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Australian Year Book of International Law |
Malgosia Fitzmaurice[*]
This essay will examine a number of issues concerning the relationship between the law of treaties and the Optional Clause system which arose in two recent cases before the International Court of Justice (ICJ), namely, the Case Concerning the Land and Maritime Boundary (Cameroon v Nigeria), the Bakassi Peninsula Case,[1] and the Fisheries Jurisdiction Case (Spain v Canada). [2] These issues include, in particular, the legal character of Optional Clause declarations, the applicability of the general rules of interpretation of treaties to them, and the legality of certain reservations to these declarations, as well as the applicability of other aspects of the law of treaties in the context of the Optional Clause system. This article will not attempt to cover all the aspects of Optional Clause declarations since many excellent publications are available that already do this,[3] but will concentrate on the particular points outlined above. Before coming to consider these two cases, it is necessary to review briefly certain aspects of the existing relevant jurisprudence.
The system under Article 36 of the Statute of the ICJ is, in particular as it has been interpreted by the Court, quite complex, involving a number of distinct legal elements and relationships, and it is as well to be quite clear as to the terminology used in relation to each of these elements. Thus, the term 'Optional Clause' will refer to Article 36 itself, the term 'Optional Clause declaration' to a declaration made by a state pursuant to paragraph 2 of the Optional Clause, and the term 'Optional Clause system' to the whole system arising under the Optional Clause, which includes the Optional Clause itself (in its context as an Article of the Statute of the ICJ, itself an integral part of the Charter of the United Nations), the individual Optional Clause declarations of states and the consensual relations between declarant states which arise as a result of them. The issues that arose in the two recent cases concern, principally, the declarations themselves and the consensual relations between the declarant states. But the Bakassi Peninsula Case , following on the Rights of Passage Case,[4] also involves issues relating to the interpretation of parts of the Optional Clause itself.
A word may usefully be added concerning the use of the word ‘reservation’ to describe the conditions or limitations which it has become the common practice of states to place upon their acceptance of the Court’s jurisdiction in Optional Clause declarations. Use of the word ‘reservation’ in this context has become so commonplace that it would probably now be confusing to refrain from its use. However, it needs to be emphasised that no conclusions as to the ‘treaty’ nature of Optional Clause declarations should be drawn from its use; nor are the treaty rules relating to reservations really at all applicable to the conditions in Optional Clause declarations. The word ‘condition’ would, arguably, be more appropriate, and is, indeed, the word used in paragraph 3 of the Optional Clause.
This article mainly concerns the issue of the legal character of Optional Clause declarations and the principles to be applied in their interpretation. In considering the jurisprudence that existed prior to the cases under review in Part 2, I will treat the two issues of legal character and principles of interpretation separately and successively. The order is logical in the sense that, in the ordinary course one might anticipate that the principles of interpretation to be applied would follow from the legal character ascribed to Optional Clause declarations. However, in practice, it will be found that the Court has tended to be (and, indeed, remains) somewhat ambiguous in its findings concerning the legal character of Optional Clause declarations; whereas it has tended to be rather clearer in its formulation of principles to apply to their interpretation. In consequence, to an extent, one finds oneself reversing this natural order, and looking to the applicable principles of interpretation to supply insight into the true legal character of the declarations.
Already before the present Court was set up, the foundations of the jurisprudence relating to the character of Optional Clause declarations had been laid, in part through decisions of the Permanent Court of International Justice (PCIJ) and in part through the practice of states within the League of Nations. In particular, two aspects were already established which are the essential background to the development of the jurisprudence of the ICJ in relation to the Optional Clause system. These two aspects are described briefly in this section. I shall consider some of the implications of these foundations in relation to development of the ICJ’s jurisprudence prior to the two cases under review in the next section.
The particular issue that has been consistently at the heart of the debate concerning the legal character of Optional Clause declarations, and that was fundamental to the arguments before the Court in the two recent cases, is the extent to which Optional Clause declarations are, or form part of, a treaty. To what extent are the principles of treaty law, and the rules of interpretation relating to treaties, applicable to them?
Optional Clause declarations may be seen as having a treaty character in two ways. In the first place, they are documents that originate from within what is in reality a treaty system (the Charter of the United Nations, and the Statute of the ICJ, which is an integral part of it). In the second place, however, it has long been part of the jurisprudence of the Court concerning Optional Clause declarations that they give rise to a consensual relationship between those declarant states between which there exists, in accordance with the terms of their respective declarations, reciprocity in relation to their submission to the jurisdiction of the Court in accordance with the terms of Article 36, paragraph 2, of the Statute.
It is conceivable that the jurisprudence relating to Optional Clause declarations might have developed on the basis that their juridical nature lay entirely within the field of treaty law. For example, in the Anglo-Iranian Oil Company Case,[5] Judges Azevedo and Read, in dissenting opinions, and Judge Fitzmaurice still regarded Optional Clause declarations as basically treaty documents. But, notwithstanding the strong arguments in favour of this position from judges and jurists — arguments that remained alive in the submissions of the parties, and in strong dissenting judgments, in the two cases under review in this article — this is not, in fact, the way the Court’s jurisprudence has developed. According to the consistent jurisprudence of the World Court, Optional Clause declarations have a dual character. They are on the one hand, unilateral declarations, and on the other hand simultaneously documents that give rise to consensual relations between the declarant state and other states which have previously made, or which subsequently make, declarations on a basis which gives rise to reciprocity.
This position was first enunciated by the PCIJ in two cases, namely, the Phosphates in Morocco Case [6] and the Electricity Company of Sofia Case.[7] The Court, in the first of these two cases, pointed out that the actual declaration was a unilateral act and that this factor should play a decisive role in setting the principles of its interpretation. However, the declaration triggered reciprocal obligations. This observation was further developed in the second of the above-mentioned cases. There, the Court stated that the submission of Optional Clause declarations resulted in the establishment of a contractual obligation. The remarks of the PCIJ resulted from the invocation by Belgium of two heads of the Court’s jurisdiction of equal value: a general treaty of arbitration with Bulgaria and the declarations of the two states made under Article 36, paragraph 2 of the Statute. The Court emphasised that the legal obligations that resulted from the acceptance of the compulsory jurisdiction of the Court were of a similar legal nature to those stemming from a general arbitration agreement; in other words, they were treaty obligations. The view that the submissions of unilateral declarations gave rise to an agreement between the declarant states was fully supported by the assenting Judges.[8]
Notwithstanding the Court’s emphasis in the Electricity Company of Sofia Case on the fact that Optional Clause declarations gave rise to a consensual relationship between declarant states, the most influential aspect of these cases was the Court’s emphasis in the Phosphates in Morocco Case on the unilateral nature of the Optional Clause declaration, and the decisive nature of this in relation to their interpretation. This position, though consistently adopted and applied in the judgments of the Court, nevertheless raises a number of questions and has been the subject of much discussion and controversy. It is apparent, both from the pleadings of the parties and from the opinions of the Judges in the two cases under consideration, that a number of controversial issues are still not entirely resolved and that the exact legal character of Optional Clause declarations remains something of a mystery.
The Optional Clause was introduced into the Statute of the PCIJ with a view to the creation of something resembling a system of compulsory jurisdiction for the Court. Taking this into account, application of the principle of effectiveness to the interpretation of the Optional Clause could have been at least restrictive of the nature and extent of reservations to Optional Clause declarations which declarant states would have been free to make. Indeed, paragraph 3 would appear on the face of it to have been expressly intended to impose such restrictions. However, due to the poor level of adhesion to the Optional Clause the League of Nations took the position that it was not intended that the terms of the Optional Clause should place any restrictions on the right of states to place reservations (or conditions) upon their acceptance of the so called ‘compulsory’ jurisdiction of the Court. This position was regarded, by the time the Statute of the ICJ was under consideration, to be an established practice of nations.[9] Thus not only is submission to the Court’s jurisdiction under Article 36 an entirely voluntary act by a state, but also a state is absolutely free to specify the precise limits of its submission. The extent of this freedom, and the somewhat anomalous legal position it produces was emphasised by Fitzmaurice in 1976:
The fundamental query remains whether, unless States are given considerable freedom, even license in this matter, [the matter of the right of states to attach reservations or conditions to their acceptances of the compulsory jurisdiction] they, or many of them will be willing to accept the compulsory jurisdiction at all. In this connection, it is of some significance that, as a matter of strict law, and according to the actual terms of paragraph 3 of Article 36 of the Statute, practically all the reservations that have ever been made to optional clause acceptances are invalid (except in so far as they are made subject to a time period) because they do not come within the scope of the only other condition permitted by that provision (paragraph 3), namely ‘reciprocity on the part of several or certain States,’ but relate to, or comprise, matters of a wholly different order. This provision has however, together with the limitations it should entail, always been treated as a dead letter, both by States and by the two International Courts before whom the practice has never been directly challenged.[10]
Fitzmaurice expressed the hope that an opportunity would be found for a state to challenge this position before the Court, and went so far as to suggest a basis on which it might be done. However, states have refrained from doing so, even when opportunity was offered; and as we shall see when we come to consider the second of the two recent cases, the Court has, in fact, strongly reaffirmed the principle of freedom of states in relation to the making of reservations in Optional Clause declarations.[11] This freedom is an essential qualitative aspect of the unilateral nature of the act of submission to the Court’s jurisdiction which is an essential element in the Court’s approach to interpretation of Optional Clause declarations.
