34

SEPARATE OPINION
OF JUDGE SIR HERSCH LAUTERPACHT

While I concur in the operative part of the Judgment inasmuch
as the Court has declared itself incompetent to decide on the
merits of the case submitted to it, I much regret that I do not find
myself in agreement with the grounds of the Judgment. As the
issues involved are intimately connected with the nature of the
decisions of the Court in the matter of its competence, as well as
with some basic questions of its obligatory jurisdiction, I consider
it my duty to indicate in some detail my own position on the
subject.

The Judgment of the Court is based exclusively on the finding
that the Court is bound to decline jurisdiction for the reason that
Norway has invoked the reservation, operating by virtue of reci-
procity, of the French Declaration of Acceptance in which the
French Government excluded from the jurisdiction of the Court
“matters which are essentially within the national jurisdiction, as
understood by the Government of the French Republic”.

There are two reasons for which I find myself compelled to
dissent from the grounds of the Judgment thus expressed. In the
first instance, assuming—an assumption which I must reject—that
the French Declaration of Acceptance is a text which is valid in law,
the question of jurisdiction must, in my view, be decided by ref-
erence to substantive Preliminary Objections advanced by the
defendant Government rather than by reference to the subsidiary
Objection referred to above. Secondly, and principally, I consider
that as, in consequence of the latter reservation, the French Decla-
ration of Acceptance is invalid, there is before the Court no text the
reservations of which it can apply. This fact, and not the Norwegian
reliance upon the French reservation of matters of national juris-
diction, is in my view the true reason why the Court has no juris-
diction in the present case.

In this Separate Opinion I propose, for the sake of abbreviation,
to use the term “automatic reservation” to indicate the French
reservation of ‘‘matters which are essentially within the national
jurisdiction, as understood by the Government of the French
Republic’. That description expresses the automatic operation of
that reservation in the sense that, by virtue of it, the function of
the Court is confined to registering the decision made by the
defendant Government and not subject to review by the Court.

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35 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)
I
The Preliminary Objections of Norway

In the present case the Government of Norway has challenged
the jurisdiction of the Court in reliance upon the following Prelim-
inary Objections:

(x) It has maintained that, as the French application refers to
a dispute which is concerned exclusively with Norwegian national
law, it is not a dispute falling within the terms of Article 36 (2) of the
Statute which, it is alleged, covers onlv disputes relating to questions
of international law.

(2) Secondly, the Government of Norway has maintained that
the holders of the loan certificates on whose behalf the French
Government considered itself entitled to seise the Court did not
previously exhaust the local remedies as required by international
law, That Objection is closely related to that referred to above, in
the sense that, as repeatedly emphasized by the Norwegian Govern-
ment in the written and oral proceedings, it is the failure to exhaust
local remedies which has prevented the dispute from acquiring the
complexion of a dispute concerning international law.

(3) Thirdly, in case ‘‘there is still doubt” as to the contention
that the dispute is concerned solely with a question of Norwegian
law, the Norwegian Government invoked, in reliance upon the
provision of reciprocity, the ‘automatic reservation” incorporated
in the French Declaration of Acceptance. As already stated, the
Judgment of the Court is based exclusively on that latter Prelim-
inary Objection.

It seems a sound principle of judicial procedure that, unless the
provisions of its Statute or other cogent legal considerations make
that impossible, the Judgment of the Court should attach to the
submissions of the Parties a purpose, though not necessarily an
effect, which the Parties attached to them. Applied to objections
to the jurisdiction of the Court, that principle means that, when a
Party has advanced objections to the jurisdiction of the Court, the
decision on the question of jurisdiction must be reached by reference
to objections which, in the intention of the Party advancing them,
are principal rather than subsidiary and which are substantive
rather than formal. This is so in particular in the international
sphere where a Government may rightly consider that it should
not be treated as having successfully challenged the jurisdiction of
the Court on the basis of objections which are ancillary and auto-
matic—at a time when its main effort was directed to jurisdictional
objections of substance. It is clear from the written and oral
proceedings that Norway, far from putting forward the ‘automatic
reservation” as the main objection, intended to rely upon it only
in a subsidiary manner and in the last resort—onlv if “‘there is still

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36 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

doubt” as to the principal preliminary objection. This explains
why, after having invoked the “automatic reservation” in a sub-
sidiary manner in the original document entitled ‘Preliminary
Objections of Norway’, the Norwegian Government did not sub-
sequently on a single occasion refer to it, except generally and
indirectly. That Objection, though not formally withdrawn, was
kept in the background throughout the proceedings—a reticence
explained by the disinclination of a Government to rely primarily
upon an objection the success of which depends on the bare asser-
tion of the will of that Government. In my opinion, a Party to
proceedings before the Court is entitled to expect that its Judgment
shall give as accurate a picture as possible of the basic aspects of
the legal position adopted by that Party. Moreover, I believe that
it is in accordance with the true function of the Court to give an
answer to the two principal jurisdictional questions which have
divided the Parties over a long period of years and which are of
considerable interest for international law. There may be force and
attraction in the view that among a number of possible solutions a
court of law ought to select that which is most simple, most concise
and most expeditious. However, in my opinion such considerations
are not, for this Court, the only legitimate factor in the situation.

Accordingly, although I am of the opinion that there is before
the Court no valid Declaration of Acceptance by reference to
which it can assume jurisdiction, I consider it my duty to state my
opinion as to the principal Preliminary Objections of Norway.
Apart from a partial objection referred to below, these were the
only two jurisdictional objections which were argued before the
Court.

There are two other Preliminary Objections which figure in the
written and oral proceedings and to which only passing reference
need be made. In one, subsequently withdrawn, Norway asserted
that the subject-matter of the dispute did not fall within the terms
of the French Declaration of Acceptance which limited the Accep-
tance to ‘‘disputes which may arise in respect of facts or situations
subsequent to the ratification” of the Declaration of Acceptance.
Another Objection had reference to one portion of the claim only.
In it Norway contended that, as some of the loans in question
were contracted not by the Norwegian State but by certain Banks
not identical with it, Norway could not properly be made a respon-
dent in respect of that part of the claim. It is not necessary to
examine here that particular Objection—which I do not consider
to be well founded.

*

With regard to the first Preliminary Objection referred to above
I am unable to accept the view that the subject-matter of the

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37 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

present dispute is not related to international law but exclusively
to the national law of Norway. Undoubtedly, the question of the
interpretation of the contracts between the Norwegian State and
the bondholders is primarily a question of Norwegian law. It is not
disputed that the Norwegian law is the proper law of the contract
and that it is for the Norwegian courts to decide what Norway had
actually promised to pay. However, the complaint of the French
Government is that, having regard to the currency legislation
suspending the operation of the gold clause, the Norwegian law
which the Norwegian courts are bound to apply in this case is
contrary to international law. The Norwegian courts may hold that
the gold clause in the bonds is a gold coin clause (as distinguished
from a gold value clause), that that gold coin clause has been
rendered inoperative as the result of the legislation in question, and
that the existing currency is, therefore, a lawful means of payment.
In the view of the Norwegian Government this is the proper inter-
pretation of what it has in law promised to pay. However, it is that
very legislation, in so far as it affects French bondholders, which
may be the cause of violation of international law of which France
complains.

It may be admitted, in order to simplify a problem which is not
at all simple, that an “international” contract must be subject to
some national law; this was the view of the Permanent Court of
International Justice in the case of the Serbian and Brazilian .
Loans. However, this does not mean that that national law is a
matter which is wholly outside the orbit of international law.
National legislation—including currency legislation—may be
contrary, in its intention or effects, to the international obligations
of the State. The question of conformity of national legislation
with international law is a matter of international law. The notion
that if a matter is governed by national law it is for that reason
at the same time outside the sphere of international law is both
novel and, if accepted, subversive of international law. It is not
enough for a State to bring a matter under the protective umbrella
of its legislation, possibly of a predatory character, in order to
shelter it effectively from any control by international law. There
may be little difference between a Government breaking unlawfully
a contract with an alien and a Government causing legislation to
be enacted which makes it impossible for it to comply with the
contract. For these reasons it is difficult to accept the argument of
Norway to the effect that as this Court can decide only on the basis
of international law and that as the main substantive question
in the dispute is the interpretation of Norwegian law, this is not a
dispute which is covered by Article 36 (2) of the Statute. The dispute
now before the Court, although it is connected with the application
of Norwegian law, is also a dispute involving international law.
It is possible that if the Court had jurisdiction on the merits it
would find that Norway has not violated any rule of international

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38 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

law by declining to repay the bonds in gold. However, in finding
that, the Court would apply international law.

