Optional Clause of the Statute of the International Court of Justice - Essay Example

Introduction At the fore is a controversy between two sovereign s which requires the application of the Optional Clause of the Statute of the International Court of Justice (ICJ for brevity) vis-a-vis the Reciprocity principle of International Law. For several decades, the clause had been and still is a subject of debate among eminent jurists and scholars in the field of law. The instant case shall test once again, the feasibility of the Statute of the ICJ particularly the Optional Clause which allows a party to accept the jurisdiction of the Court ipso facto, subject only to any reservation it may incorporate along with its Declaration of Acceptance, to end or settle a dispute. Related jurisprudence shall be discussed and analyzed; explications will be given to the end that the instant controversy would have a viable solution for the benefit of both parties and to the members of the global community as a whole. However, before delving into the merits of the case, it is equally essential to determine a fortiori, the competence of the ICJ to take cognizance of the dispute, for the Court can only exercise its adjudicative powers if indeed it has jurisdiction over the parties and over the subject matter. When the court is devoid of jurisdiction, it follows as a matter of law that it has no competence to decide on any controversy brought before it. Hence, any discussion shall firstly focus on the question of jurisdiction. It is well to emphasize that the jurisdiction of the ICJ can only be invoked if the state-parties submit to its jurisdiction or when they have presented their Declaration of Acceptance to the jurisdiction of the Court through the Optional Clause of the Statute of the ICJ.1 That being stated, the assessment of the dispute is in order. Statement of the Controversy A presentation of the factual backdrop of the case is necessary and convenient to have a thorough understanding of the controversy to wit: State A is a coastal State. That State established a 12-mile territorial sea by national legislation. On 3 October 1990, a commercial vessel flying the flag of State B struck mines in the territorial sea of State A. The explosions caused damage to the vessels and loss of life. Holding that to be the responsibility of State A, the Government of State B commenced negotiations with State A but in vain. Thus, on 25 June 1991, State B submitted the dispute to the International Court of Justice (ICJ) based solely on Article 36 (2) of the Statute of the International Court of Justice. Thereupon the Government of B asked the ICJ to adjudicate to the effect that the Government of State A was internationally responsible for the consequences of the incident and it must make reparation or pay compensation. States A and B are both Parties to the Charter of the United Nations. State A accepted the optional clause of the Statute of the ICJ in 1986 (emphasis supplied). The Declaration of State A reads: 'I declare on behalf of the Government that State A recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to say, on condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36, paragraph 2, of the Statute of the Court, for a period of ten years from the date of the deposit of the instrument of ratification.' State B also accepted the optional clause of the Statute of the ICJ in 1987 (emphasis supplied). The Declaration of State B reads: 'I declare on behalf of the Government that I recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the Jurisdiction of the International Court of Justice, in conformity with Article 36, paragraph 2, of the Statute of the said Court, for all disputes which may arise in respect of facts or situations subsequent to the ratification of the present declaration, with the exception of those with regard to which the parties may have agreed or may agree to have recourse to another method of peaceful settlement. This declaration does not apply to differences relating to matters which are essentially within the domestic jurisdiction as determined by the Government of B. The present declaration shall continue in force until notice to the contrary is given by the Government of B.' (emphasis supplied). In this case, State A filed a Preliminary Objection to the effect that her Government was entitled, by virtue of the condition of reciprocity, to invoke the reservation relating to domestic jurisdiction contained in the Declaration of State B; and that this reservation excluded from the jurisdiction of the court the dispute which has been referred to it by the Application of the Government of State B since this dispute essentially concerns domestic jurisdiction of State A. Thus the Government of State A requested the Court to adjudge and declare that the claim put forward by the Application of the Government B was not admissible. Examination of Related Jurisprudence in relation to the Jurisdiction of the Court While stare decisis is inapplicable and is not binding to the Court, 2 it may properly refer to judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for it decision.3 Thus, a thorough look of decided cases by the Court assumes importance for the illumination of the present controversy. In the case at hand, it cannot be gainsaid that A as a coastal state, in the exercise of its sovereignty, has the power to establish the extent of its territory subject only to principles of customary international law, particularly the Laws of the Sea. Under the UN Convention on the Law of the Sea, the breadth of the territorial sea is 12-nautical mile measured from the baseline of a country.4 As stated in the facts of the case, it is unequivocal that the vessel, flying the flag of state B was traversing the territorial sea of A and therein sustained damage and loss of lives of some of its crew due to the mines place by A. By bringing before the ICJ the present controversy, it is necessary to correlate the