Abstract
The foregoing analysis of the characteristics and operation of the compétence de la compétence of the International Court, points beyond doubt to the fact that this is the most serious single power conferred on the Court. Attempts to deprive the Court of this power by the agreement of the parties or by a reservation in the acceptance of one of them has been referred to in previous parts of this study. Such attempts are reminiscent of reservations made, or suggested, in the course of international arbitration1 where the practice of leaving for the parties the power to determine the nature of the controversy was not considered an intolerable transgression on the judicial nature of the arbitral tribunal.2
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References
See Chapter I, supra at 27. See also the proposals presented to the Second Peace Conference at the Hague (1907) by the Swedish, the Brazilian, the Portuguese, the American and the British Delegations for the amendment and additions to the Convention for the Pacific Settlement of International Disputes of July 29, 1899, in 2 [Ministère des Affaires Etrangères] Actes et Documents de la Deuxième Conférence de la Paix 885 (Annexe 22, Arts. 16, 17); 886 (Annexe 23, Arts. 1, 4); 895 (Annexe 34, Arts. 16, 16a); 899 (Annexe 37, Arts. 1, 2); 904 (Annexe 39, Art. 16). English translation in 2 [Scott] The Proceedings of the Hague Peace Conferences. Translation of Official Texts. Conference of 1907 at 878, 879, 888, 892, 899.
No precedent could be found where a reservation of the type mentioned above was held invalid. Some arbitral tribunals found, however, other types of reservations to be incompatible with their “dignity,” with the principle of res judicata, or with the “purpose of the compromis” and as a result refused to give effect thereto. See e.g., “Arbitrage au Sujet de la Détermination des Limites entre l’Autriche ou plutôt la Galicie et la Hongrie près du Lac dit ‘L’Oeil de la Mer’“ (1902), 8 Rev. Dr. Int’l & Lég. Comp. 196,198, 212 (2 me sér. 1906).
See Chapter II, supra at 48.
Compare the reservations attached to the ratification of the Protocol of Signature deposited by El Salvador on August 29, 1930 [Appendix VI, No. 35]. The acceptance of this state excluded “disputes or differences concerning points or questions which cannot be submitted to arbitration in accordance with the political Constitution of this Republic” as well as “pecuniary claims made against the nation.” Although the declaration did not reserve to the declarant state the power to decide whether a dispute was within the excluded categories, the terms of the reservations were perhaps broad enough to give room for a contention to that effect. See Hudson, The Permanent Court of International Justice 397 n. 49 (1934).
See Lauterpacht, “The British Reservations to the Optional Clause,” 10 Economica 137, 154, 169 (1930). See also Hudson, supra, at 397.
See Appendix VI, No. 145.
I.e., declarations of France [49], India [67], Liberia [80], Mexico [88], Pakistan [103, 104], Sudan [117] and South Africa [137]. Declarations with underlined numbers are in force.
See Briggs, “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice,” 93 Recueil des Cours 229, 302 (1958-I).
Jennings, “Recent Cases on ‘Automatic’ Reservations to the Optional Clause,” 7 Int’l & Comp. L. Q. 349, 362 (1958).
See Appendix VII, No. 10(A).
Briggs, supra, note 1 at 300.
[1905–1951] I.C.Y.B. 193 (Original French text in [1950–1951] Annuaire de la Cour Internationale de Justice 191).
Id. at 194.
Rosenne, The International Court of Justice 342 n. 2 (1957).
See Chapter II, supra at.
1 Case Concerning Rights of Nationals of the United States of America in Morocco, Pleadings, Oral Arguments and Documents 238 (I.C.J., 1952).
See 2 id. at 434.
1 id. at 257, 262.
Accord, Lauterpacht’s Separate Opinion in the Norwegian Loans Case, [1957] I.C.J. Rep. 9, 60.
See [1957] I.C.J. Rep. 9, 18.
See “Exceptions Préliminaires Présentées par le Gouvernement du Royaume de Norvège,” in 1 Case of Certain Norwegian Loans, Pleadings, Oral Arguments and Documents 119, 121–9 (I.C.J., 1957).
See id. at 129–32.
Id. at 131 (English translation quoted from [1957] I.C.J. Rep. 9, 73 (Diss. Op. of Judge Basdevant)).