The greater part of the written and oral argument of Norway—as
well as that of the applicant State—has been devoted to a considera-
tion of the relevant questions of international law. The question
of the treatment by a State of property rights of aliens—including
property rights arising out of international loans—is a question
of international law. So is the question whether, in this respect,
equality of treatment of nationals and aliens relieves a State of its
international responsibility. So is, further, the question whether
there is in this respect a difference between resident aliens and
aliens resident abroad. It may be also difficult to deny that the
allegation of discriminatory treatment as between French and non-
Norwegian bondholders raises an issue of international law. The
very question whether local remedies have been exhausted—a
question on which Norway has made dependent the international
character of the dispute—is a question of international law. Finally,
although there seems to be little substance in the contentions
advanced by the French Government on the subject of The Hague
Convention of 1907 relating to Contract Debts in so far as it is
alleged to impose an obligation to arbitrate, it is relevant to state
that that Convention indirectly recognizes that controversies of
that character are suitable for settlement by reference to public
international law. It is of interest, in this connection, to note the
wording of Article 53 of The Hague Convention of 1907 for the
Pacific Settlement of International Disputes which refers expressly,
as suitable for arbitration before the Permanent Court of Arbitration,
to disputes “arising from contract debts claimed from one Power
by another Power as due to its nationals”.

The relevance of these questions of international law cannot
properly be denied by reference to the fact that unless and until
Norwegian courts have spoken it is not certain that there has been a
violation of international law by Norway. The crucial point is that,
assuming that Norwegian law operates in a manner injurious to
French bondholders, there are various questions of international
law involved. To introduce in this context the question of exhaustion
of local remedies is to make the issue revolve in a circle. The
exhaustion of local remedies cannot in itself bring within the
province of international law a dispute which is otherwise outside
its sphere. The failure to exhaust legal remedies may constitute
a bar to the jurisdiction of the Court; it does not affect the intrin-
sically international character of a dispute.

This being so, my view is that, in principle, the present dispute
is also one of international law and that it comes within the
orbit of controversies enumerated in Article 36 (2) of the Statute
of the Court.

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39 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

* * *

In my opinion, the Preliminary Objection of Norway relating to
exhaustion of local remedies is well founded. This does not mean
that the position of the French Government on the subject is
altogether without merit. For the requirement of exhaustion of
local remedies is not a purely technical or rigid rule. It is a rule
which international tribunals have applied with a considerable
degree of elasticity. In particular, they have refused to act upon
it in cases in which there are, in fact, no effective remedies available
owing to the law of the State concerned or the conditions prevailing
in it. In the present case, while, as will be suggested presently, the
Court cannot regard it as conclusively proven that the Norwegian
courts would refuse a remedy, it is clear that in general their
decision must be based on Norwegian law, including the legislation
of 1923 which is alleged to result in an injury to the legitimate
rights of French bondholders. From that point of view I can
appreciate the contention of the French Government that there
are no effective remedies to be exhausted—even if I must hold
that, however contingent and theoretical these remedies may be, an
attempt ought to have been made to exhaust them.

Also, inasmuch as the case of the French Government is based on
the allegation of discriminatory treatment as between French
bondholders on the one side and Swedish and Danish bondholders
on the other, it is not easy to see what remedy the Norwegian courts
could provide against governmental acts which, as such, cause no
injury to French bondholders.

However, these doubts do not seem strong enough to render
inoperative the requirement of previous exhaustion of local remedies.
The legal position on the subject cannot be regarded as so abun-
dantly clear as to rule out, as a matter of reasonable possibility,
any effective remedy before Norwegian courts.

The Norwegian Government has contended that the burden of
proving the inefficacy of local remedies rests upon France. There is,
in general, a degree of unhelpfulness in the argument concerning the
burden of proof. However, some prima facie distribution of the
burden of proof there must be. This being so, the following seems
to be the accurate principle on the subject: (x) As a rule, it is for the
plaintiff State to prove that there are no effective remedies to
which recourse can be had; (2) no such proof is required if there
exists legislation which on the face of it deprives the private
claimants of a remedy; (3) in that case it is for the defendant State
to show that, notwithstanding the apparent absence of a remedy,
its existence can nevertheless reasonably be assumed; (4) the degree
of burden of proof thus to be adduced ought not to be so stringent
as to render the proof unduly exacting. Both in the written and the
oral proceedings the Government of Norway has attempted to
adduce such proof. Whatever may be its cogency, it must be

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40 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

regarded as sufficient for the purpose.

In the first instance, in matters of currency and international
loans the decisions of courts of various countries—including those
of Norway—have not been characterized by such a pronounced
degree of uniformity and certainty as to permit a forecast, with full
assurance, of the result of an action in Norwegian courts. The deci-
sion of the Permanent Court of International Justice in the Brazilian
and Serbian Gold Clause cases has been followed by courts of
some countries but not by those of others. While the courts of most
States have interpreted the gold coin clause as importing necessarily
a gold value clause, this has not been the practice in all countries.
Moreover, the courts of the same State have often shown consider-
able divergencies and hesitation on the subject. Thus, in England,
in the two important cases relating to the gold clause—The King v.
International Trustee for the Protection of Bondholders ‘1937] A.C.
500, and Feist v. Société Intercommunale Belge d’Electricité [1934]
A.C. 161—it was left to the House of Lords to reverse the decisions
of the Court of First Instance and of the Court of Appeal. While
French courts have, with some uniformity, refused to recognize
the cours forcé in international contracts, it appears that they have
done so on different and diverging grounds. In some cases they
have acted on the principle according to which a foreign public
law can only operate within the territory of the State in question;
in other cases they have applied the principle of the autonomy of
the will, which makes it possible for the parties to exclude the
operation of any national legal system whatsoever; in other cases
still they have acted on the view that while the operation of the
gold clause is subject to the law of the State concerned, it is so only
within the limits of public policy. This being so, there may be no
sufficient reason for drawing final conclusions from the alleged
previous practice of Norwegian courts and for asserting that it has
been conclusively proven that there is in this case no remedy
available under Norwegian law. It is possible—however unlikely,
in the view of the French Government, that possibility may be—
that the Norwegian courts may hold that the bonds embodied a
true gold clause and that, having regard to international law or the
constitutional law of Norway, the law of 1923 cannot be applied or
that it must be applied so as not to injure the French bondholders.

I cannot consider it as a certainty that, assuming that the Nor-
wegian legislation on the subject is contrary to international law
in so far as it affects aliens, no remedy at all is possible under Nor-
wegian law. There has been a tendency in the practice of courts
of many States to regard international! law, in some way, as forming
part of national law or as entering legitimately into the national
conception of ordre public. Although the Norwegian Government

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41 . NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

has admitted that in no case can a Norwegian court overrule
Norwegian legislation on the ground that it is contrary to inter-
national law, it has asserted that it is possible that a Norwegian
court may consider international law to form part of the law of the
Kingdom to the extent that it ought, if possible, to interpret the
Norwegian legislation in question so as not to impute to it the
intention or the effect of violating international law. Also, it seems
a fact that in certain matters Norwegian courts have the power to
review the acts of the legislature, in particular from the point of
view of their conformity with the constitution. This, it has been
asserted, may mean that Norwegian courts might refuse to give
retro-active effect to the legislation in question. These possibilities
may be remote. They are not so absolutely remote as to deserve to
be ruled out altogether.

