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SOME OBSERVATIONS ON THE COMPULSORY JURISDIC-
TION OF THE INTERNATIONAL COURT OF JUSTICE
By DR. EDVARD HAMBRO
It might be claimed in strict law and logic that this paragraph is not
absolutely necessary. If the Court has jurisdiction in all cases which the
parties refer to it and also in all matters provided for in treaties and con-
ventions in force, it stands to reason that states may at any time confer
jurisdiction upon the Court in this way. However, this paragraph has a
great historic and ideological value, as will be pointed out presently. It
creates the so-called 'Optional Clause'. Although this term has been given
currency for many years and is still being used, 4 it is not proposed to use
it in the present article. 5 The term, which historically 6 is quite under-
standable, has no particular meaning under the new Statute. The declara-
7
tion whereby states accept the compulsory jurisdiction is not a 'clause',
' Reports of the InternationalCourt of Justice (hereinafter referred to as I.C.J. Reports), 1947-8,
p. 26.
2 Vice-President Basdevant and Judges Alvarez, De Visscher, Winiarski, Badawi Pasha,
Zori&i6, and Krylov.
3 L.CJ. Reports, 1947-8, pp. 31-2.
4 See, for example, Vulcan, 'La Clause facultative', in Acta Scandinavica, 18 (1947-8),
pp. 30-55.
I It has not been used in the Year Books of the InternationalCourt of Justice, 1947-9.
6 See Hudson, The Permanent Court of InternationalJustice, 1920-1942 (1943), p. 451.,
7 It is not intended to examine here whether the word 'clause' has any definite meaning in
international law.
OF THE INTERNATIONAL COURT OF JUSTICE 135
but a special international instrument. Furthermore, it seems strange to
refer to such acceptance as optional as if the optional character of under-
taking this particular obligation were different from other instruments
whereby states accept international obligations.
'In a few cases, however, the declaration is made without the use of any such formula,
or expressly "without condition". From a legal point the formula seems to serve no
purpose; all of the declarations contain the limitation ipso facto, and this is true even
though they are said to be "without condition".'
This categorical opinion, coming as it does from a writer of high authority,
cannot lightly be set aside. It may be agreed that a declaration under
Article 36 and without any mention at all of reciprocity may still contain
this reservation since it forms part of Article 36. As will be seen later, this
is not quite certain. It is when the state makes it clear that the obligation is
assumed 'without condition' 6 that the doubts become serious. If a state
wishes to make its acceptance of the compulsory jurisdiction not subject
to any condition, why should it not be able to do so? Is there any rule of
international law preventing states from accepting far-reaching unilateral
obligations? They may thereby put themselves in a position of inequality
as regards other states. They may give up a fraction of their sovereignty.
They may consider it laudable for states to give up some of their sovereignty
in order to increase the scope of the compulsory jurisdiction of the Inter-
national Court of Justice.
The possibility of making declarations which are not based on reciprocity
See Hudson, op. cit., pp. 386-7. 2 P.C.I.J., Series E, No. 15, p. 49.
Ibid., No. 13, p. 71.
3 4 See A.J. 41 (947), p. 8.
' OP. Cit., pp. 451, 465.
6 The only state which has used this formula is, it is believed, Nicaragua (see I.C.J. Year
Book, 1946-7, p. 21o). This declaration, however, as will be seen later, is not a pure example
since it does not contain any reference to Art. 36 of the Statute.
OF THE INTERNATIONAL COURT OF JUSTICE 137
Later, the same question was debated at the San Francisco Con-
ference, where a special sub-committee 6 was appointed for the study of
League of Nations/P.C.I.J., Documents concerning action taken by the Council of the
League of Nations under Art. 14 of the Covenant and the adoption by the Assembly of
the Statute of the Permanent Court of International Justice, particularly pp. 44 ff. and 57.
2 For the history before the Second World War see Hudson, op. cit., pp. 383 if., and Statut
et Raglement de la Cour permanente de Justice internationale(I934), pp. 239-71.
3 See chap. ix of I.C.J. Year Books for bibliography. See also Hudson in A.Y. 41 (1947), and
Vulcan, op. cit.
4 For instances see U.N.C.I.O., vol. xiv, p. 300 (China), vol. xiii, p. 486 (France), ibid., p. 487
(New Zealand), and ibid., p. 489 (Venezuela).