The first case in which the legal nature of Optional Clause declarations was in issue before the ICJ was the Anglo-Iranian Oil Company Case.[12]
Strictly, the issue before the Court in this respect was the interpretation of the wording of Iran’s Optional Clause declaration, rather than its legal character. We shall return to the question of interpretation below. But here it is necessary to note that the issue of interpretation turned, to some extent at least, upon the view the Court took of the legal character of Optional Clause declarations. In particular, had the Court found that they were fully to be regarded as treaty documents — as was contended by the United Kingdom — they would, upon application of the full range of principles of interpretation applicable to treaties, have interpreted Iran’s declaration differently from the way in which they did. As it was, two dissenting Judges, Judges Alvarez and Read, did explicitly adhere to the concept of Optional Clause declarations having the character of consensual agreements between declaring states, though on different bases. Judge Alvarez said:
The declaration is a multilateral act of a special character; it is a basis of a treaty made by Iran with the States which have already adhered and with those which would subsequently adhere to the provisions of Article 36, paragraph 2, of the Statue of the Court.[13]
Judge Read, on the other hand, put it in the following manner:
I am unable to accept the contention that the principles of international law which govern the interpretation of treaties cannot be applied to the Persian Declaration, because it is unilateral. Admittedly it was drafted unilaterally. On the other hand, it was related, in express terms, to Article 36 of the Statute, and to the declarations of other States which have already deposited, or which might in the future deposit, reciprocal declarations. It was intended to establish legal relationship with such States, consensual in their character, within the régime established by the provision of Article 36.[14]
The opinions of other Judges, however, denied any contractual character to Optional Clause declarations. For example, Judge Badawi said that the Optional Clause declaration system established by Article 36 of the Statute had nothing in common with collective convention. It was concerned with individual declarations, varying considerably in character.[15]
The position actually adopted by the Court in its judgment, is, in fact, equivocal on the issue of the legal character of Optional Clause declarations. In this respect, the Court said:
the text of the Iranian Declaration is not a treaty text resulting from the negotiations between two or more States. It is a result of unilateral drafting by the Government of Iran…[16]
This pronouncement can be taken as meaning that Optional Clause declarations are not, as such, treaty documents, but unilateral declarations. The Court’s wording in itself is open to another interpretation which Fitzmaurice placed on it in the following commentary on the above quoted passage:
It is clear, however, that in the above quoted passage the essential words are not that the Iranian Declaration was not ‘a treaty text’, but that it was not ‘a … text resulting from negotiations between two or more States’, and was ‘the result of unilateral drafting’ by one Government.[17]
Fitzmaurice adhered to the view that, though unilateral in form, Optional Clause declarations are treaty documents in substance.
The International Law Commission (ILC) similarly exhibited varied approaches to the problem of the legal character of Optional Clause declarations. Lauterpacht in his first Report on the Law of Treaties was a supporter of the treaty theory: that the relationship between states arising under Optional Clause declarations amounts to that under the law of treaties.[18] Lack of space prevents the present author from considering the ensuing discussion in the ILC in its entirety, however, it can by summarised as taking the position that ‘… such declarations could not be regarded as anything other than agreements or treaties within the meaning of the definition in Article 2, paragraph (a), of the draft’.[19] Unilateral declarations and other instruments of a unilateral nature were proposed to be included in the definition of a treaty in the Draft Articles on the Law of Treaties.[20]
While Fitzmaurice recognised the existence of a unilateral element in relation to Optional Clause declarations, he emphasised their substantive treaty contractual nature. He included them in the type of the legal phenomena which he named ‘unilateral Declarations that are unilateral in form but not in substance’.[21 ] He explained that generally this type of declaration:
is unilateral in form but contractual in substance, either because it is one of two or more similar Declarations intended to be interdependent or interlocking, or because it is linked to the action of another State, which either forms the quid pro quo for it, or in respect of which it is itself the quid pro quo.[22]
Then, in relation specifically to Optional Clause declarations, he said:
the interlocking, and hence basically contractual nature of these Declarations arises directly from the condition of reciprocity attached to nearly all of them, the general effect of which is to limit the obligation of the defendant State to go before the Court under the Declaration to cases in which, were it plaintiff, it could itself take the other party to the Court under the corresponding Declaration made by that party.[23]
He further emphasised the importance of the substantive, treaty, aspect in the following footnote in which he said:
In essence, the two Declarations [that is to say, the Optional Clause declarations of the United Kingdom and Iran] (as with any two Declarations accepting the Court’s compulsory jurisdiction) together constituted an agreement, the point at issue, and the effect of the agreement in the given case, turning on the interpretation of a particular provision — in this case certain words in the Declaration of Iran.[24]
Waldock was of a similar view. He stressed the contractual nexus between the parties to Optional Clause declarations and their striking similarities to treaties. He said that:
the origins and the treaty character of the Optional clause declaration, the role of the Secretary-General of United Nations in receiving and registering notices of declarations under the Optional clause, the practice of States in making their declaration, and the jurisprudence of the Court, it is considered, leave no real doubt of the consensual nature of the juridical bond established between states by their declarations,[25]
but ‘…this is not to deny the unilateral character of the act by which a State gives its adherence to obligations of the Optional clause’.[26] He commented also on Judge Alvarez’s description of the character of the Optional Clause declaration as being a ‘multilateral act of a special character’. Waldock agreed that it is multilateral in that it results in relations with a number of states. But the particular relationship between any pair of states under declarations is not, according to Waldock, of the same character as that of the parties to a multilateral treaty, since the nexus between two states in this instance appears to be more bilateral than multilateral. He is right in saying that the declarations or any other later acts of accession to the Optional Clause do not affect the obligations of the two states as between themselves and that they have little bearing on the actual obligation to accept the Court’s jurisdiction, since there ‘is little mutuality among the collective body of the States adhering to the Clause’.[27] Nonetheless, the relationship is not entirely bilateral since the states while adhering the Optional Clause, submit themselves to the whole Statute of the ICJ. Thus, states with a legal interest, under Article 62, may, in a manner of speaking, participate in a process with a multilateral aspect. However, in the end, the unclear character of the Optional Clause declaration prompted Waldock to suggest that: ‘[t]he easiest course is, perhaps, to call it a consensual relation which is sui generis’.[28]
A similar view was expressed by the former President of the ICJ, Sir Robert Jennings, who in the 1984 Nicaragua Case (on jurisdication), adhered to the same opinion as expressed by Waldock, when he said that:
the discussion in the oral proceedings of whether or not the legal position of declarations under the Optional Clause is, or is not, governed by the law of treaties, I found not entirely helpful and in any event inconclusive. The fact of the matter must surely be that the Optional-Clause régime is sui generis. Doubtless some parts of the law of treaties may be applied by useful analogy; but so may the law governing unilateral declaration; and so, most certainly, may the law deriving from the practice of States in respect of such declarations.[29]
In the Nicaragua Case, the Court made several pronouncements on the legal nexus between the Optional Clause system and treaty
rules. In the admirable study by Professor Greig on this matter, he said: ‘[t]he Court has been ambivalent as to the nature of the bond created by declarations under Article 36, or by the combined effect of such declarations when an application has been made to the Court thus identifying particular declarations between which the necessary nexus must exist to found the Court’s jurisdiction’.[30] He concentrated in particular on the issue of good faith and the rules governing the termination of treaties. On the issue of good faith, the Court was of the view that no matter the type of international obligation, whether a unilateral obligation or a bilateral or multilateral obligation, it is subject to the basic principle of good faith.[31] It was with respect to declarations under which a state accepted the Court’s jurisdiction with ‘indefinite duration’ that the Court made an explicit analogy with the law of treaties. It said as follows: ‘[i]t appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity’.[32]
According to Professor Greig, the particular character of the Optional Clause declaration appears to indicate that although in many ways they create agreements, ‘it is also true that many of the conventional rules are inapplicable to the way in which declarations are made and operate’.[33] Thus, the practice of states may diverge from the rules contained in Article 56 of the 1969 Vienna Convention on the Law of Treaties (VCLT).[34]
Professor Greig is correct that the assessment of the issue of the period of notice contained in the United States Declaration and the Schultz letter (attempting to modify the original Declaration) depends in part on classification. The closer it is to a treaty in character, the more the United States had to follow the prescribed period of notice; the closer it is in nature to a unilateral declaration, the less stringent the requirements of the period of notice (the alternative which seems to be supported by state practice). But whatever the character of such a declaration, there is an undisputed duty to act in good faith, at least in respect of its termination. Thus,
some respect was due to the period of notice which the United States had promised to give other declarant States in the way it had framed its own declaration accepting the Court’s jurisdiction, and by this promise at least the United States was bound.[35]
However, it is important when considering the Court’s decision in the Nicaragua Case to bear in mind the dual nature of the Optional Clause system referred to above. In this case, the Court was considering the consensual relationship that had resulted from the declarations of the two states concerned; and the decision, so far as it applied aspects of treaty law, related to this aspect. As will appear below, the Court has subsequently distinguished the position of declarations in their unilateral aspect and in particular in relation to the formalities required by the Statute in relation to the making of an Optional Clause declaration, to which the Court, in the Bakassi Peninsula Case, refused to apply these provisions of treaty law (the duty of good faith).