Secondly, it is difficult to admit, having regard to the long
history of the present dispute and the negotiations relating thereto,
that the French Government has given a sufficient explanation of
the failure of the French creditors to seek a remedy before Nor-
wegian courts. No persuasive reason has been adduced why the
French Government, by encouraging an attempt to exhaust local
remedies, has not assisted in eliminating the possibility of that
Preliminary Objection. The delay resulting from any such attempt
would have been relatively small in comparison with the long
period of years consumed by the protracted negotiations on the
subject. There seems to run through the submissions of the French
Goyernment the apprehension that after Norwegian courts have
finally dismissed the claim of the French creditors the only claim
internationally available to the French Government would be that
on account of denial of justice. This is probably not so. A final
adverse decision of Norwegian courts would still leave it possible
to the French Government to contend that Norwegian legislation,
as finally upheld by Norwegian courts, is contrary to international
law. No decisive importance can be attached to the view that,
seeing that the Norwegian Government repeatedly reiterated that
it was prevented by the Norwegian Law to effect payment in gold,
the French bondholders were entitled to assume that they have no
remedy under Norwegian law. The Norwegian Government, being
an interested party, was not for this purpose an authorised inter-
preter of Norwegian law. It was for the bondholders, by bringing
an action before Norwegian courts, to attempt to show that the
Norwegian Government was mistaken in its interpretation of
Norwegian law. If the courts held that that interpretation was
correct, then the road to international proceedings would no longer
be blocked by the objection based on the failure to exhaust local
remedies. I must, therefore, although with some hesitation, consider
that objection as well founded.

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42 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT}

* * *

In invoking the ‘automatic reservation” the Government of
Norway apparently was of the opinion that what it did was no
more than to invoke it in aid—uin decisive aid, if need be—of the
contention, previously advanced, that the dispute is not concerned
with international law and that it does not therefore fail within the
orbit of Article 36 (2) of the Statute by reference to which Norway
accepted the obligatory jurisdiction of the Court. Actually these
two questions are not identical. A dispute may be essentially
within the national jurisdiction of a State (i.e. covered by the terms
of the ‘automatic reservation”) while being at the same time a
dispute concerning a question of international law.

If the Court were called upon to determine itself whether the
subject-matter of the present dispute is essentially within the do-
mestic jurisdiction of Norway it would be confronted with a
difficult task. It is possible to hold that, although—contrary to the
view expressed by the Norwegian Government—the dispute is also
one of international law, it nevertheless arises out of a matter
essentially within the jurisdiction of the State seeing that questions
of currency are essentially within the national jurisdiction. In that
case the Preliminary Objection based on the French reservation
would be valid in its own right—quite apart from the right of
unilateral determination. There is the alternative view that if a
dispute is also concerned with international law then it is no longer
exclusively within the national jurisdiction; that the terms ‘‘ex-
clusively” and “‘essentially’’ are substantially identical; and that,
therefore, the subject-matter of the present dispute is not essentially
within the national jurisdiction of Norway. However, the Norwegian
Government has attached no importance to elaborating that
distinction. It not only stated, in the minimum of words, that the
matter is essentially within the national jurisdiction of Norway; it
stated that it said so and that it said so with finality.

The determination thus made was advanced in a subsidiary
manner at the initial stage of the proceedings. It was subsequently
kept in the background and invoked only by studious indirection.
It was never formally withdrawn. It provided the exclusive basis
for the Judgment of the Court which, on this question, says in
effect as follows: According to the Norwegian Government the
issue is one essentially within the domestic jurisdiction of Norway.
That view may be ill-founded. However, it is the view of the
Norwegian Government. As such it is decisive for the purpose of
jurisdiction of the Court—just as if the French Government were
the defendant State its view to that effect would be decisive by
virtue of the reservation as formulated by it. The Court must
accept that view not because it agrees with it, but because it is

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43 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

the view of the Norwegian Government. Its accuracy is irrelevant.
This is the inescapable result of the condition under which France
—and consequently Norway—accepted the jurisdiction of the
Court. That preliminary Objection of Norway is quite peremptory,
fully effective to the point of being automatic, and is not subject
to review by the Court.

I have given reasons why, in my view, the “automatic reser-
vation’, being of a subsidiary character, was not in any case
calculated to provide an exclusive basis of the Judgment of the
Court. However, apart from that aspect of the question and
whatever may be the position with regard to the validity of the
French Acceptance as a whole, it is my view that it was not open to
the Court to act on that particular reservation. This is so for the
reason that I consider it legally impossible for the Court to act in
disregard of its Statute which imposes upon it the duty and confers
upon it the right to determine its jurisdiction. That right cannot
be exercised by a party to the dispute. The Court cannot, in any
circumstances, treat as admissible the claim that the parties have
accepted its jurisdiction subject to the condition that they, and
not the Court, will decide on its jurisdiction. To do so is in my view
contrary to Article 36 (6) of the Statute which, without any qualifi-
cation, confers upon the Court the right and imposes upon it the
duty to determine its jurisdiction. Moreover, it is also contrary
to Article x 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.
It is that question which I now propose to consider in connection
with the examination of the validity of the French Acceptance.

II
The Validity of the French Declaration of Acceptance

I. Is the “automatic reservation” consistent with the Statute?

I have stated the reasons for which, if I felt free to do so, I would
reject all Preliminary Objections of Norway with the exception
of that relating to the exhaustion of local remedies. However, I do
not feel free to decide the question of jurisdiction on these grounds.
To do so would be to admit that the Court is confronted with a
valid instrument of acceptance of its jurisdiction on the part of
France. In my view it is impossible to admit that. I consider that as
the French Declaration of Acceptance excludes from the jurisdiction
of the Court ‘‘matters which are essentially within the national
jurisdiction as understood by the Government of the French
Republic’’—the emphasis being here on the words “as understood
by the Government of the French Republic’’—it is for the reason

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44 NORWEGIAN LOANS (SEP. OP. SIR HERSCH LAUTERPACHT)

of that latter qualification an instrument incapable of producing
legal effects before this Court and of establishing its jurisdiction.
This is so for the double reason that: (a) it is contrary to the Statute
of the Court; {b) the existence of the obligation being dependent
upon the determination by the Government accepting the Optional
Clause, the Acceptance does not constitute a legal obligation.
That Declaration of Acceptance cannot, accordingly, provide a
basis for the jurisdiction of the Court. Norway has not accepted
the jurisdiction of the Court on any other basis. The Court
therefore has no jurisdiction.

As stated, the first reason for that view is that that particular
part of the acceptance of the Optional Clause on the part of the
French Republic is contrary to the Statute of the Court. In the
reservation in question the Government of France says in effect:
If a Government brings an application before the Court in reliance
on the French acceptance of the jurisdiction of the Court and if
the Government of France maintains that the Court has no juris-
diction on the ground that the subject-matter of the dispute is
essentially within the domestic jurisdiction of France, then the
Court has no power to decide upon that particular allegation;
it must accept as binding the French understanding of the legal
position on the subject.

If that type of reservation is valid, then the Court is not in the
position to exercise the power conferred upon it—in fact, the duty
imposed upon it—under paragraph 6 of Article 36 of its Statute.
That paragraph provides that ‘in the event of a dispute as to
whether the Court has jurisdiction, the matter shall be settled by a
decision of the Court”. The French reservation lays down that if,
with regard to that particular question, there is a dispute between
the Parties as to whether the Court has jurisdiction, the matter shall
be settled by a decision of the French Government. The French.
reservation is thus not only contrary to one of the most fundamental
principles of international—and national—jurisprudence according
to which it is within the inherent power of a tribunal to interpret
the text establishing its jurisdiction. It is also contrary to a clear
specific provision of the Statute of the Court as well as to the
general Articles x and g2 of the Statute and of the Charter, respect-
ively, which require the Court to function in accordance with its
Statute.