matter to an analogous cases decided by the ICJ. The case of Spain v. Canada 5 may be properly referred to. In that case, Canada amended its Coastal Fisheries Protection Act that extended its coverage in the North Atlantic Fisheries Organization (NAFO) Regulatory area. By virtue of this amendment, on 9 March 1995, the vessel Estai, flying the flag of Spain was forcefully boarded by the authorities of Canada some 245 miles from the Canadian Coast. The master of the vessel was arrested and the vessel was seized. Although the matter was eventually settled through diplomatic channels, the dispute was brought to the Court for adjudication of certain legal principles of international law. However, as with other cases decided by the Court, prior to the determination of its jurisdiction, it is necessary that the nature of the dispute must be properly raised by the Applicant. In every case nevertheless, not only do the Application and final submissions be thoroughly considered but also the diplomatic exchanges, public statements and other pertinent evidence would be taken into account.6 Thus, the principle of forum prorogatum permeates at the outset. Consequently, the Court will make a distinction between the dispute and the arguments advanced by the parties to further their cause in such controversy.7 Applying the foregoing to the instant case, it is incumbent upon State B to submit the precise nature of the dispute to the Court before the latter can even entertain the preliminary question of jurisdiction. Nevertheless, it is to be emphasized that the latter is not bound by the formulation of the Applicant of its cause of action. Rather, it has the duty to focus on the real object of the claim and the precise nature of the controversy as this is one of the characteristics of adjudicative powers of the Court.8 Of equal importance is the well recognized principle that the jurisdiction of the Court exists only within the limits with which a sovereign state has accepted it.9 This is explicitly provided for under Article 36 of the Statute of the ICJ. On the other hand, it is worthy to emphasize that the question of jurisdiction is to be determined by the Court itself and no burden of proof is placed upon any party to prove or disprove such although any party may advance arguments to that effect.10 For the Court's jurisdiction is a question of law to be determined in the light of the relevant facts.11 In this regard, the Court shall take into account all the relevant facts and arguments advanced by the parties to determine "whether the force of the arguments militating in favour of jurisdiction is preponderant, and to 'ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it."12 At this juncture, it behooves the Court to examine the parties' consent to its jurisdiction. In the instant case, both parties have accepted the jurisdiction of the court through the Optional Clause. However, a reservation was incorporated by State B with its Declaration of Acceptance, delineating the extent to which it is amenable to such jurisdiction, particularly those which falls within its domestic jurisdiction as it may determine. In this regard, reference may be had to the explications of the Court on previous decided cases regarding the intricacies of the Optional Clause along with the reservations it may include in its Declaration of Acceptance. The sui generis character of the unilateral acceptance by a State to the jurisdiction of the court under Article 36 of the Staute has the effect of establishing a potential jurisdictional link with, and a standing offer to other State parties which have not deposited its Declaration of Acceptance.13 Thus, it is necessary to state that any reservation or condition to the consent given by a State to the Compulsory Jurisdiction of the Court defines the parameter of such given consent and it should be taken in unity with the Declaration of Acceptance.14 Moreover, the court is not obliged to limit itself to a pure grammatical interpretation of such declaration. Emphasis on the intention of the State party at the time it deposited the Declaration of Acceptance is equally essential.15 Hence, any reservation to the Declaration of Acceptance must be interpreted in a manner that is in line with the resultant effect sought by the reserving State. On the hand, it is important to note that the position of a State party towards the effect of its acts in relation to customary international law does not operate as to exclude its prerogative to accept the jurisdiction of the Court under Article 36 through the Optional Clause and to stipulate reservations to its Declaration of Acceptance. Any violation by that State of the rights of other sovereign under the generally accepted principles of international law remains to be its responsibility to the global community whether or not it has chosen to submit itself to the jurisdiction of the Court.16 However, under Article 33 of the Charter of the United Nations, the parties in dispute must exhaust all avenues of pacific settlement to a controversy and the Security Council, when it deems necessary, may call upon the parties to settle their dispute by such means. The necessary basis having been established, it is at this instance that the Court should take into account the contention of State A that it is entitled, by way of reciprocity, to claim the same reservation which State B has, in its Declaration of Acceptance. In light of this, due regard must be had to previous decided cases by the ICJ involving reciprocity vis--vis the reservation to the acceptance. In particular, the doctrine in Interhandel Case comes as an indispensable reference to the instant controversy. One of the issues which the Court discussed in that case is the preliminary objection advanced by the United States (US) to the effect that the Court has no jurisdiction to take cognizance of the dispute applying the reciprocity principle. The US in that case had for its Declaration of