The Rights of Passage over Indian Territory Case,[36] before the Court in 1957, raised other issues relating to Optional Clause declarations relevant to the two recent cases. Indeed, the Court’s judgment in this case has become a locus classicus in relation to various aspects of the Optional Clause system. In particular, this case involved an extensive analysis of paragraph 4 of the Optional Clause.[37 ] This provision outlines the formalities required in relation to submission of Optional Clause declarations and is of considerable practical importance since it pertains to the point in time from which reciprocal obligations of states arising from Optional Clause declarations come into existence. In the Rights of Passage Case, the Court interpreted paragraph 4 of the Optional Clause as containing two separate, unrelated elements: the deposit of a state’s Optional Clause declaration with the Secretary-General of the United Nations, on the one hand, and the duty of the Secretary-General to forward the declaration to the parties to the Statute and to the Registrar of the ICJ, on the other hand.[38] The Court in the Rights of Passage Case was explicit in asserting that the date from which reciprocal obligations of states arise is the date of the deposition with the Secretary-General of the declaration.[39]
The Court’s decision in this case turned essentially upon interpretation of paragraph 4 of the Optional Clause itself, rather than on any consideration of the underlying legal character of the Optional Clause system generally, or of Optional Clause declarations in particular, and thus in itself might be thought to lie somewhat outside the main theme of the present essay. But, though not directly in issue, certain attitudes towards the issue of the relationship between the Optional Clause system and the law of treaties are implied by the terms of the Court’s judgment. In this respect, the Court may be seen as reinforcing the ambivalence in relation to the legal character of Optional Clause declarations which was inherent in the basic jurisprudence on the issue already developed by the PCIJ. For, on the one hand, the decision that the question of the time of coming into force of Optional Clause declarations depended solely upon a proper interpretation of paragraph 4 of the Optional Clause may be seen (certainly by comparison with some of the arguments put forward by Nigeria in the Bakassi Peninsula Case , in which precisely the same issue was before the Court, see below) as reinforcing the purely unilateral nature of these declarations. On the other hand, the Court firmly reinforced the importance of the consensual bond which comes into existence between declarant states within the Optional Clause system: indeed describes this as ‘the consensual bond, which is the basis of the Optional Clause…’.[40]
We shall consider the implications of this aspect of the judgment in the Rights of Passage Case, as well as the substantial criticisms of the Rights of Passage doctrine contained not only in the arguments of Nigeria in the Bakassi Peninsula Case, but also in powerful dissenting opinions in that case and in commentary on the case from certain authors, when we consider the Bakassi Peninsula Case below.
What canons of interpretation are applicable to Optional Clause declarations?
It may be stated generally that the World Court’s interpretation of Optional Clause declarations has laid considerable emphasis on their unilateral nature. However, the starting point laid down by the Court in the judgment in the Anglo-Iranian Oil Company Case was that an Optional Clause declaration ‘must be interpreted as it stands, having regard to the words actually used’.[41] The Court then elaborated this position by stating that:
the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text…
These formulations, it may be noted, are in accordance with the principles of actuality and of natural and ordinary meaning which constitute Fitzmaurice’s first and second principles of interpretation, namely, that ‘treaties are to be interpreted primarily as they stand, and on the basis of their actual texts’; and that ‘particular words and phrases are to be given their normal, natural, and unstrained meaning, in the context in which they occur’.[42]
The Court, however, immediately proceeded, firstly, to qualify this statement in a manner that would not have been applicable to the interpretation of a normal treaty document, and then to add an important derogation from the principles that would have been applicable to the interpretation of a treaty. Thus, the Court continued the passage quoted immediately above with the following key words: ‘having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of that Court.’[43] The Court then went on to demonstrate that the subjective intention of the declarant state was not only relevant to the interpretation of its Optional Clause declaration in a way in which the subjective intentions of the parties are not generally relevant in interpretation of treaty documents, but also overrode a principle of treaty interpretation which would have been applicable in the case of a treaty document. This principle was that a treaty text should be interpreted in ‘such a way that a reason and a meaning can be attributed to every part of the text.’ This formulation had been put forward by the United Kingdom and approved by the Court in relation to the text of a ‘treaty … resulting from negotiations between two or more States’.[44] However, the Court had also made the following finding:
it may be said that this principle [to give meaning to all words] should in general be applied when interpreting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from the negotiations between two or more States. It is a result of unilateral drafting by the Government of Iran, which appears to have shown a particular degree of caution when drafting the text of the Declaration. It appears to have inserted, ex abundanti cautela, words which, strictly speaking, may seem to have been superfluous.[45]
Finally, the Court regarded Iran’s subjective intention as critical to the meaning of Iran’s declaration. It then proceeded to look to extraneous matters as evidence of that intention, and certainly did so to an extent that it would not have done in relation to the interpretation of a normal treaty.
Even though this approach of the Court would appear to follow naturally (indeed necessarily) from the view of the PCIJ in the Phosphates in Morocco Case that the unilateral nature of declarations had to be decisive in relation to their interpretation, it was not, in fact, fully acceded to by all the Judges. Judge Read, for example, was a staunch supporter of the applicability of all the canons of treaty interpretation to Optional Clause declarations.[46] This view was based on the premise that, notwithstanding the unilateral drafting of declarations, states-parties to the Optional Clause system are engaged primarily in the contractual relationship between themselves, a relationship that stems from the principle of reciprocity and has to be assessed in this context.
Thus certain conclusions may be drawn. It appears that the Court in interpreting Optional Clause declarations initially applied general canons of textual treaty interpretation. However, in order to be in a position to establish the scope of jurisdiction intended by a state by its unilateral declaration, it has ascertained the intention of that state.
The dilemmas inherent in this approach may be solved (and explained) through the approach adopted by Rosenne.[47] This author supports the view that in the interpretation of Optional Clause declarations, ‘a clear distinction has to be maintained between the canons of interpretation and the nature and process of interpretation’.[48] As to the canons of interpretation, generally speaking, the Court applies to other acts including declarations, the same rules as to the interpretation of treaties, that is to say, it establishes what words mean in their context (providing it does not lead to absurd results). If, however, this starting point results in an unsatisfactory outcome, then the Court’s attention ‘is focused not on what the words mean in their context but on allied questions of who used them and for what purpose’.[49] Rosenne explains that in the context of declarations, this involves establishing whether the case before the Court is compatible with the terms of jurisdiction, accepted unilaterally by each of the parties. Another explanation is that of Fitzmaurice in the following commentary on the judgment in the Anglo-Iranian Oil Company Case. He says:
It is clear, however, that … the essential words are not that the Iranian Declaration was not ‘a treaty text’, but that it was not ‘a … text resulting from negotiations between two or more States’, and was ‘the result of unilateral drafting’ by one Government. The conclusion seems to be that, in the Court’s view … extraneous elements constitute a more important element, and can more legitimately be resorted to, in the interpretation of unilateral, or rather unilaterally formulated, instruments, than in the case of bilaterally or multilaterally formulated ones, in respect of which the textual element will predominate.
Another point of interpretation which will arise in the second of the cases under review (the Fisheries Jurisdiction Case) is the problem of so-called restrictive interpretation of declarations.[50] Views have been expressed that in instances of consensual character of the Court’s jurisdiction ‘all international engagements purporting to confer jurisdiction on the Court ought to be subjected to what is known as restrictive interpretation, and that applies particularly to declarations.’[51 ] Both authors, Fitzmaurice and Rosenne,[52] agree that in the light of the Court’s practice this interpretation has no currency. It has to do with the Court’s jurisdiction in the event of the possibility that certain factors limiting the jurisdiction of the Court may have been present during the drafting of the declaration, thus affecting jurisdiction of the Court in a given case. As Fitzmaurice phrased it: ‘the issue raised is that of the “reality” of consent given…’,[53] not that of restrictive interpretation.
On 29 March 1994, Cameroon filed an Application to institute proceedings against Nigeria which related to the questions of sovereignty over the Bakassi Peninsula and to delimitation of the maritime boundary. By additional Application of 6 June 1994 the delimitation of the frontier between Cameroon and Nigeria from Lake Chad to the sea was raised. Additionally, Cameroon claimed monetary compensation for the material and non-material damage allegedly caused by Nigeria due to its unlawful acts in relation to disputed areas. Nigeria filed several Preliminary Objections against the ICJ’s jurisdiction and the admissibility of the Application. In the present essay, we are concerned only with the first of these Preliminary Objections. This was based, broadly speaking, on Cameroon’s alleged lack of good faith in implementation of the procedure in relation to the Optional Clause. The essence of Nigeria’s objection lay in the timing as between Cameroon’s deposit with the Secretary General of its Optional Clause declaration and the date of its commencement of proceedings against Nigeria. Nigeria itself had accepted the Court’s jurisdiction on 14 August 1965, with due observance of all formalities. Cameroon accepted the Court’s jurisdiction on 3 March 1994 and copies of its Optional Clause declaration were submitted to the Secretary-General. He in turn submitted the copies of this declaration to, inter alia, Nigeria, but only about ten and half months later. In the mean time, Cameroon had already instituted the proceedings before the Court on 29 March 1994. Nigeria claimed that it had had no knowledge of Cameroon’s Optional Clause declaration until it was notified by the Registrar of the Court that Cameroon had instituted proceedings. It was this short period of time between acceding to the Optional Clause system and the filing of the case, and the fact that, allegedly, Nigeria had no knowledge of Cameroon’s submission to the Court’s jurisdiction at the time when Cameroon instituted proceedings, which was the basis of Nigeria’s First Preliminary Objection. The objection was phrased as follows:
1. that Cameroon, by lodging the Application on 29 March 1994, violated its obligations to act in good faith, acted in abuse of the system established by Article 36, paragraph 2, of the Statute, and disregarded the requirement of reciprocity established by Article 36, paragraph 2, of the Statue and the terms of Nigeria’s Declaration of 3 September 1965; 2. That consequently the conditions necessary to entitle Cameroon to invoke its Declaration under Article 36, paragraph 2, as basis for the Court’s jurisdiction did not exist when the Application was lodged; and 3. Accordingly, the Court is without jurisdiction to entertain the Application.[55]
The relevant facts relating to Nigeria’s first preliminary objection were thus not really distinguishable from those in the Rights of Passage Case and Cameroon’s principal argument against Nigeria’s objection was simply that there was no reason for the Court not to follow its earlier decision. The Court effectively accepted this contention, and in the end dismissed the objection. In the first place, it strongly re-affirmed the principles of the Rights of Passage Case itself. The Court stated:
The conclusions … reached by the Court in 1957 reflect the very essence of the Optional Clause providing for acceptance of the Court’s compulsory jurisdiction. Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2, accepts jurisdiction in its relations with States previously having adhered to that clause. At the same time, it makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. The day one of those States accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be fulfilled.[56]
Having further noted that that principle had been affirmed in subsequent cases (the Temple of Preah Vihear [57] and Nicaragua Cases) the Court would have applied it in the present case without further consideration. But before doing so, the Court had to consider a number of arguments made by Nigeria. These arguments, the terms of the Court’s dismissal of them, as well as strong support for some of them from dissenting Judges in the case and the comments of certain authors on them, are all relevant to the question of the relationship between the Optional Clause system and the law of treaties.