Now what is the result of the fact that a reservation or part of it
are contrary to the provisions of the Statute of the Court? The
result is that that reservation or that part of it is invalid. Some
examples may usefully illustrate that aspect of the question: What
would be the position if in accepting—or purporting to accept—the
obligations of Article 36 of the Statute, a State were to exclude the
operation of paragraph 6 of that Article not only with regard to one
reservation but with regard to all reservations or, generally, with
regard to any disputed question of the jurisdiction of the Court?

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45 NORWEGIAN LOANS (SEP, OP. SIR HERSCH LAUTERPACHT)

What would be the position if the Declaration were to make it a
condition that the oral proceedings of the Court shall be secret;
or that its Judgment shall not be binding unless given by unanimity;
or that it should contain no reasons; or that no Dissenting Opinion
shall be attached; or that Judges of cértain nationality or national-
ities shall be excluded; or that, contrary to what is said in Arti-
cle 38 of its Statute, the Court shall apply only treaties and custom
in the sense that it shall not be authorized to apply general
principles of law as recognized by civilized States and that if
it is unable to base its decison on treaty or custom it shall
pronounce a non liqguet? What would be the position in the case
of any such reservation?

It might be said that some of these examples are hypothetical
and farfetched. In fact they are less farfetched than the particular
instance here discussed—the instance of a reservation according to
which a Government claims, after it has submitted to the compulsory
jurisdiction of the Court, the right to determine for itself, after
the dispute has arisen and been brought before the Court, whether
the Court has jurisdiction. Neither is it accurate to say that these
examples are irrelevant seeing that while the Statute as interpreted
in practice permits reservations to its jurisdiction it does not permit
reservations as to the functioning and the organization of the Court.
For, assuming that distinction to be valid, the reservation here dis-
cussed pertains to the functioning of the Court in the matter of its
jurisdiction.

Clearly the Court cannot act otherwise than in accordance with
its Statute. By way of illustration reference may be made here to
the case of the Free Zones in which the Court stated that it ‘cannot,
on the proposal of the Parties, depart from the terms of the Statute”
—a statement made in response to a request of the parties that the
Court should communicate to them unofficially the result of its
deliberations (Series A, No. 22, p. 12). The Court acted in that way
although at that time it was not bound by the express provisions
of the Charter and the Statute requiring it to act in accordance with
its Statute. In a different sphere, in its Advisory Opinion of 7 June
1955 concerning the Voting Procedure of the General Assembly in the
Matter of Petitions from South West Africa, the Court was of the
view that it was legally impossible for the General Assembly to
reach decisions on these questions in accordance with a voting
system “‘entirely alien to that prescribed by the Charter’ (/.C./.
Reports 1955, p. 76). There was in that case room for the argument
that voting being to some extent a matter of procedure the General
Assembly enjoyed some latitude in the matter. This was not the
view of the Court. It based its Opinion on the principle that an
organ cannot act except in accordance with its constituent instru-
ment. In the present case the acceptance of the jurisdiction of the
Court is made dependent on a condition which radically departs
from the Statute—which is in clear contradiction with the Statute—

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with regard to a fundamental aspect of the functioning of the Court.
It would seem that, for that reason, the French Declaration of
Acceptance would be invalid even if the particular issue which is
connected with its invalidity did not arise in the case now before the
Court. But that particular issue does arise. The Norwegian Govern-
ment invoked that particular reservation and, although it has kept
it in the background, it has not withdrawn it.

In accepting the jurisdiction of the Court Governments are free
to limit its jurisdiction in a drastic manner. As a result there may
be little left in the Acceptance which is subject to the jurisdiction
of the Court. This the Governments, as trustees of the interests
entrusted to them, are fully entitled to do. Their right to append
reservations which are not inconsistent with the Statute is no longer
in question. But the question whether that little that is left is or
is not subject to the jurisdiction of the Court must be determined
by the Court itself. Any conditions or reservations which purport
to deprive the Court of that power are contrary to an express
provision of the Statute and to the very notion, embodied in Article
36 (6), of conferment of obligatory jurisdiction upon the Court. As
such they are invalid. It has been said that as Governments are
free to accept or not to accept the Optional Clause, they are free
to accept the very minimum of it. Obviously. But that very mini-
mum must not be in violation of the Statute.

If the Court cannot function except in conformity with its
Statute then, when confronted with an Acceptance containing a
reservation which is contrary to a provision of the Statute, it must
consider that reservation as invalid. This is not a conclusion of
juridical refinement. It is the result of the fact that the Statute of
the Court is the basis and the very source of the Declaration of
Acceptance. The Declaration does not exist except by virtue of the
Statute. It does not legally exist unless it is in accordance with it.
In this connection mention may be made of the legal principle
generally recognized in municipal law according to which a condition,
in a contract or in any other legal instrument, that is contrary to
a fundamental principle of judicial organization is invalid. That
principle is recognized with some precision in French law.

How does it come to pass that, in formulating their acceptance of
the jurisdiction of the Court, Governments — for this form of Accept-
ance has not been confined to the Government of France—deem
themselves free to disregard the Statute of the Court to which they
are parties? It would be inaccurate to explain that attitude by
reference to any absence of familiarity with the terms of the Statute.
The relevant provisions of the Statute were clearly before the
authors of the Declaration and they were considered by them with
reference to the very question here discussed. This is not a question
whether the Court ought to give encouragement, direct or indirect,
to any such attitude of indifference to its Statute. The Court is not

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concerned with safeguarding the dignity of its Statute—though it is
concerned with safeguarding its authority. However that may be,
the deliberate character of the disregard of the Statute of the Court
by the authors of the Declaration has a bearing upon the effects, in
the sphere of nullity, of the Declaration thus made. For it rules out
the admissibility of any attempt to bring it somehow, by way of
interpretation, within the four corners of conformity with the
Statute and thus to salvage it as a valid legal declaration.

Moreover, the particular reservation now at issue is not one that
is contrary to some merely procedural aspect of the Statute. It is
contrary to one of its basic features. It is at variance with the
principal safeguard of the system of the compulsory jurisdiction of
the Court. Without it, the compulsory jurisdiction of the Court
being dependent upon the will of the defendant party, expressed
subsequent to the dispute having been brought before the Court,
has no meaning. Article 36 (6) is thus an essential condition of
the system of obligatory judicial settlement as established in the
Statute. That provision was inserted in the Statute with the
deliberate intention of providing an indispensable safeguard of
the operation of the system. Article 36 (2) speaks of the recognition
by the parties to the Statute of the “compulsory” jurisdiction of
the Court. But there is no question of compulsory jurisdiction if,
after the dispute has arisen and after it has been brought before
the Court, the defendant State is entitled to decide whether the
Court has jurisdiction. ;

*
* *

Reference may be made to two arguments adduced with the
object of bringing the ‘automatic reservation” within the orbit of
conformity with Article 36 (6) of the Statute: In the first instance,
it has been said that if the Court declines jurisdiction by reference to
the “automatic reservation” it is actually, in full conformity with
Article 36 (6), making a decision on the question of its jurisdiction.
This argument is of a verbal character. For in that case it is not
the Court which makes the actual decision on the question of its
jurisdiction. The decision is made by the defendant Government of
Norway. The Court merely registers it. Moreover, the Court says
so in its Judgment. It states in effect that its task is confined to
registering the decision of the defendant State—a decision which
it is entitled to make by virtue of the operation of reciprocity.

The second argument intended to show that the French reser-
vation is not contrary to Article 36 (6) of the Statute is as follows:
If a Government, in conformity with its reservation, has made the
determination that a matter is essentially within its national
jurisdiction, then there is no dispute as to the question of juris-
diction. For the fact that the Government concerned has made that
determination is not in dispute and, therefore, it would seem that

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the question of Article 36 (6) has no relevance in this connection;
at most, the application of Article 36 (6) is confined to registering
the fact that the determination has been made by the defendant
State. This argument is, once more, of a dialectical character.
For what is actually the position? A Government brings a case
before the Court and maintains in its Memorial that the subject
of the dispute is one of international law. The defendent State
asserts in its Preliminary Objections that in its opinion that matter
is essentially within its domestic jurisdiction. There is thus a
dispute between the Parties on the question of the jurisdiction of
the Court. However, having regard to the “‘automatic reservation”,
that dispute cannot be determined by the Court. It is determined
by the Government concerned. This is exactly the position in the
present case. If we look at the substance of the matter, there is
little doubt that the reservation is based on the intention—and
has the effect of —divesting the Court of the power conferred upon
it by Article 36 (6).