See id. at 163, 173.
[1957] I.C.J. Rep. 9, 25. (The question is discussed in detail in Chapter III, supra).
Ibid.
Id. at 25–6. But see, id. at 93 (Diss. Op. of Judge Read).
Id. at 27. But see, id. at 34, 61 (Sep. Op. of Judge Lauterpacht), and at 68 (Diss. Op. of Judge Guerrero).
See id. at 76.
See id. at 94.
See id. at 28, 29–33.
Jennings, supra, p. 273, note 2 at 361.
Chapter IV at 177–180.
See Preliminary Objections of the Government of the United States of America, Inter-Handel Case, Pleadings, Oral Arguments and Documents 303–26 (I.C.J., 1959).
See generally, Briggs, supra, p. 273, note 1 at 355–9, and Chapter IV, supra.
Pleadings, supra, p. 279, note 3 at 411.
Id. at 410.
Id. at 320, 452.
See id. at 466, 610.
Id. at 320. And see Reply of the U.S. Agent in id. at 601, 610.
Id. at 475.
Id. at 507.
[1959] I.C.J. Rep. 4, 26.
Accord, Briggs, “Interhandel: The Court’s Judgment of March 21, 1959, on the Preliminary Objections of the United States,” 53 Am. J. Int’l L. 547, 558 (1959).
Application Instituting Proceedings on behalf of the Government of the United States of America, Aerial Incident of 27 July 1955, Pleadings, Oral Arguments and Documents 22, 23 (I.C.J., 1959).
Id. at 301, 305 (Observations and Submissions of the U.S.A.). See also this argument as maintained in the Preliminary Objections of Norway in 1 Case of Certain Norwegian Loans, Pleadings, supra, p. 277, note 1 at 131, and by Switzerland in the Oral Hearings in the Interhandel Case, Pleadings, supra, p. 279, note 3 at 579.
Pleadings, supra, note 2 at 308.
Gross, “Bulgaria Invokes the Conally Amendment,” 57 Am. J. Int’l L. 357, 368 (1962).
See [1959] I.C.J. Rep. 4, 111–5. And see further details of this opinion infra.
Pleadings, op. cit., supra, p. 282, note 2 at 676, 677.
Ibid.
Accord, Gross, “The Jurisprudence of the World Court: Thirty-Eighth Year,” 57 Am. J. Int’l L. 751, 771 (1963).
See Application Instituting Proceedings on behalf of the Government of the United Kingdom, Pleadings, supra, p. 282, note 2 at 34, 36.
Interhandel Case, [1959] I.C.J. Rep. 6, 103 (Diss. Op. of Judge Lauterpacht). Accord, his Separate Opinion in the Norwegian Loans Case, [1957] I.C.J. Rep. 9, 34.
Dissenting Opinion of Judge Levi Carneiro in the Anglo-Iranian Oil Co. Case, [1952] I.C.J. Rep. 93, 154. And see other non-judicial authorities to the same effect cited in Chapter IV, supra, p. 153, note 5.
See this argument discussed in detail in Lauterpacht’s Separate Opinion in the Norwegian Loans Case [1957] I.C.J. Rep. 9, 48–50.
See details in Chapters I, II supra at 32–8, 48–51.
See Lauterpacht’s Separate Opinion, supra, p. 285, note 3 at 44–6.
Fachiri, The Permanent Court of International Justice 100 (2d ed. 1932).
Lauterpacht, supra, p. 285, note 3 at 56–7. Accord, Maus, Les Réserves dans les Déclarations d’Acceptations de la Juridiction de la Cour Internationale de Justice 91–2 (1959).
Interhandel Case, [1959] I.C.J. Rep. 6, 118.
Id. at 118–9.
See e.g., Lauterpacht, supra, p. 285, note 3 at 62 where he discussed the invalidity of argreements accepting jurisdiction subject to reservations identical to the one embodied in the French declaration of 1949 [49].
See Judge Lauterpacht’s individual opinions in the Norwegian Loans Case, [1957] I.C.J. Rep. 9, 34–66; the Interhandel Case (Indication of Interim Measures) [1957] I.C.J. Rep. 105, 117–20; the Interhandel Case (Prel. Obj.), [1959] I.C.J. Rep. 6, 95–122. And see Judge Spender’s separate opinion in the latter case, id. at 54–74.