A number of the Judges disagreed with the judgment of the majority in relation to their affirmation of the principle in the Rights of Passage Case itself. In general, the dissenting Judges could not endorse the interpretation of the Court in both Rights of Passage and the present case of the provisions contained in Article 34 paragraph 4. Judge Weeramantry persuasively explained that the classical interpretation of this Article presented by the Court in the Rights of Passage Case was incorrect in that it treated the two requisites contained in paragraph 4 separately, although both of them are expressed in imperative terms. Moreover, he pointed out that the basic rule of interpretation requires that ‘all words in the instrument under interpretation should, as far as possible, be given full efficacy’.[58] Similar concerns were voiced by Judge Koroma.[59]
Another issue in respect of the original interpretation in the Rights of Passage Case, and in the judgment under consideration, was the assertion by the Court in Rights of Passage that one factor in support of their interpretation of paragraph 4 of the Optional Clause was the element of uncertainty that would have been introduced into the Optional Clause system by an additional requirement ‘that information transmitted by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective’.[60] This assertion was, of course, relied on by Cameroon,[61] and was re-affirmed by the Court in its judgment.[62]
Nigeria alleged that Article 78 of the VCLT[63] applied to Optional Clause declarations. The Court in its Judgment made it quite clear that the régime provided for depositing and transmitting of declarations is ‘distinct from the régime envisaged for treaties under the Vienna Convention’.[64] For that reason the 1969 Convention may ‘only be applied to declarations by analogy’ [italics added].[65] Furthermore, the Court found that, in any event, to the extent that there was an analogy between the régime for Optional Clause declarations and the Vienna Convention, it was not with Article 78 of the Convention, which ‘is only designed to lay down the modalities according to which notifications and communications should be carried out’;[66] but with Articles 16 and 24 of the Convention[67] which governed ‘the conditions in which a State expressed its consent to be bound by a treaty and those under which a treaty comes into force’.[68]
This concept of two analogous processes, governed by different régimes, is somewhat elusive, and some confusion has arisen as to whether, in pointing to the analogy, the Court was not effectively applying the provisions of the Vienna Convention to Optional Clause declarations. For instance, Judge Koroma in his Dissenting Opinion argued that the approach of the Court towards the application of the law of treaties to declarations was contradictory. He stressed the fact that the Court initially adhered to the view that Article 36 paragraph 4 was distinct from the régime of the VCLT, later, however, taking the view that the general rule relating to treaties applied to unilateral declarations. It is submitted that the wording of the judgment quoted above does not bear this interpretation and that this view is further supported by the Court’s consideration of the ILC’s treatment of the matter. The Court quoted the following important passages from the ILC’s Report in which it had stated, firstly, as follows:
In the case of the deposit of an instrument with a depositary, the problem arises whether the deposit by itself establishes the legal nexus between the depositing State and other contracting States, or whether the legal nexus arises only upon their being informed by the depositary.[69]
The ILC had then continued in the following terms:
The Commission considered that the existing general rule clearly is that the act of deposit by itself establishes the legal nexus … This was the view taken by the International Court of Justice in the Rights of Passage over Indian Territory (preliminary objections) case in the analogous situation of the deposit of instruments of acceptance of the optional clause under Article 36, paragraph 2, of the Statute of the Court… Therefore the existing rule appears to be well-settled.[70]
The Court itself, having quoted these passages, then continued:
Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Rights of Passage over Indian Territory. That solution should be maintained.[71]
It appears, therefore, that the Court was rather pointing to the ILC’s adoption of the Court’s solution in Rights of Passage when discussing the framing of the Vienna Convention as support for the correctness of that decision, rather than applying, by way of analogy, the solution of the Vienna Convention to the Optional Clause declaration of Cameroon in the present case.
The second evolution in the law relating to treaties relied on by Nigeria arose as a result of the Court’s decision in the Nicaragua Case. In that case, the Court had said as follows:
It appears from the requirements of good faith that they [that is to say, Optional Clause declarations] should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity.[72]
Nigeria alleged that the requirement for a time period thus established by the Court with respect to the withdrawal of declarations should, equally, apply in relation to their coming into force. The Court rejected this argument, saying that the conclusion in the Nicaragua Case ‘in respect of the withdrawal of declarations under the Optional Clause is not applicable to the deposit of those declarations’.[73] The Court continued by way of explanation:
Withdrawal ends existing consensual bonds, while deposit establishes such bonds. The effect of withdrawal is therefore purely and simply to deprive other States which have already accepted the jurisdiction of the Court of the right they had to bring proceedings before it against the withdrawing State. In contrast, the deposit of a declaration does not deprive those States of any accrued right.
An interesting challenge to the correctness of this part of the Court’s decision is mounted by the authors Elias and Lim.[74] They oppose the concept of accrued rights as being applicable in the context of the Optional Clause declaration. The very function of such a clause is, they say, to ensure jurisdiction of the Court. They argued that we are not dealing here with any rights but simply with certain jurisdictional issues which are subject to a challenge in the event of a dispute.[75] In the event, however, that there is a right, it may be assumed that this right gives rise to another state’s obligation. This was the stand taken by Nigeria which claimed to be deprived of its rights by the deposit of the declaration of Cameroon. Due to its the lack of knowledge as to the existence of the Cameroon’s Declaration, it negotiated, not aware that certain concessions made, could have impaired its position before the Court. Thus the authors conclude: ‘the distinction between withdrawal and deposit thus appears to be one difficult to sustain, and the reason for allowing a reasonable period to elapse in the one case would appear to apply equally to the other’.[76] In this respect, however, it has to be noted that the Court’s view in relation to the Nicaragua case was not really based on the issue of the desirability, or fairness, in relation to a requirement for a reasonable time between deposit and coming into effect of Optional Clause declarations. The Court was rather persuaded by the lack of the juridical basis for requiring such a period which did exist in relation to their withdrawal.
The third argument of Nigeria was that the conduct of Cameroon in relation to their acceptance of the Court’s jurisdiction, and filing of the suit, ‘infringes upon the principle of good faith that today plays a larger role in the case-law of the Court than before…’.[77] The Court, in this respect, confirmed its existing jurisprudence according to which the principle of good faith, while well established, was not in itself a source of obligation in international law generally, but was a principle that had to be applied in implementation of existing obligations.[78] Since Cameroon did not infringe any right of Nigeria in the absence of a legal duty to inform Nigeria about its intention to bring proceedings before the Court, Nigeria could rely solely on the principle of good faith in support of its claim.[79] Further, the Court emphasised the fact that deposit of its declaration by Cameroon was published in the Journal of the United Nations, thus Nigeria must be taken to have known about it. It has to be stated, however, that several Judges expressed their concern at the issue of lack of good faith on the part of Cameroon.[80]
The final argument raised by Nigeria in support of its contention that the Court should not apply the doctrine in the Rights of Passage Case related to the question of reciprocity within the workings of the Optional Clause system. The definition of reciprocity as applied by the Court in this case was the classical one that derives from several previous cases, for example the Norwegian Loans Case[81 ]
and the Nicaragua Case.[82 ] Nigeria, however, put forward a wider interpretation of reciprocity. It maintained that on the date on which Cameroon filed its Application, it (Nigeria) was not aware of Cameroon’s acceptance of the Court’s compulsory jurisdiction:
Accordingly, it could not have brought an application against Cameroon. There was an absence of reciprocity on that date. The condition contained in the Nigerian Declaration was operative; consequently, the Court does not have jurisdiction to hear the Application.[83]
This interpretation was opposed by Cameroon as being wrong as to both fact and law. Nigeria denied the applicability of the precedent in the Rights of Passage Case in which it was said that the notion of reciprocity and that of equality as being not ‘abstract conceptions. They must be related to some provision of the Statute or of the Declarations’.[84] Nigeria argued that the definition of reciprocity expressed in its 1965 Declaration was more explicit through the addition of the words ‘and that is to say, on the sole condition of reciprocity’. Those words, according to Nigeria, indicated that they supplemented the concept of ‘coincidence’ required by Article 36 paragraph 2 by the element of mutuality inherent by the concept of reciprocity. Nigeria sought to mitigate the effects of the doctrine of the Rights of Passage Case ‘by creating an equality of risk and precluding that proceedings be brought before the Court by surprise’.[85] This interpretation, however, was rejected by the Court. It was of the view that the expression ‘on the sole condition of reciprocity’ ‘must be understood as explanatory and not adding any further conditions’ and not ‘as a reservation ratione temporis’.[86] It added that ‘the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute’.[87]
This particular statement of the Court prompted Judge Koroma to refer to what he termed ‘jurisdictional equality’ which must be ensured by the Court in its interpretation of the principle of reciprocity under the Optional Clause. Judge Koroma explained that:
to the extent that an application had been filed against a Party, but one which was not in a position to invoke the jurisdiction of the Court had it felt the need to do so — to that extent, the jurisdictional equality which should exist between two Parties had not existed.[88]
Thus the claim of Nigeria was not about delay in the receipt but about the lack of knowledge of the actions of Cameroon. Similar concerns were voiced by Judge Weeramantry when he said:
I note the prejudice the Rights of Passage case may cause to a party. A ruling which in effect confirms that the filing of a declaration becomes operative the very next moment after if filed could be an embarrassment to a State which is in the process of negotiation with another. Unknown to itself, it could have the ground surreptitiously cut from under its feet, perhaps after it has made some vital concession, in the belief that the matter is still under consideration.[89]
The Bakassi Peninsula Case indicates clearly that the legal character of the Optional Clause system generally, and of Optional Clause declarations in particular still remains very much a mystery. The main point is the applicability of the general law of treaties to the declarations. Thus, the Court strongly endorsed the importance of the consensual basis of the Optional Clause system in the Rights of Passage Case when it said that deposit of a state’s Optional Clause declaration brought into existence the ‘consensual bond, which is the basis of the Optional clause’.[90]
On the other hand, the Court held that that bond, or at least those aspects of it comprised in the deposit of declarations, were not governed by the régime of the VCLT. The principles of treaty law contained in that convention, and generally, were applicable to the Optional Clause system, and Optional Clause declarations, if at all ‘only by analogy’. It is not clear, however, what this term implies, or to what extent this analogy is applicable. States, at least, appear to have a somewhat selective approach to particular provisions of the 1969 Vienna Convention in the context of the declarations. For example, Nigeria pleaded the applicability of Article 78 paragraph (c), but not of Articles 16–24 of the 1969 VCLT.[91] This case evidenced the lack of agreement as to the understanding of the fundamental notions, procedural and substantive, of the Optional Clause system. Such procedural issues as the legal character of the notification by the Secretary-General and the time when the Optional Clause declaration takes effect remain unsolved. Procedural issues in turn have an effect on substantive ones such as the role of good faith and the rights and obligations of states-participants in the Optional Clause system.