2. Is the “automatic reservation” consistent with the requirements of
a legal obligation to submit to the jurisdiction of the Court ?

I have given reasons why I consider that the “automatic reser-
vation’’, inasmuch as it embodies the claim of one party to make
a decision, binding upon the Court, with regard to the contested
question of its jurisdiction is invalid as being contrary to the
Statute of the Court.

I arrive at the same conclusion on the second—and different—
ground, namely, that having regard to the formulation of the
reservation of national jurisdiction on the part of the French
Government the Acceptance embodying the ‘‘automatic reser-
vation” is invalid as lacking in an essential condition of validity
of a legal instrument. This is so for the reason that it leaves to the
party making the Declaration the right to determine the extent
and the very existence of its obligation. The effect of the French
reservation relating to domestic jurisdiction is that the French
Government has, in this respect, undertaken an obligation to the
extent to which it, and it alone, considers that it has done so. This
means that it has undertaken no obligation. An instrument in
which a party is entitled to determine the existence of its obligation
is not a valid and enforceable legal instrument of which a court
of law can take cognizance. It is not a legal instrument. It is a
declaration of a political principle and purpose.

It is irrelevant for the purpose of the view here outlined whether
the instrument of acceptance of the obligation of the Optional
Clause is a treaty or some other mode of creating obligations. In the
Anglo-Iranian Ou Company case the Court observed that ‘the
text of the Iranian Declaration is not a treaty text resulting from
negotiations between two or more States” but that “it is the result
of unilateral drafting by the Government of Iran” (7.C.]. Reports

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1952, p. 105). The statement means no more than that the declara-
tion is the result not of negotiations but of unilateral drafting.
Whether it is a treaty or a unilateral declaration, it is—if it is to
be treated as a legal text providing a basis for the jurisdiction of
the Court—a manifestation of intention to create reciprocal rights
and obligations. It will be noted that Article 36 (2) refers to the
acceptance of the jurisdiction of the Court in relation “to any other
State accepting the same obligation”. In fact there is no difficulty
in visualizing the Declaration of Acceptance as an accession to a
multilateral treaty in the same way as, in the case of various
conventions concluded under the auspices of the United Nations,
Governments accede to a text established by the General Assembly.
However that may be, the acceptance of the Optional Clause is an
instrument purporting to bring about, as between the accepting
State and any other State which has accepted or may accept that
text, reciprocal rights and obligations. If the acceptance does not,
in law, amount to an assumption of an obligation effectively
binding upon the Government concerned, it is not a valid instru-
ment upon which the accepting State can rely and of which the
Court can take cognizance. If a Government declares that it
accepts the compulsory jurisdiction of the Court unless, in cases
which cover potentially the entire field of possible disputes, it
determines, after the dispute has come before the Court, that the
Court has no jurisdiction, then the declaration thus made consti-
tutes no legal undertaking and cannot be treated as a legal instru-
ment constituting an undertaking.

The proposition here advanced—namely, that an undertaking in
which the applicant party reserves for itself the exclusive right to
determine the extent or the very existence of its obligation is not
a legal undertaking—is so self-evident as a matter of juridical
principle that it is not necessary to elaborate this point by showing
it to be a generally recognized principle of law which the Court is
authorized to apply by virtue of Article 38 of its Statutes. It is a
general principle of law as it results from the legislation and practice
of courts in various countries in the matter of contracts and other
legal instruments. These are treated as invalid whenever the object
of the obligation is reserved for the exclusive determination of the
party said to be bound by the obligation in question. (Reference
may be made here to the position in French law as summarized in
the leading treatise by Planiol and Ripert. They state, when
dealing with the general conditions of the validity of the contract,
that the freedom of the party to determine the object of its obliga-
tion negatives the legal nature of the agreement {Traité pratique
de droit civil français, vol. vi, 2nd ed., 1952, Section 220: ‘‘Déter-
mination de l’objet’’). In dealing with so-called potestative con-
ditions, they refer to purely potestative conditions dependent
upon the will of the debtor and covered by Article 1174 of the Civil

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Code which provides that ‘an obligation is null if contracted
under a potestative condition on the part of the obligor” (cbid.,
vol. vii, Section 1028). It is not desirable to prolong this
Opinion by an examination of English law and of the law of the
United States of America on the question. With regard to the latter,
reference may be made to the leading treatise on the subject,
namely, Williston’s “On Contracts” (revised edition, vol. i (1936),
§ 43) where, in the light of numerous judicial decisions, the freedom
of a party to determine the object of its obligation is represented
as negativing the legal nature of the agreement. The importance
attached to the necessity of a clear determination of the subject-
matter of the obligation may be seen from the fact that French
courts have held that a contract providing that a party shall be
entitled to purchase goods in accordance with a price to be agreed
separately is ineffective and unenforceable. In some other countries
the courts have held that in such cases reasonable terms are to be
fixed by the courts—a solution which, in a different sphere, is in
the present case excluded by the terms of the automatic French
reservation.)

That general principle of law is, in turn, no more than a principle
of common sense. Applied to the present case, that principle
signifies that if the element of legal obligation is non-existent or
negligible it must follow that the instrument is not a legal instrument
upon which a State can rely as a matter of right for the purpose
of invoking the jurisdiction of the Court. Instruments—whether
by way of treaties, unilateral declarations, and other texts—
cognisable before a court of law and relied upon for obtaining
redress must be instruments creating legal obligations. It is irre-
levant for this purpose that, having regard to public opinion, an
enlightened State is not likely to invoke any such reservation
capriciously, unjustifiably, and in bad faith. These are expec-
tations which may or may not materialize. The decisive factor is
that the State concerned is not willing to leave a decision on the
question to the impartial judgment of the Court but that it insists
on its own determination of the issue. Neither is it feasible to try
to inject a legal element into the Declaration thus formulated by
using phraseology such as that the undertaking in question is
binding subject to a resolutive condition dependent upon the pro-
mising party. Upon analysis that phrase means no more than that
the undertaking is binding so long as the dispute has not been
brought before the Court but that its binding force becomes a
matter of discretion of the defendant State once the Court has been
seised of the dispute.

It may be argued that, after all, the interpretation of disputed
provisions of treaties is not, in the absence of agreement, subject to
the compulsory jurisdiction of international courts and that never-
theless that fact does not deprive the treaties in question of their
character as binding legal instruments. The answer is that in these

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treaties the object of the obligation is determined and that neither
party is accorded the right of unilateral determination which the
other party is bound to accept. Moreover, in the present case the
absence—the deliberate exclusion—of the jurisdiction of the Court
refers to the very ascertainment of the jurisdiction ostensibly
conferred upon it in what purports to be a legal text.

*

*

I have given reasons why, inasmuch as the French Declaration
of Acceptance leaves it to the declaring Government to determine
both the existence and the extent of the obligation undertaken by
France, it does not constitute a legal obligation essential to the
validity of a legal text. I will now consider whether there are any
factors which may legitimately mitigate the apparent rigour of
these consequences.

It might be said that matters which are essentially within
national jurisdiction constitute only one part of the potential
number of controversies which may come before the Court; that
with regard to others the element of legal obligation fully subsists;
and that therefore the Acceptance as a whole may still be capable
of being regarded as a valid legal instrument. There is little persua-
sive force in any such argument. The reservation of matters essen-
tially within the domestic jurisdiction of a State as understood by
that State is so wide as to cover, at the option of the State concerned,
practically all disputes in which it may be involved.