See e.g., Dubisson, La Cour Internationale de Justice 186, 189 (1964); 2 Cavaré, Droit International Public Positif 319 (1962); Maus, supra, p. 286, note 4 at 160; Jennings, supra, p. 273, note 2 at 362, Waldock, “The Decline of the Optional Clause,” 32 Brit. Yb. Int’l L. 244, 272–3 (1956) (also his, “The Plea of Domestic Jurisdiction before International Legal Tribunals,” 31 id. at 96, 136 (1954)). And see Berlia, “La Jurisprudence des Tribunaux Internationaux en ce qui concerne leur Compétence,” 88 Recueil des Cours 109, 115–8 (1955).
[1959] I.C.J. Rep. 6, 91. See also, id. at 76 (Diss. Op. of Judge Klaestad). Judge ad hoc Carry agreed also with this conclusion. Id. at 32.
See [1957] I.C.J. Rep. 9, 67–70 (Diss. Op. of Judge Guerrero). In this opinion Judge Guerrero did not explicitly state that the Court had jurisdiction over the case. He reached a seemingly self-contradicting conclusion by describing the whole French declaration as “null and void” while declaring that he “cannot agree that the Court is without jurisdiction.” Id. at 70. Compare Guerrero, “La Qualification Unilatérale de la Compétence Nationale,” in [Constantopoulos et al.] Grundprobleme des Internationalen Rechts, Festschrift für Jean Spiropoulos 207, 212 (1957), where he seemed to be subscribing to approach “1,” above. (The Article was apparently written before the judgment in the Norwegian Loans Case). See also for the invalidity of the reservation and the validity of the acceptance in the rest of the declaration, Perrin, “L’Affaire de L’Interhandel-Phase des exceptions préliminaires,” 16 Annuaire Suisse de Droit International 73, 167–68 (1959); Verzijl, “La Cour Internationale de Justice — Affaire Relative à Certains Emprunts Norvégiens,” 4 Nederlands Tijdschrift voor Internationaal Recht 373, 399–400 (1957) and his, “The International Court of Justice in 1959,” Part I, 6 id. 362, 377–8 (1959).
[1957] I.C.J. Rep. 125, 142. Cited in this context by Briggs, supra, p. 273, note 1 at 360.
Briggs, id. at 362. However, the bearing of the above Nottebohm rule is apparently doubtful. The self-judging reservation is “an intrinsic fact, built into and forms an integral part, of the declaration,” while the “unilateral attempt” referred to in the Nottebohm text was the extrinsic fact of the termination of the declaration after the seisin. See Gross, supra, p. 282, note 5 at 378.
See [1959] I.C.J. Rep. 6, 71 (Diss. Op. of Judge Klaestad).
See a discussion of this distinction in the Norwegian Loans Case [1957] I.C.J. Rep. 9, 56–7 (Sep. Op. of Judge Lauterpacht). See also, Iaccarino, “Delia c.d. Competenza sulla Competenza dei Tribunali Internazionali,” 14 Diritto Internazionale 357, 404 (1960); Perrin, upra, p. 288, note 2 at 165–72.
See a proposal for redrafting the self-judging reservation in the U.S. declaration so as to exclude “matters which have been traditionally considered” by the U.S. as matters within its domestic jurisdiction in Sohn, “International Tribunals: Past, and Future,” 46 A.B.A.J. 23, 26 (1960). A clear example of questions traditionally considered by the U.S. Government as withinits domestic jurisdiction though they may not necessarily be so under the general criteria of international law can be found in the disputes relating to the Panama Canal. See further examples in [American Bar Association — Section of International and Comparative Law] Report on the Self-judging Aspect of the United States’ Domestic Jurisdiction Reservation with Respect to the International Court of Justice 43–4 (1959).
[1957] I.C.J. Rep. 9, 95 (Diss. Op. of Judge Read). However, Judge Read wrote that he was “disinclined to bring notions of ‘good faith’ and ‘abus de droit’ into the question.” Id. at 94.
See Inter Handel Case, [1959] I.C.J. Rep. 6, 58 (Sep. Op. of Judge Spender).