5 Ibid., vol. xiv, pp. 667-8.
6 Ibid., vol. xiii, pp. 553 ff.
OF THE INTERNATIONAL COURT OF JUSTICE 120
compulsory or optional jurisdiction. The Sub-Committee reached the
conclusion that:
'The desire to establish compulsory jurisdiction for the Court prevailed among the
majority of the subcommittee. However, some of these delegates feared that insistence
upon the realization of that ideal would impair the possibility of obtaining general
accord to the Statute of the Court as well as to the Charter itself. It is in that spirit
that the majority of the subcommittee recommends the adoption of the solution
described above."
The Committee also adopted unanimously a resolution requesting the
states parties to the Statute to make declarations under Article 36 as soon
as possible. 2 In the course of the Conference at San Francisco the Plenary
Meeting of the Conference adopted this resolution, calling upon the
Members to accept the compulsory jurisdiction of the Court.3 It is useful
to keep in mind the history of this article in case doubts should arise in
applying or interpreting it. The aim of the provision is clearly to facilitate
the continual development of compulsory jurisdiction4
8. The next question which arises is that of the entry into force of these
declarations. 5 While this question has not been of any practical importance
in the past, it may easily become of importance for two reasons. First, it
may happen that the declarations are valid only for future disputes; and
secondly, they often contain a reservation as to the time for which they are
valid. It is clearly impossible to know when a declaration lapses if it is not
known when its validity begins. Certain states have expressly laid down a
particular date from which the declaration shall be valid.6 In this case no
doubt is possible. Other states7 make the matter equally clear by stipulating
that the obligation starts from the date of signature. Others, again, make
the deposit of the declaration the operative date. 8 Several states mention
the date of ratification,9 whereas others have made no ruling whatever.' 0
There seem to be two possible solutions in cases when nothing is stated
in the declaration itself. Either the declaration can enter into force the
moment it is signed or ratified, as the case may be, or it enters into force
Belgium (see LC.J. Year Book, 1947-8, p. 13 1); Canada (ibid., 1946-7, p. 208); Dominican
Republic (p. 2o8); France (p. 220).
2 Hudson, op. Cit., p. 452.
3 Brazil (LC.J. Year Book, 1947-8, P. 130); Honduras (P. 129); Pakistan (p. 13 1); Philippines
(p. 128); Paraguay (p. 127); Switzerland (p. 138); and United States of America (ibid., 1946-7,
p. 218).
4 It is not necessary to enter into a discussion here as to the effect of a declaration which, in
accordance with international law, might be valid although it is not delivered according to the
constitutional rules of the country concerned. The Permanent Court expressed an important
opinion on such a point in its Judgment in the Case concerning the Legal Status of South-Eastern
Greenland (P.C.L.., Series A/B, No. 53, P. 71).
s See Hudson, op. cit., p. 452.
6 Mexico (I.C.J. Year Book, 1947-8, p. 129); Netherlands (ibid., 1946-7, p. 217); Norway
(p. 219); Philippines and Turkey (ibid., 1947-8, p. 128).
7 Australia (ibid., 1946-7, p. 216); India (p. 213); New Zealand (p. 214); South Africa
(p. 215); Sweden (p. 220); United Kingdom (pp. 212 and 217); Bolivia (ibid., 1947-8,
p. 131).
8 Denmark (ibid., 1946-7, p. 219); Brazil (ibid., 1947-8, p. 130); and Honduras (p. 129).
Belgium (ibid., p. 131); France (ibid., 1946-7, p. 220).
8
t0 China (ibid., p. 21 ); Colombia (p. 212); Dominican Republic (p. 208); Guatemala (p. 219);
Haiti (p. 207); Nicaragua (p. 210); Panama (p. 207); Paraguay (p. zi); United States (p. 2x8);
Uruguay (p. 207); Pakistan (ibid., 1947-8, p. 132).
OF THE INTERNATIONAL COURT OF JUSTICE 141
the moment it has been deposited with the Secretary-General. The Per-
manent Court of International Justice has never been called upon to settle
the problem; but it may happen that the International Court of Justice
will have to decide this matter as well as all other matters concerning its
own jurisdiction. It seems natural that the declaration enters into force
the moment it has been signed or ratified. This, however, entails the danger
that the declaration may be valid without being known to anyone. It might
therefore be safer to accept the rule that it enters into force on the date it
is deposited with the Secretary-General.