For, in the first instance, it will be noted that the French reser-
vation in issue refers not to matters which are according to inter-
national law exclusiveiy within the domestic jurisdiction of the State,
but to matters which are essenizally within the domestic jurisdiction.
There are matters which have often been considered as being
essentially within the domestic jurisdiction of States but which,
having become regulated by treaty or custom, have ceased to be
so—an aspect of the question for which the Advisory Opinion of
the Permanent Court of International Justice in the case of Tunis
and Morocco Nationality Decrees provides an instructive and
authoritative illustration. Tariffs, immigration, treatment of aliens
and citizens in national territory, internal legislation generally—all
those matters have been claimed to be essentially within the domes-
tic jurisdiction of States. It is not necessary for me to express an
opinion on the subject. However, even if that claim is admitted,
those are not necessarily matters which according to international
law are exclusively within the domestic jurisdiction of the State—
though, as stated, they have often been described as being matters
of domestic jurisdiction or essentially of domestic jurisdiction.
Practically everv aspect of the conduct of the State mav be, prima

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facie, within that category for the reason that normally the State
exercises its activity within its national territory, or, on the high
seas, in relation to its ships which for some purposes are considered
by States to form part of its territory. In the Lotus case the Court
was prepared to base its decision, to some extent, on the view that
the ship affected was Turkish territory and that the offence was
therefore committed in Turkey. For these reasons it is possible for
a State to maintain, without necessarily laying itself open to an
irresistible charge of bad faith, that practically every dispute con-
cerns a matter essentially within its domestic jurisdiction. Most
Judgments given by this Court and its predecessor—with the
exception of those concerned with territorial disputes—have been
given in relation to matters bearing on the activity of the State
within its jurisdiction and related to its national legislation and
administration. These are the typical occasions giving rise to State
responsibility. This aspect of the question is elaborated in more
detail in the examination, which follows, of the power of the Court
to review the determination made by a Government in pursuance
of the “automatic reservation”.

Hf thus practically every matter can be plausibly, though not
necessarily accurately, described as a matter essentially within the
domestic jurisdiction of the State concerned and if that State is the
sole judge of the question, it is clear that, as the result, the element
of legal obligation is reduced to a vanishing point.

*
* *

I will now examine the view that, although a State reserves for
itself the right to determine whether a matter is essentially within
its domestic jurisdiction, such determination must be effected in
accordance with the legal obligation to act in good faith and that
to that extent there is in existence a valid legal obligation and a
valid legal instrument. I myself expressed a view to that effect
in my Report on the Law of Treaties which I submitted in 1953
as member of the International Law Commission. In the light
of further study of this question in connection with the present
case, I do not feel it possible to adhere to that view. The legal
obligation of a Government to avail itself of its freedom of action
in a manner consistent with good faith has a meaning, in terms of
legal obligation, only when room is left for an impartial finding
whether the duty to act in accordance with good faith has been
complied with. But in the case now before the Court any such
possibility has been expressly excluded. The Court has no power
to give a decision on the question whether a State has acted in good
faith in claiming that a dispute covers a matter which is essentially
within its domestic.jurisdiction. If the Court were to do so, it would

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be arrogating to itself a power which has been expressly denied
to it. Unquestionably, the obligation to act in accordance with
good faith, being a general principle of law, is also part of inter-
national law. The Governments which have appended the ‘“auto-
matic reservation’ have not questioned their legal obligation to
invoke it in good faith, that is to say, not capriciously and arbitrarily.
But it is abundantly clear from the evidence which is generally
available that the authors of the ‘‘automatic reservation” have
reserved for the Governments concerned the right to judge whether
in invoking it in a particular case they have complied with the
obligation to act in good faith. They have repeatedly declared that
their own sense of international duty and propriety, public opinion
within and outside their countries, and their reputation and prestige
in the world would constitute a restraining factor of great potency in
shaping their decision. But they have denied to the Court the power
to determine the legality of that decision from the point of view of
the obligation to act in good faith or otherwise. They have reserved
that power to themselves.

For this reason I cannot accept as accurate the view expressed
in the following terms in paragraph 26 of the Norwegian ‘‘Prelimi-
nary Objections’: “Of course, such a reservation must be inter-
preted in good faith and should a government seek to rely upon it
with a view to denying the jurisdiction of the Court in a case which
manifestly did not involve a ‘matter which is essentially within the
the national jurisdiction’ it would be committing an abus de droit
which would not prevent the Court from acting.’’ The Court has no
such power. It cannot arrogate to itself the competence—which
has been expressly denied to it—to find that the assertion of the
defendant State that a matter is essentially within its domestic
jurisdiction is so extravagant and so arbitrary as to amount to an
action in bad faith and to an abuse of right, with the result that
the Court is entitled to ignore or to override the determination
thus made. As already stated, in view of the comprehensiveness of
the term “matters essentially within domestic jurisdiction’’, it is
not easy to conceive situations of any such obviousness. It is not
certain that a State would be acting flagrantly and irrefutably
in disregard of the canons of good faith if it were to determine
most disputes as coming within its domestic jurisdiction.

The question of the obligation to act in good faith arises only in
relation to legitimate expectations of the other party. But there is
only a nominal degree of legitimate expectation in relation to an
obligation, in regard to a potentially most.comprehensive category of
disputes, as to which the party undertaking it expressly declares in
advance that it is free to determine both the existence and the degree
of its obligation. As already stated, the attitude of a Government in
most disputes is as a rule adopted in pursuance of its internal
legislation or other form of authorization determined by its national
law. To that extent it is arguable—perhaps inaccurately but not

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necessarily extravagantly so—that any dispute arising in this
connection is essentially a matter of domestic jurisdiction. Also,
practically all disputes involving an allegation of a breach of an
international duty, whether under a treaty or under customary
international law, arise out of events occurring within the territory
of that State. In that sense it may be claimed, with or without
good reason, that they are matters essentially within the national
jurisdiction of the State. A dispute relating to the jurisdictional
immunities of foreign States or their diplomatic agents may be
asserted to fall within that category—especially if its subject-
matter is covered by national legislation or the jurisprudence of
national courts. A defendant State may allege that, for the latter
reason, a dispute concerning its domestic legislation affecting the
continental shelf or parts of the high seas relates to a matter within
its national jurisdiction. The only disputes which, it might appear,
are outside that category are territorial disputes. But even that is
not certain. In fact it has been suggested that territorial disputes
pertain to matters of domestic jurisdiction. In the communication
addressed on May 4th, 1955, by the Government of Argentina to
the United Kingdom in the matter of disputed sovereignty over
certain Antarctic territories one of the reasons adduced in support
of the refusal of the former Government to submit the issue to this
Court was that the Government of the United Kingdom had, in
its acceptance of the Optional Clause, itself excluded from the
competence of the Court questions within its exclusive jurisdiction.
The contention that a territorial dispute involves a matter within
the domestic jurisdiction of a State may be farfetched, but has
the Court been given the power to say that any such assertion is
obviously in bad faith, that it constitutes an abuse of a right, that
it must be ignored or overridden, and that the Court has jurisdiction
notwithstanding the determination to the contrary by the State in
question ?

Any attempt to embark upon the examination of the question
whether a Government has acted in bad faith in determining that a
matter is essentially within its domestic jurisdiction may involve
an exacting enquiry into the merits of the dispute—an enquiry so
exacting that it could claim to determine, with full assurance, that
the juridical view advanced by a Government is so demonstrably
and palpably wrong and so arbitrary as to amount to an assertion
made in bad faith. Only an enquiry into the merits can determine
that although an assertion made by the defendant Government is
not legally well-founded it is nevertheless reasonable; or that
although it is not reasonable, it is not wholly arbitrary. The Court
has no power to make such determination.

