Court on any other basis The Court therefore has no jurisdiction Hf that type of reservation is valid, then the Court 1s not in the position to exercise the power conferred upon it ~ in fact, the duty imposed upon it ~ under paragraph 6 of Article 36 of its Statute... The French reservation 1s thus not only contrary to one of the most fundamental prin ciples of international - and national ~ unsprudence according to which it 1s within the inherent Power of a tribunal to interpret the text establishing its yunsdiction It 1s also contrary to a clear Specific provision of the Statute of the Court as well as to the general Articles 1 and 92 of the Statute and of the Charter, respectively, which require the Court to function in accordance with its Statute Now what 1s the result of the fact that a reservation or part of it are contrary to the provisions of the Statute of the Court? The result 1s that that reservation or that part of its invalidPeaceful Settlement of international Disputes 591 Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v USA) IC) Rep 1984 392, International Court of Justice The United States had made a Declaration in April 1984 (see above) limiting its Optional Clause Declaration. It did this after it became clear that the dispute with Nicaragua was to be placed before the Court. The Court considered that the tation had no effect on the present case. yn of the Court are facultative, uni- 59. Declarations of acceptance of the compulsory jurisdictior not to make. In making the deciar- lateral engagements, that States are absolutely free to make or ation a State is equally free either to do so unconditionally and without limt of time for its duration. oF to qualify t with conditions or reservations. In particular, it may limit ws effect to disputes ansing after a certain date: or it may specify how long the declaration stself shall remain in force, or what notice (if any) will be required to terminate it. 60. In fact, the declarations, even though they are unliateral acts, establish a series engagements with other States accepting the same obligation of compulsory yurisdiction, m which the conditions, reservations and time-limit clauses are taken into consideration. 64. The Court would also recall that in previous Cases in which it has had to examine the recipro- cal effect of declarations made under the Optional Clause, it has determned whether or not the “same obligation’ was in existence at the moment of seising of the Court, by comparing the effect Of the provisions, in particular the reservations, of the two declarations at that moment 65. In sum, the six months’ notice clause forms an important integral part of the United States Declaration and it is a condition that must be complied with in case of either termination or modifica- tion, Consequently, the 1984 notification, in the present case, cannot override the obligation of the United States to submit to the compulsory jurisciction of the Court visé-vis Nicaragua, a State accepting the same obligation of bilateral Legality of Use of Force Case (Provisional Measures) (Federal Republic of Yugoslavia v Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States) 38 ILM 950 (1999), International Court of Justice The Federal Republic of Yugoslavia (FRY) brought this case against ten North Atlantic Treaty Organization (NATO) States in relation to events that were occur- ring during the armed conflict between NATO and the FRY in Kosovo (being a constituent part of the FRY). The IC} declined to order provisional measures against any of the respondent States and made some comments about the Court’s jurisdiction. 18. Whereas the Court 1s mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and secunty under the Charter and the Statute of the Court, 19, Whereas the Court deems it necessary to emphasize that all parties appearing before st must act in conformity with their obligations under the United Nations Charter and other rules of inter national law, including humanitarian law, 47, Whereas there 15 a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the lormer requires consent, the latter question can only be reached when the Court deals withPeaceful Settlement of International Disputes Salty of such acts are required to be resolved by peaceful }0 Article 33 of the Charter, is left to the parties, Nes should take care not to aggravate or extend the dispute, B1ves rise to threat to the peace, breach of the peace or act of Pecial responsibilities under Chapter Vil of the Charter ts the Request for Provisional Measures means, the choice of which, pursuant t 49 Whereas in this context the parti 50. Whereas, when such a dispute aggression, the Security Council has 5; The Court Reject NOTES 1. The 16) has jurisdiction to attempt to settle a dispute only f the parties to the dispute consent tothe 1CJ so doing, Partly for this reason, many international disputes never reach the IC). Ae evident from the decision in the Legality of Use of Force Case, both the IC) and States still have obligations under international law to settle disputes peacefully irrespective of whether the IC) has jurisdiction in a particular instance. In Armed Activities on the Terztory ofthe Cana (Congo v Rwanda) (Provisional Measures) IC] Rep 2002, the ICJ reaffirmed that there is a ‘fundamental distinction’ between the Court having jurisdiction and whether an act is in Violation of international law. 2. The main methods by which the IC} has jurisdiction in contentious cases are where the Parties specifically agree to submit a defined dispute to it (a compromis), as was the case in the various Continental Shelf Guves (see Chapter 10); by a compromiasory clause in a multilateral or bilateral treaty, where the treaty provides for reference of certain disputes to the Court, as in the United States Diplomatic and Consular Staff in Tehran Case, IC} Rep 1980 3 (below), or where the parties have made a declaration under Article 36(2), known as the ‘Optional Classe’, accepting the compulsory jurisdiction of the Court in all matters not specifically excluded by the State, as the parties had done (or appeared to have done! Cave, A number of these declarations were made to the PCY for the IC} due to Articles 36(5) and 37 of the IC] Statute. “4 Misaniued that one difficulty of the Optional Clause method of accepting jurisdiction is that the State so declaring has pethaps little control over deciding whether the particular dispute {appropriate for settlement by the IC). There are few declarations which, like Hait have any reservations. India’s Commonwealth reservation (see above (2)) was declared to he a valid reservation in Aerial lacicent of 10 August 1999 Pakistan v fata IC} Rep 20090, para 44) The vast majority of States either have not made any declaration under the Optional Clause, or have significant reservations in their declarations, such as India’s. Of the five Permanent Members of the Security Council, only the United Kingdom has a current declaration under the Optional Clause, and that declaration includes reservations. This has the effeet of reducing the ability of the IC} to settle international disputes and decreasing the possi the IC} clarifying and developing international law. 4. The concept of reciprocity allows a State to rely on a reservation by another State party to the IC} even if that reservation has not been made by the first State, as seen in the Norwe Loans Case, above. : $5. In the Qutar v Bulrain qurisdiction ~ Second Phayed Case (see Chapter 3), the 1C} decided, as a Matter of treaty interpretation, that the treaty in question gave each State the ability te bring a claim to the IC) unilaterally. 6. ta many of the caves brought to the IC}, one party objects to the jurisdiction of the ICH and the Court has to decide the question of whether it hay jurisdiction betore procevdlins te decide the merits of the dispute, However, the Court can eave the neue of jurisdic ton until ) in the Nicaragua W's jurisdiction and remain current ty ot iant