Acceptance, a reservation to the jurisdiction of the Court in matters involving domestic controversy as it may determine. It argued that the Court has no jurisdiction since by way of reciprocity, Switzerland is also bound by the same reservation the US had made although the former did not express such reservation in its own Declaration of Acceptance. The Court rejected the US' contention that the principle of reciprocity is applicable in that case to oust the Court of its jurisdiction through the Optional Clause which both parties have availed of. 17 In the same vein, the principle of reciprocity in relation to reservations on acceptance of the compulsory jurisdiction of the ICJ was again expounded by the Court in the Case of Certain Norwegian Loans which also involved the so-called Self-Judging Reservations. In this case, France deposited its Declaration of Acceptance subject to reciprocity but with a reservation limiting its consent to the jurisdiction of the Court. On the other hand, Norway had also deposited its acceptance but without any reservation. The latter as defendant argued that by way of reciprocity, it was entitled to the same reservation as France had. The Court ruled that indeed, its jurisdiction is contingent upon which the parties had conferred such that there must be a common will of the parties. 18 Truly, the ICJ's jurisprudence is replete with disputes concerning the jurisdiction of the Court in relation to the acceptance made by State parties. It is then ripe to apply the doctrines in the instant case. International Law issues on the jurisdiction of the Court in the instant case It is not disputed in the instant case that the parties have given their consent to the jurisdiction of the Court through the Optional Clause. However, the reservation made by State B in its Declaration of Acceptance, like other State parties in previous cases, gave rise to divergent views by renowned jurists and scholars. As previously stated, these reservations are known as Self-Judging Reservations. In the Case of Certain Norwegian Loans, Judge Lauterpacht expressed his dissent in the construction of the Court on this kind of reservation to wit: "To do so is in my view contrary to Article 36 (6) of the Statute which, without any qualification, confers upon the Court the right and imposes upon it the duty to determine its jurisdiction. Moreover, it is also contrary to Article I of the Statute of the Court and Article 92 of the Charter of the United Nations which lay down that the Court shall function in accordance with the provisions of its Statute." 19 The distinguished Judge also dissented with the same line of reasoning when the Court decided the Interhandel Case (Switzerland . United States, 1959). Not only does these Self-Judging Reservations contravene Paragraph 6 of Article 36 of the Statute of ICJ but also Article 92 of the Charter of the United Nations.20 Nevertheless, it is equally true that the jurisdiction of the Court can only be invoked when a dispute is referred to it by State parties and in all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.21 This, the Court adhered to in deciding the above-mentioned cases. On the other side of the spectrum, it is worthy to mention the ruling of the Court in the Interhandel case on the issue of exhaustion of local remedies. Although this is not explicitly mentioned in the present case, the facts clearly show that the source of the dispute originated within the domestic jurisdiction of State A. Interhandel enunciated that whenever the a State party brings a controversy to the ICJ, and the matter involves violation of the local forum of the other, or when the laws of the other State can competently settle the dispute, it would be improper and premature for the complaining State party to refer the controversy directly to the ICJ without going through the courtesy of giving the other State party to resolve the matter in accordance with its national law. Thus, a thorough study on jurisprudence and the relevant facts in this case is indispensable for the illumination of the present controversy. In this case, it is necessary to refer to the doctrine enunciated in Spain v. Canada that the intention of the State party which made the reservation should be taken into account. This can be inferred from diplomatic exchanges, press releases and its legislative and executive disquisitions. However, the reservation in this case was made by B, the plaintiff, but it was invoked on the principle of reciprocity by State A. This complexity was addressed by the Norwegian Loans Case wherein the Court ruled that by virtue of reciprocity, Norway was entitled to the same reservation made by France in its Declaration of Acceptance. It should not be difficult to comprehend that the same is applicable in the present controversy. Hence, the jurisdiction of the Court in the instant dispute is in question. However, looking at the other side of the coin, so to speak, the Norwegian Loans Case involved purely commercial dispute such that it cannot be applied squarely on this matter. The dispute between State A and State B involves the loss of human lives. This is clearly a violation of the customary international law and of State A's obligation erga omnes towards the global community. True, it has the sovereign power to perform acts which it may be considered as a self-defense but it is equally true that it has the obligation not to do damage to other sovereign without even giving a hint of warning what the latter may sustain by reason of traversing State A's territorial sea. State A in this case apparently violated the right of State B to innocent passage which is a well recognized right under the generally accepted principles of international law. That being said, the explications of Court in several cases assume great relevance. The Court has time and again explained that for purposes of determining jurisdiction at the outset, the legality or illegality of the act complained