The ‘‘automatic reservation” is couched in terms so comprehen-
sive as to preclude the Court from reviewing it or interpreting it

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away not only by reference to any assertion of abuse of a right by
the defendant State but also in any other way. Thus, for instance,
it is not open to the Court to disregard that reservation by reference
to some such argument as that the right of exclusive determination
pertains only to matters which are “essentially within domestic
jurisdiction”; that a matter which is clearly governed by inter-
national law, because of international custom or treaty, is not essen-
tially within the domestic jurisdiction of a State; and that, therefore,
such matters are neither within the scope of the reservation nor
within the power of the accepting State to determine unilaterally
whether the dispute is within the domestic jurisdiction. It is not
easy to find a legal limit to the right of the accepting State which
has appended a reservation of this kind to decline the jurisdiction
of the Court. That right seems to be unqualified. So is the inability
of the Court to review the attitude of the Government in question.
That very absence of qualification is expressive of the absence of
any element of legal obligation implicit in a reservation thus
formulated.

Having regard to the preceding observations I am of the view
that the right of the accepting State to determine whether a matter
is essentially within its domestic jurisdiction makes the extent and
the very existence of its obligation dependent upon its will; that
the subject-matter of such determination may cover practically all
disputes; that the Court has no power to disregard a determination
thus made on the ground that it has not been made in good faith
or an any other ground; and that the reservation of domestic juris-
diction thus formulated is therefore invalid inasmuch as it deprives
the Acceptance of the essential element of legal obligation.

3. Can the “automatic reservation” be separated from the Acceptance
as such ?

I have come to the conclusion that the ‘automatic reservation”
relating to matters deemed by the Government of France to be
essentially within her national jurisdiction is invalid for the double
reason that it is contrary to the Statute of the Court and that it
deprives the Acceptance of the indispensable element of legal
obligation.

If the clause of the Acceptance reserving to the declaring Govern-
ment the right of unilateral determination is invalid, then there are
only two alternatives open to the Court: it may either treat as
invalid that particular part of the reservation or it may consider
the entire Acceptance to be tainted with invalidity. (There is a
third possibility—-which has only to be mentioned in order to be
dismissed—namely, that the clause in question invalidates not the
Acceptance as a whole but the particular reservation. This would
mean that the entire reservation of matters of national jurisdiction

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would be treated as invalid while the Declaration of Acceptance as
such would be treated as fully in force.)

As stated, the first possibility is that the particular condition
attached to the reservation—namely, the words “as understood
by the French Government’’—should be treated as non-existent
and ignored while the remainder of the reservation and of the
Acceptance as a whole be treated as fully valid and subsistent.
Legal practice and doctrine within the State are familiar with
situations in which a contract or any other legal instrument contains
a clause which the law treats as invalid or unenforceable without
necessarily bringing about the nullity of the contract or instrument
as a whole. In those cases the provision in question is severed—
is treated separately—from the rest of the text. This is not always
possible. Much depends on whether that provision is an essential
part of the instrument in question. In the international sphere the
problem of severance of provisions of treaties and other inter-
national instruments has been frequently discussed by writers
and occasionally in judicial decisions—in particular in connection
with the question of termination of treaties on the ground of non-
performance by one of the parties or as the result of war or some
other change of circumstances. Early writers considered that every
single provision of a treaty is indissolubly linked with the fate of
the entire instrument which, in their view, lapses as the result of
the frustration or non-fulfilment of any particular provision,
however unimportant and non-essential. This is not the modern
view. Neither is it the view which has secured the adherence of
modern governmental and judicial practice, including that of the
Permanent Court of International Justice. The latter on a number
of occasions declined to treat individual provisions of a treaty as
being indissolubly connected and interdependent. (See, for instance,
Free Zones case, Series A/B, No. 46, p. 140, in which the Court
treated Article 435 of the Treaty of Versailles as a “‘complete whole”
independent of the rest of the Treaty; and the Advisory Opinions
_ relating to the competence of the International Labour Organisation,
Series B, No. 2, pp. 23, 24, and Series B, No. 13, p. 18, with regard to
the independent position of Part XIII of the Treaty.) In a different
sphere, the Opinion of this Court in the case of the Reservations to
the Genocide Convention shows that there may be reasonable limits
to the notion of the indivisibility of a treaty and that some of its
provisions may not be of a nature essential to the treaty as a whole.

International practice on the subject is not sufficiently abundant
to permit a confident attempt at generalization and some help
may justifiably be sought in applicable general principles of law
as developed in municipal law. That general principle of law is that
it is legitimate—and perhaps obligatory—to sever an invalid
condition from the rest of the instrument and to treat the latter as
valid provided that having regard to the intention of the parties

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and the nature of the instrument the condition in question does not
constitute an essential part of the instrument. Utile non debet per
inutile viiari. The same applies also to provisions and reservations
relating to the jurisdiction of the Court. It would be consistent
with the previous practice of the Court that it should, if only
possible, uphold its jurisdiction when such a course is compatible
with the intention of the parties and that it should not allow its
jurisdiction to be defeated as the result of remediable defects of
expression which are not of an essential character. If that principle
were applied to the case now before the Court this would mean that,
while the French acceptance as a whole would remain valid, the
limitation expressed in the words ‘‘as understood by the Govern-
ment of the French Republic” would be treated as invalid and non-
existent with the further result that Norway could not rely on it.
The outcome of the interpretation thus adopted would be somewhat
startling inasmuch as it would, in the present case, favour the very
State which originally made that reservation and defeat the objec-
tion of the defendant State—an aspect of the question commented
upon in another part of this Opinion. That fact need not necessarily
be a decisive reason against the adoption of any such interpretation.

However, I consider that it is not open to the Court in the present
case to sever the invalid condition from the Acceptance as a whole.
For the principle of severance applies only to provisions and
conditions which are not of the essence of the undertaking. Now
an, examination of the history of this particular form of the reser-
vation of national jurisdiction shows that the unilateral right of
determining whether the dispute is essentially within domestic
jurisdiction has been regarded by the declaring State as one of the
crucial limitations—perhaps the crucial limitation—of the obligation
undertaken by the acceptance of the Optional Clause of Article 36
of the Statute. As is well known, that particular limitation is,
substantially, a repetition of the formula adopted, after consider-
able discussion, by the Senate of the United States of America
in giving its consent and advice to the acceptance, in 1946, of the
Optional Clause by that country. That instrument is not before
the Court and it would not be proper for me to comment upon it
except to the extent of noting that the reservation in question was
included therein having regard to the decisive importance attached
to it and notwithstanding the doubts, expressed in various quarters,
as to its consistency with the Statute. It will also be noted that some
governments, such as those of India and the Union of South Africa,
have attributed so much importance to that particular formulation
of the reservation that they cancelled their previous acceptance of
the Optional Clause in order to insert, in a substituted Declaration
of Acceptance, a clause reserving for themselves the right of uni-
lateral determination. To ignore that clause and to maintain the

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binding force of the Declaration as a whole would be to ignore an
essential and deliberate condition of the Acceptance.

From the point of view of the Government concerned there were
weighty reasons why, anxious to frame its acceptance of the Optional
Clause and its reservations thereto in such a manner as to preserve
full freedom of national decision in the matter of submission of
future disputes to the Court, it attached importance to formulating
this particular reservation. In a significant passage, cited in para-
graph 25 of the Preliminary Objections of Norway, the Rapporteur
of the Committee for Foreign Affairs of the French Chamber said
in relation to the reservation in question: “The French sovereingty
is not put in issue and its rights are safeguarded in all spheres and
in all circumstances.’’ In fact, as is suggested in another part of
this Opinion, there are only few disputes which cannot, without
giving rise to an irrefutable imputation of bad faith, be brought
within the orbit of the assertion that they pertain to a matter
essentially within the domestic jurisdiction of the State concerned.
Similarly, as already stated, there is but little substance in the
view that the freedom of determination by the State interested is
effectively limited for the reason that it must be exercised in
good faith and that the Court is the judge whether it has been so
exercised. The Court is therefore confronted with the decisive fact
that the Government in question was not prepared to subscribe
or to renewits commitment of compulsory judicial settlement unless
it safeguarded in that particular way its freedom of action. That
particular formulation of the reservation is an essential condition
of the Acceptance as a whole. It is not severable from it. The
phrase ‘‘as understood by the Government of the French Republic”
must be regarded as being of the very essence of the undertaking
in question. It is not a collateral condition which can be separated,
ignored and left on one side while all others are given effect. The
Acceptance stands and falls with that particular reservation and
that particular formulation of the reservation. Without these
words the Government which made that reservation would not have
been willing to accept the commitments of the compulsory juris-
diction of this Court.