While the Bakassi Peninsula Case, so far as relevant to the present essay, largely involved consideration, and in the event reaffirmation, of the principles in the Rights of Passage Case, the Fisheries Jurisdiction Case involved consideration and reaffirmation of the principles in relation to the interpretation of Optional Clause declarations which had been formulated in the Anglo-Iranian Oil Company Case.[93]
The dispute arose in relation to the 1994 amendment of the Canadian Coastal Fisheries Act, amendments to the regulations implementing the Act and to an incident (which occurred in implementation of this Act).[94] This incident, which took place on 9 March 1995, involved the pursuit, boarding and seizure on the high seas of the Spanish fishing vessel the Estai.
Both states had accepted the compulsory jurisdiction of the Court. Canada originally accepted compulsory jurisdiction of the Court in 1985. The Bill C–29 amended Coastal Fisheries Protection Act with the purpose of preventing foreign vessels from fishing straddling stocks in the regulatory area of the Northwest Atlantic Fisheries Organisation (NAFO). This area stretches beyond the Canadian Exclusive Economic Zone. On the same day the Bill was adopted, Canada, filed a new Optional Clause Declaration, which included a new condition or ‘reservation’, specifically aimed at the exclusion from its acceptance of the jurisdiction of the Court of disputes which might arise in relation to fishery management measures taken by Canada pursuant to the amended Coastal Fisheries Act. The relevant parts of the Canadian Declaration read now as follows:
(2) …the Government of Canada
accepts as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction 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 acceptance, over all disputes arising after the present declaration with regard to situations or facts subsequent to this declaration, other than… (d) [the new reservation] disputes arising out or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined by Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.
Following the Estai incident, on 28 March 1994, Spain brought the case before the Court. Spain raised the following points: that the legislation of Canada, in so far as it claims to exercise a jurisdiction over ships flying a foreign flag on the high seas, outside the exclusive economic zone of Canada, is not opposable to Spain; that Canada is bound to refrain from any repetition of the acts complained of, and to offer to Spain the reparation that is due, in the form of an indemnity the amount of which must cover all the damages and injuries occasioned; and that the boarding on the high seas of the Spanish ship and the measures of coercion and the exercise of jurisdiction over the ship and over its captain constitute a concrete violation of principles and norms of international law.[95] The case as a whole concerned a large number of international law issues. In this essay, however, the point which will be discussed is that of jurisdiction.
The heart of the matter of jurisdictional problems in this case was the interpretation of the new sub-paragraph (d) of the declaration of Canada. Spain claimed that the reservation was invalid or inoperative due to its incompatibility with the Statute of the Court, the Charter of the United Nations and with international law.[96] Spain further asserted that reservations to Optional Clause declarations should not be interpreted in such a manner as to allow the reserving state ‘to undermine the system of compulsory jurisdiction’.[97] Spain also advocated the application of the principle of effectiveness to the interpretation of reservations. Reservations should be interpreted by reference to the object and purpose of the declaration, which was acceptance of the compulsory jurisdiction of the Court. Further, Spain claimed that though it did not support a ‘restrictive interpretation’ of Optional Clause declarations, it was a proponent of the most limited scope permitted in the context of the general rules laid down by Article 31 of the 1969 VCLT.[98] As to the other rules of interpretation, Spain was in favour of the rule contra proferentem. This rule is that an ambiguous text must be construed against the party who drafted it. In the view of Spain, this manner of interpretation was of particular importance in relation to unilateral instruments such as Optional Clause declarations and reservations to them. Spain finally claimed that a reservation to an Optional Clause declaration must be interpreted according to the Statute of the Court, the Charter of the United Nations and general international law.[99] The rules of interpretation that were adhered to by Canada, were, in practice, those already laid down in the Anglo-Iranian Oil Company Case which relate in particular to the unilateral character of Optional Clause declarations and reservations to them, to the effect that they have to be interpreted in a natural way, in context and with particular regard for the intention of the declarant state.[100]
The Court made a number of very important statements concerning the legal character of Optional Clause declarations and of conditions or reservations attached to them. First, it said that a declaration of acceptance of the compulsory jurisdiction of the Court ‘whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty’.[101] This statement reaffirms the unilateral nature of Optional Clause declarations originally enunciated in the Phosphates in Morocco Case and, indeed, through addition of the words ‘act of State sovereignty’, in even stronger terms. The words ‘whether there are specified limits…’ etc are also significant in relation to the emphasis that the Court placed upon the freedom of states in relation, not only to whether they submit to the Courts jurisdiction within the Optional Clause system at all, but also with respect to the terms upon which they do so. In this respect, the Court had, in paragraph 44 of the Judgment, said:
It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: ‘This jurisdiction only exists within the limits within which it has been accepted’.[102]
In this respect, the Court further, later in the judgment in paragraph 54, quoted with approval the following passage from the Nicaragua Case, in which the Court had said:
Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration, a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations.
In relation to this aspect of the case, the Court further said:
Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court.[103]
On the face of it, these passages seem to take Optional Clause declarations very far from any normal form of treaty document. They are not to be interpreted in relation to anything resembling a multilateral treaty to which declarant states adhere, subject to reservations, by their Optional Clause declarations; or, secondly, in relation to any (in any but the most general sense) mutual intention as between declarant states. Notwithstanding this, the Court in fact continued the passage already quoted above from paragraph 46 by affirming once more the consensual aspect of the Optional Clause system. The Court said:
At the same time it [that is to say a state’s Optional Clause declaration] establishes a consensual bond and potential jurisdictional link with states which also submitted declarations and “makes a standing offer to other States party to the Statue which has not yet deposited a declaration of acceptance”.[104]
Thus the Court confirmed its findings from the Bakassi Peninsula Case. On the other hand, as in Bakassi, the Court emphasised that the régime relating to Optional Clause declarations is not identical with that of treaties under the Vienna Convention, and that the provisions of that convention ‘may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction’.[105]
Spain had put forward a number of particular bases according to which, it maintained, Optional Clause declarations and reservations to them should be interpreted. The main, general, decision of the Court in this respect was, rejecting these arguments of Spain, to reassert basically the principles of interpretation of Optional Clause declarations which the Court had enunciated in the Anglo-Iranian Oil Company Case.[106] The Court went on to say (also in accordance with the principles in Anglo-Iranian Oil Company) that the intention of a state may not only be deduced from the text of the relevant clause, but as well as from the context in which the clause is to be read, and from the examination of evidence connected with its preparation and the purposes intended to be served.[107]
The reference to the importance of the purposes intended to be served brings us to the issue of the principle of effectiveness, with respect to which the Judgment involves an important further affirmation of the unilateral and voluntary nature of Optional Clause declarations. It may be recalled that Spain had argued the applicability of the principle of effectiveness on the basis of the object and purpose of the declaration being acceptance of the compulsory jurisdiction of the Court. However, in this respect, the Court, having affirmed the validity of the principle of effectiveness in itself, rejected the particular object and purpose of Optional Clause declarations as put forward by Spain, saying that:
what is required in the first place for a reservation to a declaration made under Article 36, paragraph 2 of the Statute, is that it should be interpreted in a manner compatible with the effect sought by the reserving State.[108]
Lastly, under the present heading, it may be noted that in this Judgment, the Court clarified a very important principle of interpretation of reservations. It explained that:
There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with merits, after having established its jurisdiction and having heard full legal argument by both parties.[109]
Thus the Court rejected the contention of Spain that reservations have to be interpreted according to the principle of legality in the sense that a declarant state should be precluded from excepting from its submission to the jurisdiction of the Court cases concerning actions contrary to international law.
In the latter part of the Judgment, the Court had to apply these principles to interpret the actual words used in the Canadian reservation in order to determine whether or not acts of Canada which were the subject of the Spanish claim fell within the terms of that reservation and whether or not the Court had jurisdiction. The Court interpreted the following formulations contained in the reservation: ‘disputes arising out or concerning’; ‘conservation and management measures’; ‘vessels’ and ‘enforcement of such measures’.