It is laid down in paragraph 4 of Article 36 of the Statute that:
'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.'
It might consequently be argued that the deposit is a part of the legal act
and that the declaration is not complete without it., This line of argument
seems also to be supported by reference to Article 1O2 of the Charter of
the United Nations, which states in its second paragraph:
'2. No party to any such treaty or international agreement which has not been
registered in accordance with the provisions of paragraph i of this Article may invoke
that treaty or agreement before any organ of the United Nations.'
It is clear that these declarations fall within the term 'treaty' in this article ;z
and that the International Court of Justice is an organ of the United
Nations. It would then be natural to say that these declarations are valid
from the moment when they are deposited, and not before. It is believed
that these declarations, which are registered ex officio by the Secretariat
of the United Nations, will be registered at once so that there will be no
discrepancy between the date of deposit and the date of registration. It is
possible, however, that a declaration may be valid from the date of deposit,
although it cannot be invoked before it has been registered.
All these reservations are of the same kind, since they reserve the possi-
bility to choose other means of pacific settlement. Wide differences of
opinion are not likely to manifest themselves in the interpretation of such
reservations. Much more difficult are the questions which may arise if no
such reservation is made.
In the first instance, there arises the question as to what would be the
situation in the Security Council if there were no such reservation. Could
a state deny the competence of the Security Council to deal with a dispute
because it, as well as the other party, has accepted the compulsory jurisdic-
tion of the Court? The answer is clearly in the negative. The Security
Council has an overriding authority in case of 'any threat to the peace,
breach of the peace, or act of aggression', as is laid down in Article 39 of the
Charter. If there is no such threat to the peace, then the system of Chap-
ter VI of the Charter comes into operation.' The whole scheme of that
chapter is directed to permitting the parties themselves to find a peaceful
solution to their disputes. Article 36 of the Charter envisages compulsory
jurisdiction, inasmuch as its second and third paragraphs provide:
'2. The Security Council should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the parties.
'3. In making recommendations under this Article the Security Council should also
take into consideration that legal disputes should as a general rule be referred by the
parties to the International Court of Justice in accordance with the provisions of the
Statute of the Court.'
There are many other possible conflicts between recourse to the Inter-
national Court of Justice, on the one hand, and to other agencies for peace-
ful settlement, on the other. States may conclude special treaties concerning
pacific settlement of disputes both before and after having accepted the
compulsory jurisdiction of the International Court of Justice. The problem
would seem to be different in the two cases.
Possible conflicts between the compulsory jurisdiction of the Court and
' Pakistan (I.C.J. Year Book, 1947-8, p. 132) and United States (ibid., 1946-7, p. 218).
2 Ibid., p. 218.
I See Goodrich and Hambro, op. cit. (Revised Ed.), Comment on Chapter VI. See also
Eagleton, 'The Jurisdiction of the Security Council over Disputes', in A.J. 4o (1946), pp. 513 if.;
Goodrich, 'Pacific Settlement of Disputes', in American Political Science Review, 39 (1945);
and Kelsen, 'The Settlement of Disputes by the Security Council', in International Law Quarterly,
2 (1948), pp. 173 ff.
OF THE INTERNATIONAL COURT OF JUSTICE 147
other means of settlement adopted specifically by the same parties were
discussed exhaustively during the elaboration of the Charter of the Inter-
national Trade Organization,' but it may well be that too much importance
has been attributed to this problem. For after all, the acceptance of the
jurisdiction of the Court never compels two states to bring their disputes
before the Court. It only means that one party to a dispute cannot refuse
to appear before the Court if the other party desires to bring the matter
before it. The two states concerned can always agree on any other method
of peaceful settlement, or even not to attempt a settlement at all. Moreover,
it frequently happens that two states which have both accepted the juris-
diction of the Court nevertheless conclude a special agreement with a view
to defining the issues, instead of bringing the conflict before the Court by
unilateral application. Therefore the number of cases actually brought
before the Court in pursuance of a declaration under Article 36 of the
Statute are relatively few.2
It could, nevertheless, happen that a state which has accepted the com-
pulsory jurisdiction of the Court may later have agreed to other means of
settlement, but for certain reasons might prefer to bring a matter before
the Court. The other party having first accepted the jurisdiction of the
Court and later having concluded a treaty for other means of settlement,
might then refuse to appear before the Court on the ground that the later
special treaty had abrogated the former acceptance. Such conflicts ought
to be solved according to the general rules as to conflicts between treaties)
It might be said that the later treaty ought to prevail, since it might be
considered to have abrogated the former. It might also be said that the
special treaty in its particular domain abrogates the more general treaty.