of by a State party should not be confused with its right of recourse to the Court by virtue of its giving consent to its jurisdiction. The former can only be determined after the Court had the opportunity to weigh all the relevant facts, the arguments of the parties, and the applicability of general principle of law. The latter involves question of law. The acts of such defendant states remain to be their responsibility and obligation to the world community whether or not the ICJ has jurisdiction on their dispute. Several scholars and eminent jurists have lamented for years that the reservation of that kind as employed by B weakens the system of the Optional Clause and contravenes the Statute. By a mere expedient of limiting the jurisdiction of the ICJ as a State party may determine, the Court will be confronted with opposing opinions as to which should be the proper doctrine. Would the doctrine of State sovereignty be adhered to or is it diminished by the fact that they have given consent to the compulsory jurisdiction of the Court. This is what happened in the celebrated case of Nicaragua v. United States of America. In that case, the Court acquired jurisdiction over the parties by virtue of the Declaration of Acceptance by the two countries. However, the US subsequently amended its acceptance by adding another reservation to the effect that such acceptance does not cover any dispute that the US might have with any Central American State, only a few days prior to Nicaragua's commencement of the case before the ICJ. The Court pronounced that it cannot unilaterally amend its acceptance without complying with the prior six-month period with which it has to give notice that it is amending such acceptance. Consequently, the US did not recognize the competence of the Court to hear the case as the issue should be brought to the Security Council relying on Article 34 of the Charter of the United Nations. The Court on the other hand, reasoned that although the US may argue that it is the Security Council which should settle the matter, the former has the jurisdiction to entertain the case in accordance with Article 92 in relation to paragraph 3, Article 36 of the same Charter. The Court stressed in that case that the principle of bona fides is the bedrock of the Optional Clause. Just as good faith is the basis of pacta sunt servanda in the law of treaties, it is equally essential in unilateral declarations of State parties accepting the jurisdiction of the Court under paragraph 2, Article 36 of the Statute or frequently referred to as the Optional Clause.22 Truly, no provision in the Statute of the ICJ had received more attention than Article 36. If by nature of the Optional Clause, State parties can avoid the jurisdiction of the Court when in the first place, they have, at the outset, recognized it, logically it may be regarded as a weak system.23 Nevertheless, the Court's jurisdiction was always invoked in several cases as previously mentioned because of the failure of both parties to come into an agreement on how to peacefully settle their disputes. This is true also in the instant case. Yet, the question of jurisdiction is always presented before the Court for several reasons. One of these is to altogether avoid the judgment the Court might hand down especially if the State party who questions such jurisdiction has apparently violated customary international law. Yet, it is a fundamental rule in international law that State parties are in good faith when they have deposited their Declaration of Acceptance including any reservation contained therein. Hence, the reservation clause that might avoid the jurisdiction of the Court in future disputes are to be construed to involve acts that are within the bound of peremptory norm under international law.24 Validity of Reservation The Court in several cases have held that the State parties, in accordance with the principle of State autonomy has the sovereign power to choose whether or not it submits to the jurisdiction of the Court in any given dispute with another State. Be it under a Compromis, jurisdictional clause of a treaty or under the Optional Clause System, a State has in is entire disposal to choose among those mentioned. However, when such State gives it consent to the jurisdiction of the Court, it is not permitted to unilaterally withdraw therefrom and renege on its obligation, either under the pacta sunt servanda principle on the law of treaties or on the principle of bonum fides under the Statute of ICJ and the Charter of the United Nations. However, it is also recognized under the generally accepted principle of international law that a State also has the prerogative to make reservations on its acceptance, albeit this is not explicitly found in the Statute. 25 These reservations however, are not absolute. The State can only make reservations which do not run counter to its Declaration of Acceptance or altogether determine for itself, in any given case, whether or not the court has jurisdiction. This is what is known as Automatic Reservations or Self-Judging Reservations, and it is invalid for it contravenes Paragraph 6 of Article 36 of the Statute. That comptence de la competence falls under the power of the Court under Paragraph 6 of Article 36. To this end, the reservation clause should not be taken out in isolation from the Declaration of Acceptance. To do so would render violence to the time-honored principle ut res magis valeat quam pereat. In the light of these, the Court in the instant case must not only take the reservation of State B in its grammatical sense but also the intention of the latter in making its acceptance to the jurisdiction of the Court. The present controversy is bereft of facts that show such intention. Hence, it must gather from sources which are equally recognized under previous jurisprudence, to establish such intention, among these are the Note Verbale, Diplomatic exchanges, Communiques and press statements