As to the first formulation, the Court pointed out that not only was the dispute well within the scope of the reservation, contrary to Spain’s allegations, but, indeed, the reservation was much broader since:
the words of reservation exclude not only disputes whose immediate ‘subject-matter’ is the measures in question and their enforcement, but also those ‘concerning’ such measures and, more generally, those having their ‘origin’ in those measures (‘arising of’) — that is to say, those disputes which, in the absence of such measures, would not have come into being.[110]
With regard to the second formulation, the Court accorded to it a broad meaning. It did not endorse the Spanish interpretation that the word ‘measure’ did not cover the Canadian legislation and that the whole term ‘conservation and management measures’ could only refer to measures compatible with international law. The Court adhered to the theory presented by Canada that this term is a generic one, which is present in many international conventions to encompass statutes, regulation and administrative action.[111] The Court held that:
according to international law, in order for a measure to be characterised as a ‘conservation and management measure’, it is sufficient that its purpose is to conserve and manage living resources and that, to this end, it satisfies various technical requirements.[112]
Having examined several international conventions, the Court satisfied itself that the Canadian measures conform with the technical and scientific requirements prescribed for them. The question of their legality was one for the merits.[113] With regard to the term ‘vessels’, the Court adhered to the contention of Canada that its reservation covered all vessels not, as Spain asserted, only stateless vessels of those flying the flag of convenience.[114]
The remaining term concerned the use of force. It was the contention of Spain that the exercise of use of force towards Estai was illegal as it was contrary to the UN Charter and thus fell outside the term used in the reservation. The Court found that the use of force authorised by the Canadian legislation fell within the ‘ambit of what is commonly understood as enforcement of conservation and management measures and thus falls under the provisions of paragraph 2(d) of Canada’s declaration’.[115] The Court was of the view that the procedures for enforcement were ‘contained within the concept of enforcement of conservation and management measures according to a ‘natural and reasonable’ interpretation of this concept’.[116]
As to the assertion of Spain that the reservation was of the ‘automatic’ legal character, and therefore not in conformity with Article 36 paragraph 1 of the ICJ Statute, the Court asserted its right to interpret the text of the reservation and consequently its jurisdiction in this case.[117] Finally, taking into account the above considerations, the Court concluded that dispute was within the terms of reservation, thus the Court did not have jurisdiction in this case.[118]
The Judgment of the Court resulted in many dissenting opinions.[119] The main disagreement was with the decision of the Court that the issue of the legality of the actions of Canada was a matter to be considered as part of the merits, and not an issue of jurisdiction. Thus, according to the dissenting judges, the Court had to decide the issue of Canada’s alleged violations of international law before it decided on its jurisdiction.[120]
The Fisheries Jurisdiction Case is yet another example of the difficulties that are faced by states and the Court itself in attempting to find a uniform understanding of legal (and extra-legal) aspects of the declarations and reservations within the Optional Clause system. This case, however, further developed the principle of interpretation of declarations and reservations. First of all, they have to be treated as one unity, in accordance with the principle of integration.[121] Further, both declarations and reservations must be interpreted in their ordinary meaning (‘natural and reasonable’). Owing, however, to their special character as unilateral acts, the intention of states must be taken into account and the relevant circumstances under which they were formulated taken into consideration.
The Court accepted the possibility of application of 1969 VCLT principles to declarations, but only by way of analogy, and only to the extent to which they were compatible with the sui generis character of Optional Clause declarations. Most importantly, however, the Court made it clear that in order to ascertain its jurisdiction, consent to jurisdiction, and not the legality of the subject matter of a particular reservation, is what matters. As the Court stated in the Judgment:
The Court has already indicated that there is no rule of interpretation which requires that reservation be interpreted so to cover only acts compatible with international law. [T]his is to confuse the legality of the acts with consent to jurisdiction…[122]
As evidenced by the two cases under consideration, the main issue that continues to make the determination of the legal character of Optional Clause declarations so elusive is that of their relationship with treaties. As pointed out elsewhere in this essay, neither the Court nor international lawyers have yet produced a clear-cut and uniform definition of what an Optional Clause declaration is and how it relates to treaties. Thus the Fisheries Jurisdiction Case stated the unilateral nature of Optional Clause declarations — and the absolute freedom of states to define the parameters of their acceptance of the jurisdiction of the Court within the Optional Clause system — more strongly then ever, while still putting forward the consensual relationship to which they give rise. At the same time, the Court again stated that, consensual or not, the Optional Clause system does not fall directly under the régime of the VCLT, the provisions of which may be applicable in relation to Optional Clause declarations, if at all, only by analogy, and only to the extent compatible with their unilateral character.
Faced with this ambiguity in relation to the definition of the legal characteristics of the Optional Clause system generally, and of Optional Clause declarations in particular, it is legitimate to look at the Court’s decisions in relation to the interpretation of Optional Clause declarations and to compare these with the principles of interpretation of normal treaty documents as a key to their legal character. In this respect, one may say of the canons, or rules, of interpretation relating to normal treaty documents, and which go beyond the text of the treaty documents themselves, that, broadly speaking, they exist for the purposes of establishing the terms of the treaty as it may be deemed to have been mutually agreed; ‘deemed to have been’ because, in cases of dispute, the position almost by definition is that there was no real accord as to the terms of the treaty and the Court has in effect to some extent to construct them itself. The result of this process will not necessarily, or indeed, normally embody the actual subjective intentions of both parties, and may well actually embody the subjective intentions of neither, or none, of them. The position adopted by the Court in relation to Optional Clause declarations is very different. Here, in perhaps the most stark expression of the principle involved, the Court (in a passage which has been quoted above, but which bears repetition) said, in the Fisheries Jurisdiction Case:
what is required in the first place for a reservation to a declaration made under Article 36, paragraph 2 of the Statute, is that it should be interpreted in a manner compatible with the effect sought by the reserving State.[123]
One aspect of the distinction is, of course, that, unlike treaties, Optional Clause declarations are not the result of negotiations. But it is suggested that the distinction actually goes beyond, or deeper, than this. The question that seems to arise quite forcefully is: if Optional Clause declarations are treaty documents in any sense at all, what kind of treaty document are they? One possibility might have been that they are at least analogous to documents of adherence to a multilateral convention. But that interpretation, which might have been possible on the basis of Article 36 of the Statute as originally conceived (and which has not been without support subsequently, for instance, among some of the dissenting judges in the Anglo-Iranian Oil Company Case), really ceased to be tenable at all when, as developed in practice and endorsed in the Court’s jurisprudence, states were allowed total latitude in the imposition of conditions, limitations or ‘reservations’ upon their acceptance of the Court’s jurisdiction within the Optional Clause system. In the absence of that latitude, that is to say, had the possibility for states to make reservations been as restrictive as appears to have been intended by the original drafters of the statute, there would have been a common régime of submission to the jurisdiction of the Court within the system to which it could have been said states were adhering by deposit of their Optional Clause declarations; and the interpretation of those declarations would have been made by reference to that common régime. In that case, the application of the principle of effectiveness put forward by Spain in the Fisheries Jurisdiction case might have been valid. But of course, it was specifically in rejection of that application that the Court made the statement as to the effect to be achieved in interpreting an Optional Clause declaration which is re-quoted above. If, accepting that there is no analogy with a multilateral convention, the nature of the consensual relation between declarant states within the Optional Clause system is bilateral, one is still left with a problem as to what kind of treaty document, in relation to that bilateral relationship, an Optional Clause declaration is. The Court has, on a number of occasions (Rights of Passage Case, Bakassi Peninsula Case and Fisheries Jurisdiction Case) used the concept of offer and acceptance as illustrating the nature of Optional Clause declarations. It is at least open to question how valid this illustration is. An offer document, whether addressed to a particular party or to the world at large is intended to directly engage the mind of another party who accepts it; and an acceptance is an acceptance of one particular offer. And the two together, forming a contract, will in general be interpreted or construed together as a whole (in accordance with the principle of integration) to arrive at the terms of the contract between the parties. Of course, this is not at all the case with Optional Clause declarations. Though an Optional Clause declaration may, of course, be deposited with a particular party, or dispute, in mind (this indeed was the case in connection with Cameroon’s Optional Clause declaration which was the subject matter of the Bakassi Peninsula Case), this is not generally the case, and in no case can an Optional Clause declaration really be said to be intended to engage directly the mind of any counter party, with a view to obtaining an acceptance of that declaration. The fact is that, the more one looks at it, the more tenuous the connection between Optional Clause declarations and the law relating to treaties seems to become.