See Appendix VII, No. 6 (B). Declaration of Liberia [80] uses the word “consider” and declaration of Mexico [88] uses the words “in the opinion of.”
See generally Norwegian Loans Case, [1957] I.C.J. Rep. 9, 50–2 (Sep. Op. of Judge Lauterpacht); Interhandel Case, [1959] I.C.J. Rep. 6, 57–9 (Sep. Op. of Judge Spender); id. at 111–5 (Diss. Op. of Judge Lauterpacht). And see, Briggs, “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice,” 93 Recueil des Cours 229, 303 (1958-I); Maus, supra, p. 286, note 4 at 158–61.
P.C.I.J., ser. A/B, No. 77 at 98 (1939).
See e.g., Perrin, supra, p. 288, note 2 at 172–74; Gross, supra, p. 282, note 5 at 376–8. The latter imputes this doctrine to Guggenheim, Bourquin and, inaccurately, to Briggs. Gross himself though commending this approach concludes in favor of declaring the reservation incompatible with Art. 36(6) the integrity of which is safeguarded, at least for the members of the U.N. by Art. 103 of the Charter. Id. at 380–1. And see supra, p. 282, note 3 for the instances in which this approach was defended in practice.
Hudson, “The World Court: America’s Declaration Accepting Jurisdiction,” 23 A.B.A.J. 832, 836 (1946) (Compare Hudson, The Permanent Court of International Justice 397 (1934)). See also, Kelsen, The Law of the United Nations 529 (1951); Wilcox, “The United States Accepts Compulsory Jurisdiction,” 40 Am. J. Int’l L. 699, 718–9 (1946); Hyde, “The United States Accepts the Optional Clause,” id. at 778, 780. And see for the validity of the self-judging reservation in general Brierly and Kaeckenbeeck in their responses to the questionnaire addressed by M. Rousseau in 43 Annuaire 28, 32 (1950-I).
See Interhandel Case (interim Measures), [1957] I.C.J. Rep. 105, 113–4 (Diss. Op. of Judge Koo).
It could even be said, despite the assurances given by the Court in both the Norwegian Loans Case and the Interhandel Case that the question of the validity of the reservation was not considered, that by acting upon the invocation of this reservation in the former case and by passing to the question of admissibility in the latter, the Court has in a sense implicitly considered the declaration containing the reservation as valid. An opposite conclusion is reached in Anand, Compulsory Jurisdiction of the International Court of Justice 212 (1961).
Accord, Jennings, “Recent Cases on Automatic Reservations to the Optional Clause,” 7 Int’l & Comp. L.Q. 349, 363 (1958). It could be argued, however, that even under approach “1” above the Court may deduce from the non-invocation of the reservation an acquiescence in the international character of the dispute and therefore will be able after dismissing the other objections to assume jurisdiction on the basis of forum prorogatum.
Waldock, “The Plea of Domestic Jurisdiction before International Legal Tribunals,” 31 Brit. Yb. Int’l L. 96, 135 (1954).
See Chapter IV, supra at 174–80.
This was the situation in both the Norwegian Loans Case (1957) and the Aerial Incident of July 27, 1955 (U.S.A. v. Bulgaria) Case (1960). Two questions should be considered in this respect. First, whether the reserving state can assail its own declaration, and second, whether it is always practically more advisable for the respondent to invoke the reservation in the applicant’s declaration than to challenge its validity. As to the first question, it is doubtful that a state can assail its own declaration as invalid, especially if it is in the position of applicant. See Lauterpacht’s Sep. Op. in the Norwegian Loani Case, op. cit. at 61; Maus, supra, p. 286, note 4 at 93. As to the second question, it is true that the respondent may find it more advisable not to invoke the reservation in regard to the issue in dispute lest this invocation should be quoted against it in future cases. In this situation, the defendant may prefer to base its objection against jurisdiction on the invalidity of the applicant’s declaration if the reservation attached to that declaration is absent in its own.
See Chapter II, supra at 66–68.
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Shihata, I.F.I. (1965). The Court’s Attitude Toward the Challenge to Its Power to Determine Its Jurisdiction. In: The Power of the International Court to Determine Its Own Jurisdiction. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5908-3_7
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