On the other hand, it might be argued that the declarations filed under
Article 36 of the Statute in reality become a part of the treaty-law of the
United Nations, since the Statute of the Court is a part of the Charter. In
such a case, according to Article Io3, 4 the Charter should prevail.
There are also possibilities of conflict between declarations made under
Article 36 and previous treaties of a special nature. In such cases it would
be natural to say that the declarations under Article 36 abrogate the former
treaties. That problem did in fact arise under the r6gime of the Permanent
' See the following documents from the Interim Commission of the I.T.O.: Limited C.
I.C.I.T.O./EC.2/SC 1/3 ff. and 2/5 and 2/17.
2 See as to this Hudson, op. cit., pp. 477 ff. See also the list of cases brought before the Court
by special agreement and by application in the last Annual Report of the Permanent Court of
International Justice (P.C.LJ., Series E, No. 16, pp. 43 and 52).
1 Comment on this problem will be found in most general works on international law and in
all works on treaties. See also the bibliography by Pollux in this Year Book, 23 (1946), at p. 54,
n. 3. And see Guggenheim, Lehrbuch des Volkerrechts, vol. i (1948), pp. oi ff.
4 That article provides: 'In the event of a conflict between.the obligations of the Members of
the United Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.'
118 SOME OBSERVATIONS ON THE COMPULSORY JURISDICTION
Court., However, the judicial decisions are too few in number to render
possible a definite conclusion in this matter.
In regard to this aspect of the matter practice has been meagre, 4 and no
state has so far expressed a desire to intervene in a case before the Inter-
national Court of Justice.5 However, it seems clear that intervention may
enlarge the compulsory jurisdiction of the Court. If States A, B, and C,
for instance, are all parties to a multilateral convention, whereas only
States A and B have accepted the compulsory jurisdiction of the Court,
State C can intervene and thereby force A and B to plead against it although
these two states would otherwise not have been obliged to accept C as a
party before the Court.
I
BEFORE the passing of this Act, British nationality was based on the
common-law doctrine that (subject to certain exceptions) every person
born in the King's dominions (i.e. the United Kingdom, a Dominion of
the British Commonwealth of Nations, India, the British Colonies, but
not protectorates, protected states, or mandated territories) was a natural-
born British subject. This doctrine became embodied in the Act of 1914,
and was there 'embroidered' with other provisions, some already in exis-
tence in principle and some entirely new. These provisions laid down the
conditions on which persons born outside the King's dominions might
become natural-born British subjects, the rules regarding naturalization, the
status of married women and minor children, and the rules concerning
the loss of British nationality. The Act of 19I4 consolidated and amended
the provisions of earlier Acts, and was itself amended, on certain limited
though important points, by Acts of 1922, 1933, and 1943.' The Act of
1914 was divided into three parts. Parts I and III were intended to apply
to all territories then forming part of the British Empire; Part II could be
'adopted' by the Dominions. Most of the Dominions, however, enacted
their own version of the whole of the Act of 1914, but other Dominions
left Parts I and III of the Act as part of their own law, adding their own
legislation on naturalization. Since the legislation of the Dominions was
practically (mutatis mutandis) the same as the United Kingdom Act of
1914, these enactments, taken together, constituted, as it was intended
they should constitute, a 'common code' of British nationality for the
British Commonwealth of Nations, bound together by a common allegiance
of British subjects to a common Crown. It was a constitutional under-
standing that any amendments of this 'common code' should form the
subject of discussion amongst members of the Commonwealth so that its
standards of uniformity should be maintained.
As a result of the different demands of the various Parliaments of the
Commonwealth and of various other factors, it became impossible to main-
tain this uniformity. Divergencies had already begun to appear between
the laws of different members of the Commonwealth even before the out-
break of the Second World War, mainly in connexion with the rules relating
to the nationality of married women. The law of the United Kingdom
For a general survey of this legislation see the writer's British Nationality Law and Practice
(1947), Part II, chap. v.