This is a point which was taken up by Rosenne. According to him, reliance on principles of general international law in relation to Optional Clause declarations is only relevant in the event of a state’s amendment or withdrawal of its declaration when there is no specified time limit on the declaration, nor express reservation providing for withdrawal.[124] He further observes that the problem which arises is to what extent the law of treaties fills the lacuna in respect of those aspects of unilateral declarations which have not yet been covered by relevant practice in the system of compulsory jurisdiction. To this effect the 1969 VCLT comes into the picture. First of all, a state party to the Optional Clause system has bound itself by an obligation which not unlike other international obligations must be interpreted and implemented in good faith. This obligation, however, lacks precision and works only in relation to other states which accepted the same obligation. The scope of this obligation is defined by the principle of reciprocity.[125] This approach was endorsed by the Court which in the Nicaragua Case said as follows:
In fact, the declaration, even though they are unilateral acts, establish a series of a bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. In the establishment of this network of engagements, which constitute the Optional-Clause system, the principle of good faith plays an important role.[126]
Rosenne further explains the substantive differences between treaties and unilateral declarations. According to him, it is not just the unilateral character of declarations, since, ‘interlocked unilateral acts undoubtedly can constitute a form of international treaty’.[127] Rather, the difference is to be found in the notion of the function of reservation to treaties which are entirely different from the functions of reservation to Optional Clause declarations; and in the fact that declarations may be modified or terminated unilaterally. The first of these two points is underlined by the description of the function of ‘reservations’ to Optional Clause declarations contained in the Judgment in the Fisheries Jurisdiction Case, which stated:
Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court.[128]
Having scrutinised all legal characteristics of compulsory jurisdiction, Rosenne came to the conclusion ‘that the true treaty element is provided only by the integrated Charter and Statute’. That combined instrument establishes a system available on a voluntary basis to all states parties to the Statute. That system contains three elements common to all parties to the Statute, regardless of whether they have accepted the compulsory jurisdiction, namely: (a) recognition of the power of the Court to settle any matter of its own jurisdiction; (b) recognition of the binding force and finality of the judgments by the Court; and (c) acknowledgment of the obligation of compliance with the decisions of the Court deriving from Article 94 of the Charter and of the powers of the Security Council relating to that.[129] According to Rosenne, by submitting an Optional Clause declaration, a state makes a general offer to other states with similar declarations, on terms which coincide. But this declaration is not accepted by any other state until that state relies on it in a concrete case; ‘It is only then that latent obligations is perfected’.[130]
Undoubtedly, the transaction between states under the Optional Clause system is unique. It is, as Rosenne warns, unwise and incautious to attempt to apply the principles of the law of treaties en bloc to it.[131] He further accepts the view, expressed as well by Waldock and Jennings, that the system of compulsory jurisdiction is sui generis and that obligations which flow from it are also sui generis, thus should not be assimilated with the type of obligations which is regulated by the law of treaties since ‘it is not on all fours with them’.[132] This ultimately is the view also taken by Elias and Lim, when they said at the conclusion of the consideration of the analogy between Optional Clause declarations and the law of treaties in relation to the dispute in the Bakassi Peninsula Case:
It is submitted that the analogy with treaties is of very limited utility. Declarations under the Optional Clause are not treaties and the analogy is unreliable in the context of jurisdictional skirmishes of the sort herein encountered.[133]
The problem is that, with the principles of interpretation as developed in relation to treaties, and adopted by the 1969 VCLT being applicable to Optional Clause declarations only to a limited extent, and being subject to being overruled by other principles stemming from the unique character of undertakings within Optional Clause systems (in particular the unilateral and voluntary nature of Optional Clause declarations), the way is open for case-by-case decision-making which does not contribute to the stability of international transactions. Alternatively, the Court will fall back on its own jurisprudence (such as the Rights of Passage Case), which will cause states to claim that the Court does not take into consideration the changes in international law during the passage of time, and in some cases, as in the Bakassi Peninsula Case, a feeling of injustice done to the parties to the dispute.
The Fisheries Jurisdiction Case calls for one more comment concerning the refusal of the Court to interpret the reservation in the light of the legality in international law of the matters which the reservation sought to exclude from Canada’s submission to the jurisdiction of the Court. Although it is understandable that certain judges expressed concern as to the content of the reservation, it would be difficult to reconcile the Court’s scrutiny as to the legality of certain reservations with the overriding principle of the consent of states to the Court’s jurisdiction. One has to agree with the Court’s judgment when it said that:
in point of fact, reservations from the Court’s jurisdiction may be made by States for a variety of reasons; sometimes precisely because they feel vulnerable about the legality of their position or policy. Nowhere in the Court’s case-law it has been suggested that interpretation in accordance with the legality under international law of the matters exempted from jurisdiction of the Court is a rule that governs the interpretation of such reservations.[134]
Both these cases clearly indicate that the legal character of declarations and the canons of their interpretation have retained a good deal of their mystique. Thus, this results in the situation whereby:
a substantial proportion of the Court’s hearings and judgments were directed not towards the substantive issues of international law at the heart of a case, but at issues concerning its own jurisdiction. With declining emphasis on the Optional clause declaration and the increased use of ad hoc referrals to the Court, this necessary preoccupation with jurisdictional issues is receding somewhat —another healthy trend.[135]
Judge Higgins, however, further observes, rightly that:
At the same time, to any international lawyer, some of the jurisdictional issues are of the keenest interest and make absorbing study…
The Optional Clause system certainly belongs to this category.
CASES
Aegean Sea Continental Shelf Case (Greece v Turkey) (Preliminary Objections) [1978] ICJ Rep 3 29, 30
Anglo-Iranian Oil Company Case [1952] ICJ Rep 93 4, 6, 14, 16, 25, 27, 29, 34
Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction – Second Phase) [1995] ICJ Rep 6 35
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction of the Court and Admissibility of the Application) [1984] ICJ Rep 392 10, 11, 12, 18, 21, 23, 28, 35
Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v India) [2000] ICJ 6
Case Concerning the Land and Maritime Boundary (Cameroon v Nigeria) [1998] ICJ 275 1, 2, 12, 14, 17, 25, 29, 34, 36, 37
Certain Norwegian Loans Case (France v Norway) [1957] ICJ Rep 23 23
Electricity Company of Sofia Case [1939] PCIJ (ser A/B), No 77 4
Fisheries Jurisdiction Case (Spain v Canada) [1998] ICJ 453 1, 26
Nuclear Tests Case [1973] ICJ Rep 267 11
Phosphates in Morocco Case [1938] PCIJ (ser A/B), No 74 4, 5, 15, 28
Rights of Passage over Indian Territory Case (Portugal v India) (Preliminary Objections) [1957] ICJ Rep 125 2, 7, 12, 13, 14, 18, 19, 23, 24, 25, 34, 37
Temple of Preah Vihear Case (Cambodia and Thailand) (Merits) [1962] ICJ Rep 6 18
STATUTES
Canadian Coastal Fisheries Act 23
Canadian Coastal Fisheries Protection Act 23
OTHER AUTHORITIES
United Nations Charter 1945 2, 3, 24, 28, 32
Vienna Convention on the Law of Treaties 1969 10, 18, 22, 24, 29, 30, 31, 33
[*] Queen Mary and Westfield College, University of London.
[1] Judgment, 11 June 1998, text: General List fn 94, on the ICJ’s website: <http://www.icj-cij.org/icjwww/idocket/icn/icnjudgment/icn_ijudgment_980611_frame.htm> .
[2] Judgment, Jurisdiction of the Court, 4 December 1998, text: General List, on the ICJ’s website: <http://www.icj-cij.org/icjwww/idocket/iec/iecframe.htm> .
[3] See, eg, S Oda, ‘Reservations in the Declarations of Acceptance of the Optional Clause and the Period of Validity of those Declarations: The Effect of the Shultz Letter’ (1988) 19 British Yearbook of International Law 1; S Oda, ‘The Compulsory Jurisdiction of the International Court of Justice: A Myth?’ (2000) 49 International and Comparative Law Quarterly 251; L Lloyd, ‘A Springboard for the Future: A Historical Examination of Britain’s Role in Shaping of the Optional Clause of the Permanent Court of Justice’ (1985) 79 American Journal of International Law 28; N Kebbon, ‘The World Court Compulsory Jurisdiction under the Optional Clause’ (1989) 58 Nordic Journal of International Law 257; E J de Arechaga, ‘The Compulsory Jurisdiction of the International Court of Justice under the Pact of Bogota’ in Y Dinstein and M Tabory (eds), International Law in a Time of Perplexity, Essays in Honour of Shabtai Rosenne (1989) 355; C H M Waldock, ‘Decline of the Optional Clause’ (1955–56) 32 British Yearbook of International Law 244; J G Merrills, ‘The Optional Clause Today’ (1980) 50 British Yearbook of International Law 87; J G Merrills, ‘The Optional Clause Revisited’ (1993) 64 British Yearbook of International Law 197; D W Greig, ‘Nicaragua and the United States: Confrontation Over the Jurisdiction of the International Court’ (1991) British Yearbook of International Law 119.
[4] [1957] ICJ Rep 125.
[5] [1952] ICJ Rep 93.
[6] [1938] PCIJ (ser A/B), No 74, 22.
[7] [1939] PCIJ (ser A/B), No 77.
[8] See Anzilloti, 87; Urrutia, 193; and Hudson, who said that by acceptance of the compulsory jurisdiction Belgium and Bulgaria were bound per se, 121.
[9] For useful brief histories of the Optional Clause system, see N Kebbon, above n 3, 257; L Gross, ‘Compulsory Jurisdiction under the Optional Clause: History and Practice’ in L F Damrosch (ed), The International Court of Justice at a Crossroads (1987) 19.
[10] Sir Gerald Fitzmaurice, ‘Enlargement of the Contentious Jurisdiction of the Court’ in L Gross (ed), The Future of the International Court of Justice (1976) Vol II, 461, 475.
[11] In fact, recently, the opportunity was taken to challenge the freedom of states to introduce reservations outside the categories contained in art 36(3) of the Statute, when, in the Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v India (Jurisdiction of the Court) (Judgment to be found on the ICJ website: <http://www.icj-cij.org/icjwww/ipresscom/IPress2000/ipresscom2000-19bis_ipi_20000621.htm> ). Pakistan there contended that a so-called ‘Commonwealth reservation’, which was not within the categories of reservation set out in art 36(3), was ‘extra-statutory’ and therefore not opposable to it by India. The Court, in its judgement, rejected this argument, re-affirming in strong terms the complete freedom of states in respect of the types of reservations that can be made to Optional Clause declarations it observed (para 36 of the Judgment) that ‘paragraph 3 of Article 36 of [the Court’s] Statute has never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made’; and re-affirming (para 38) its judgment in the Fisheries Jurisdiction Case, where it was said that art 36(2) of the Statute enabled states to ‘define the parameters’ of their acceptance of the Courts jurisdiction [1998] ICJ Rep 453 [44].
[13] Ibid 116.
[14] Ibid 142.
[15] Rights of Passage over Indian Territory Case (Portugal v India) Preliminary Objections
[1957] ICJ Rep 125 (hereinafter the Rights of Passage Case) 158.