and such other relevant facts might shed light to the Courts determination of its jurisdiction. Nevertheless, it is well to emphasize that it is the defendant, State A, who invokes such reservation by virtue of the reciprocity principle. It is to be noted that State A did not, in its Declaration of Acceptance, make any reservation as to the jurisdiction of the Court in certain matters. The question hence, is that, can State A invoke such reservation in the light of established jurisprudence regarding reservation clauses If so, can the Court validly assimilate the intention of State B in its Declaration of Acceptance with that of State A In other words, granting that the reservation of State B is valid, can State A invoke it on principle of reciprocity The answer to these is in the negative. It is to be remembered that State A deposited its Declaration of Acceptance without any reservation. Hence, its submission to the Court is unqualified. It cannot later on, limit the jurisdiction of the Court by the simple invocation of such reservation by virtue of reciprocity, for it would render meaningless Paragraph 6, Article 6 of the Statute. True, the principle of reciprocity is applicable such that State A can avail of it in certain cases. However, the present case should be taken as en exception. The loss of lives of the crew of the vessel flying the flag of State B by virtue of the mines place by State A in its territorial waters, cannot be shun aside by mere technicalities. By invoking such reservation, State A hypothetically admitted the facts advanced by State B. The cases of Interhandel and Norwegian Loans are entirely alien to the present controversy since the two cases involved purely commercial transactions. The present case involves obligation erga omnes of State A to the world community. It cannot just placed mines along its territorial waters on the pretext of self-defense in violation of the Law of the Sea. Assuming it did not place the mines, it is nevertheless responsible for any acts committed within its territory, subject only to the limitations established under the generally accepted principle of international law such that it cannot be imputed as an act of state. However, even if reciprocity principle is applicable in the present dispute, if on the other hand, the reservation of State B is invalid, then, it logically would follow that there is no reservation to speak of. Ergo, State A cannot invoke any reservation which does not exist in the first place. Either way, State A is bound by its unqualified Declaration of Acceptance. Jurisdiction of the Court in the instant case Taking heed from the foregoing doctrines, commentaries of renowned jurists and scholars of international law, it is evident that the Court has jurisdiction in this case. The validity of State B's reservation is not material to the determination of the court's jurisdiction for the issue hinges on the validity of the invocation by State A of the reservation of State B on principle of reciprocity. Although the Case of Certain Norwegian Loans has established a doctrine which may be applicable in the instant controversy, it had a different factual backdrop. This case involves a novel question of international law, and a question of this magnitude cannot be left solely to the parties. It is an unbending rule that the court is the master of its own jurisdiction and neither party can impose its will on the prerogatives of the Court once the parties submit to its jurisdiction, in line with Paragraph 6 of Article 6 of the Statute of ICJ. In the instant case, it is clear that both party have deposited their Declaration of Acceptance, hence, they are bound by its provision and neither should they renege from it on the pretense that a certain principle of international law is available to them, precisely to invalidate its submission to such jurisdiction.26 Such proposition cannot be tolerated if the Court's jurisdiction, which is the heart of its existence, is to remain steadfast and strengthened. Its integrity cannot be fiddled with especially when what is at stake is an important question of international law to the end that justice may be rendered for the enrichment of the Courts jurisprudence and for the benefit of the global community. Conclusion At the risk of being repetitious, it is well to emphasize that the Court is not bound by previously decided cases. Cases are to be handled in the light of relevant facts and once judgment is rendered on it, it does not operate to bind other disputes of similar import. 27 In the present dispute, it is apparent that the Court has no jurisdiction taking into account the presented facts. However, upon thorough examination of previous doctrines vis--vis principles of international law, it is with a strong conviction that the Court has competence to take cognizance of the case. There is here a matter which calls for the application of Paragraph 6 of Article 36 of the Statute, and so the Court must, by virtue of the power vested in it, apply it in full force. Its prerogatives cannot be diminished by invocations of principles of international law which are inapplicable to a given dispute. It should be remembered that negotiations between the parties have failed. Other modes of settling the disputes peacefully may be resorted to without resorting to the Court but this does not serve the purpose of establishing the International Courts of Justice. For several decades, the Court had its fair share of critiques. And over time, it had developed into a more robust entity that rendered justice in light of prevailing doctrines and applicable principles of international law. The Court cannot shirk way from its duty entrusted by the community of nations as the final arbiter of international disputes. As mankind's quest for lasting world peace grows strong, so must the Court's resolve be, for the sake not only of the present generation, but also for those who are yet to be born. Endnotes Read More