[17] Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (1986) Vol I, 366.
[18] (1953) 2 Yearbook of the International Law Commission 101.
[19] (1959) 1 Yearbook of the International Law Commission 54.
[20] (1959) 2 Yearbook of the International Law Commission 92.
[22] Ibid 364.
[23] Ibid 365.
[24] Ibid 365, fn 2
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction of the Court and Admissibility of the Application) [1984] ICJ Rep 392, 546 (hereinafter the Nicaragua Case).
[31] Above n 29, 418. In this case the Court fell back on the statements concerning good faith made in the Nuclear Tests Case [1974] ICJ Rep 267, 268. In this case the Court made an exhaustive statement as to the legal character of unilateral declarations and the principle of good faith: ‘[i]t is well recognised that declarations made by the way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.’ The Court went on to say: ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.’
[34] See also Sir Humphrey Waldock, ‘[t]aken as a whole, States practice under the Optional Clause declaration, and especially the modern trend toward Declarations terminable upon notice, seem only to reinforce the clear conclusion to be drawn from the treaties of arbitration, conciliation and judicial settlement, that these treaties are regarded as essentially of terminable character’ (1963) 2 Yearbook of the International Law Commission 69. See also the same view Schwebel J, dissenting opinion in the Nicaragua Case above n 29, 621.
[36] Rights of Passage over Indian Territory, Preliminary Objections, Judgment [1957] ICJ Rep 6, 125.
[37 ] Article 36(4) of the Statute: ‘Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.’
[38] The Court said as follows: ‘It has been contended … that Article 36 requires not only the deposit of the Declaration of Acceptance with the Secretary-General but the transmission by the Secretary-General of a copy of the Declaration to the parties to the Statute, the Declaration of Acceptance does not become effective until the latter obligation has been discharged. However, it is only the first of these requirements that concerns the State making the Declaration. The latter is not concerned with the duty of the Secretary-General or the manner of fulfilment. The legal effect of a Declaration does not depend upon a subsequent action or inaction of the Secretary-General. Moreover, unlike some other instruments, Article 36 provides for no additional requirement, for instance, that the information by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional clause system. The Court cannot read into the Optional clause any requirement of that nature.’ Rights of Passage Case (Preliminary Objections), above n 36, 147. The Court further ascertained that any changes to the Declarations must be notified to the parties to the Statue in the same manner, ibid 143.
[39] It said as follows: ‘By the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and compulsory jurisdiction of the Court resulting therefrom are established “ipso facto and without special agreement”. By the fact of the making of the Declaration. Accordingly, every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional clause in relation to a new signatory as the result of the deposit by that Signatory of a Declaration of Acceptance. A State accepting the jurisdiction of the Court must accept that an Application may be filed against it by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. For it is on that day that the consensual bond, which is the basis of the Optional clause, comes into being between the States concerned.’ Above n 36, 145–146.
[40] See the passage above quoted in n 38.
[44] Ibid.
[45] Ibid 103.
[46] He said as follows: ‘I am unable to accept the contention that the principles of international law which govern the interpretation of treaties cannot be applied to the Persian Declaration, because it is unilateral. Admittedly it was drafted unilaterally. On the other hand, it was related, in express terms, to Article 36 of the Statute, and to the declarations of other States which have already deposited, or which might in the future deposit, reciprocal declarations. It was intended to establish legal relationship with such States, consensual in their character, within the régime established by the provision of Article 36’ above n 5, 142.
[47] S Rosenne, The Law and Practice of the International Court of Justice Jurisdiction (1997) Vol II, 809–815.
[48] Ibid 810.
[49] Ibid 811.
[50] Above n 47, 811–812; G Fitzmaurice, ‘Questions of Jurisdiction, Competence and Procedure, 1951–1954’ in The Law and Procedure of the International Court of Justice (1986) Vol II, 505.
[52] Ibid 813–814.
[55] Ibid [18].
[56] Ibid [25].
[57] [1962] ICJ Rep 6.
[58] Dissenting opinion of Vice-President Weeramantry <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> .
[59] Dissenting opinion of Judge Koroma, <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> .
[60] [1957] ICJ Rep 146–7.
[61] Verbatim Record of the Proceedings, text on <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> .
[63] Article 78: ‘Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall: … (c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary.’
[65] Ibid.
[67] Article 16: ‘[u]nless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: … (b) their deposit with depositary’. Article 24 further provides that ‘[w]hen a consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides’.
[69] (1996) 2 Yearbook of the International Law Commission 201, quoted in the Judgment in the Bakassi Peninsula Case [31].
[70] See references ibid.
[74] O Elias and C Lim, ‘The Rights of Passage Doctrine Revisited: An Opportunity Missed’ (1999) 12 Leiden Journal of International Law 231, 235–238.
[75] Ibid 237–238, fn 59.
[76] Ibid 238.
[78] See, Fitzmaurice, above n 50, 609–618; H Thirlway, ‘The Law and Procedure of the International Court of Justice, 1960–1989’, (1990) British Yearbook of International Law 7.
[80] Eg, dissenting opinion of Judge ad hoc Ajibola, <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> .
[81] Certain Norwegian Loans Case (France v Norway) [1957] ICJ Rep 23: ‘[r]eciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other party has expressed in its Declaration… Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely on the reservation laid down by the other Party. There the effect of reciprocity ends.’
[82 ] Above n 29, 419 [62]: ‘[t]he notion of reciprocity is concerned with scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. It appears clearly that reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration, whatever its scope, limitations or conditions.’ Above n 47, 759–766.
[83] Above n 1 [41]. Nigeria recognised compulsory jurisdiction of the Court ‘as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to say, on the sole condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36(2), of the Statute of the Court’.
[86] Ibid [45].
[88] Judge Koroma, dissenting opinion [27].
[89] Judge Weeramantry, dissenting opinion [21].
[90] For quotation of the full passage and reference, see above n 38.
[93] See, eg, B Kwiatkowska, ‘Fisheries Jurisdiction (Spain v Canada)’ (1999) 93 American Journal of International Law 502; A P Linares, ‘The ICJ Canada-Spain Fishing Dispute’ (1999) 8 Review of European Community and International Environmental Law 215; L de la Fayette, ‘The Fisheries Jurisdiction Case (Spain v Canada), Judgment on Jurisdiction of 4 December 1998’ (1999) 48 International and Comparative Law Quarterly 664.
[94] On 12 May 1994, following the adoption of Bill C–8, Canada also amended Section 25 of its Criminal Code relating to the use of force by police officers and other peace officers enforcing the law. This section applied as well for fisheries protection officers, since their duties incidentally included those of peace officers. On 25 May 1994, the Coastal Fisheries Protection Regulations were amended. They were further amended on 3 March 1994.
[96] Ibid [41].
[97] Ibid [43].
[98] Ibid.
[99] Ibid.
[100] Ibid.
[102] Phosphates in Morocco Judgment above n 6, 23.
[104] Bakassi Peninsula Case, Judgment see above n 1 [25].
[105] (Italics added) above n 1 [46].
[107] Ibid. It may be noted that in support of this, the Court cited its jurisprudence relating to law of treaties in Aegean Sea Continental Shelf Case, see [1978] ICJ Rep 3 [69].
[109] Ibid [55].
[110] Ibid [62]. The Court said that this reservation was even broader that that of Greece attached to accession to the general Act of 1928, which related to disputes relating to the territorial status of Greece, Aegean Sea Continental Shelf Case, above n 107, 34.
[112] Ibid [70].
[113] Ibid [64]–[74].
[114] Ibid [75]–[77].
[115] Ibid [84].
[116] Ibid.
[118] Ibid [87].
[119] The following Judges attached dissenting opinions: Vereshchetin; Vice-President Weeramantry; Ranjeva; Bedjaoui; and the Judge ad hoc Torres-Bernardes.
[120] Eg, Judge Vereshchetin said that: ‘[f]or the Court, the question of legality cannot be totally irrelevant to ‘natural and reasonable way of reading of the text’, … every international document must be construed by the Court in the light of international law’, <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> [13]; and Judge Weeramantry said that: ‘[i]t may indeed be argued, on the contrary, that the preservation of legality within the system would strengthen rather that undermine its integrity. I do not think it is open to the Court, if violation of a bedrock principle of international law is brought to its attention, to pass this illegality on the basis that it is subsumed within the reservation clause. Such an approach could well weaken not only the authority of the Court, but also the integrity of the entire system of international law, which is a seamless web, and cannot be applied in bits and pieces. It is within this seamless fabric of international law that the entire Optional Clause declaration system functions, and that consent to the Court’s jurisdiction must be construed’ <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> [54]. See also Separate Opinion of Judge Kooijmans, who although voting for the judgment did it with ‘dismay’. <http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm> [20].
[123] Ibid [52].
[125] Ibid 823.
[127] Above n 47, 825, citing Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) Case [1994] ICJ Rep 6, 130 [23].
[130] Ibid 828.
[131] Ibid 830: ‘This unique bond existing between two states engaged upon litigation when both have or may be deemed to have accepted the compulsory jurisdiction, and the extreme difficulty of pinning down exactly when this bond is, who are the parties, and when it arose … otherwise that in the context of an actual case, impose maximum of caution before applying en bloc the general law of international treaties to that part of the transaction which supplies the consensual basis of the jurisdiction. The significance of dicta of the Court drawing attention to the unilateral character of a declaration accepting the compulsory jurisdiction and stressing that such a text is not a treaty resulting from negotiations between two or more states lies precisely in their warning not to be too quick in applying the general law of treaties to a declaration accepting the compulsory jurisdiction.’
[132] Ibid 831.
[135] R Higgins, Problems and Process. International Law and How We Use It (1994) 191.
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