The Court cannot properly uphold the validity of the Acceptance
as a whole and at the same time treat as non-existent any such
far-reaching, articulate and deliberate limitation of its jurisdiction.
To do so would run counter to the established practice of the Court—
which, in turn, is in accordance with a fundamental principle of
international judicial settlement—that the Court will not uphold its
jurisdiction unless the intention to confer it has been proved
beyond reasonable doubt. The Court certainly cannot assume
jurisdiction if there is a clearly expressed intention to deny it in
specified circumstances. This means that it would not be possible
for the Court to disregard that part of the reservation in question
which claims for the State concerned the right to determine its

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application. It is not possible for the Court to do otherwise than
to regard this particular part of the reservation, so specifically
formulated, as constituting an essential and not severable part
of the instrument of acceptance. It might perhaps be possible—
I express no view on the subject—to disregard and to treat as
invalid some other reservation which is contrary to the Statute
and thus to maintain the Acceptance as a whole. This is not possible
with regard to a reservation directly referring to and excluding the
jurisdiction of the Court. On the other hand, as I pointed out, it is
not possible for the Court to act affirmatively upon that part of the
reservation seeing that it is contrary to the Statute. It is thus not
possible for the Court, while upholding the validity of the Accept-
ance, either to act upon that part of the reservation or to ignore it.
The inescapable solution of the dilemma is to treat the entire
Acceptance as invalid.

3% * *

This being so, my conclusion on this aspect of the question is
that the reservation of national jurisdiction as qualified by the
French Government is an essential part of its acceptance of the
obligations of the Optional Clause; that it cannot be severed from
the Acceptance as a whole; that as it is contrary to the Statute
of the Court and as it deprives the Acceptance of the requisite
element of legal obligation it must be held to be invalid and to
invalidate the Acceptance as a whole; and that, there being no
valid Acceptance, there is no instrument upon which France can
rely and which, in the absence of agreement of Norway to submit
to the jurisdiction of the Court apart from the Optional Clause,
can provide a basis for the jurisdiction of the Court.

* * *

It is necessary in this connection to refer to the Judgment of
the Court in the case concerning Rights of Nationals of the United
States of America in Morocco. In that case, brought before it by an
application based on Article 36 (2) of the Statute, the Court exercised
jurisdiction although the Acceptances both of the applicant and the
defendant State contained the “automatic reservation”. To what
extent is the Court now bound by the fact that it assumed juris-
diction in that case? Upon investigation that case proves irrelevant
for the present issue.

In the first instance, in the case of the Rights of Nationals of
the United States in Morocco the jurisdiction of the Court was not
challenged by the defendant State; the latter did not invoke the
“automatic reservation”. There was, therefore, no direct occasion
for the Court to embark upon an examination of the validity of that
reservation and of the Acceptance as a whole.

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Secondly, although in that case France relied in her Application
upon the Optional Clause of Article 36 (2) of the Statute, the juris-
diction of the Court was in fact exercised not on the basis of the
Optional Clause but on the principle of forum prorogatum, i.e. on
what was actually a voluntary submission independent of the source
of jurisdiction originally invoked by the applicant party. The
Government of the United States agreed to the jurisdiction of the
Court without admitting that the Court was competent on the
basis of the Optional Clause. The relevant passage of the Counter-
Memorial of the United States was as follows: ‘The United States
Government does not raise any Jurisdictional issue in the proceeding,
even though it does not concur in the allegations with respect to the
compulsory jurisdiction of the Court which have been presented
by the French Government, it being its understanding that its
abstaining from raising the issue does not affect its legal right to
rely in any future case on its reservations contained in its acceptance
of the compulsory jurisdiction of the Court.” (Case concerning Rights
of Nationals of the United States of America in Morocco: Pleadings,
Oral Arguments, Documents, vol. i, p. 262.) This statement is of
significance seeing that in the course of the written proceedings
the Government of the United States of America withdrew its
Preliminary Objection which it had raised on account of the insuf-
ficient clarification of the identity of the Parties. That Objection
was withdrawn as soon as it became clear that both France and
Morocco would be bound by the Judgment of the Court (zd7d.,
vol. ii, pp. 424-434). It is thus clear that in that case the Court
exercised jurisdiction not only because—unlike in the present case—
the defendant Party agreed to it but also because it agreed to it
on the basis other than the Declaration of Acceptance. The dispute
now before the Court is the first case—an entirely novel case—in
which a Party has claimed the right, denied to it by Article 36 (6)
of the Statute, to substitute itself for the Court in the matter of a
decision as to its jurisdiction. This being so, I need not discuss the
question as to the extent to which the Court would be bound by the
precedent of the case of the United States Nationals in Morocco,
if that case were relevant to the issue now before the Court.

Û . * D
* *

It is essential to examine the view that it is not open to the
Court to treat the French Acceptance as invalid seeing that Norway
has not put forward any such assertion and that by relying, in
view of the principle of reciprocity, on the French reservation she
implicitly recognized the validity of the French Acceptance. I am
unable to agree with that view. It would be open to Norway, by
consenting to the jurisdiction of the Court irrespective of the
French Acceptance, to confer competence upon the Court by way

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of forum prorogatum. However, Norway has not submitted to the
jurisdiction of the Court in any way. She has challenged it on
various grounds. This being so, the fact that she has not raised
the particular issue of the validity of the French Acceptance as a
whole cannot endow with validity an instrument otherwise invalid.
Even if Norway had agreed to the jurisdiction of the Court, it
would not have followed that the Court could have exercised it on
the basis of the French Declaration of Acceptance. The defendant
State cannot, by refraining from raising objections, grant dispen-
sation from invalidity. No one can do it—including, perhaps, the
Court itself. The Court must have before it as a basis of its juris-
diction a valid text. It must ascertain the existence of that text.
In the past it has, when occasion arose, raised the question of its
jurisdiction proprio motu (see e.g. the case of the Administration of
the Prince von Pless, Series A/B, No. 52, p. 15). Itis open to the Court,
for that purpose, to ascertain the views of the parties on the subject
by availing itself of the useful provision of its Rules which enable it to
address questions to the parties at any stage of the oral proceedings.

As stated, the invalidity is inherent in the Declaration of Accept-
ance formulated in that way. It is not the case that the Declaration
is valid until an occasion arisesin which that particular reservation is
relied upon by one party and challenged by the other with the
result that its inconsistency with the Statute is thus brought to
light. The Declaration is invalid ad initio. Brief reflection shows the
irrelevance of the fact that neither party has challenged the validity
of the Declaration and that the Court must therefore act upon it.
For, clearly, the State which has formulated the ‘‘automatic
reservation” is not likely, or entitled, to question it. The respondent
State which relies upon it—-by virtue of reciprocity (as Norway
has done in the present case)—is not interested in challenging
its validity. It finds it an effective, though possibly somewhat
embarrassing, weapon of defence—in some cases the only effective
means of defence unless it decides to steer the uncertain course
of invoking simultaneously and by way of alternative submissions
both the invalidity of the reservation and the reservation itself.
For these reasons no importance can reasonably be attached to
the fact that the validity of the “automatic reservation” has not
been challenged by either party. Seeing that one party is respons-
ible for its inclusion in its Declaration of Acceptance and that the
other Party finds it necessary or imperative to rely on it, I can
see but little force in the argument pointing to the fact that the
validity of that reservation has not been put in issue by either party.

*
* co

Reference must be made in this connection to the argument
pointing to the existence of certain treaties of obligatory arbitration

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concluded in the past which, expressly or by implication, conferred
upon the signatories the right to determine the arbitrability of a
particular dispute. The arbitration treaties which were concluded
before the First World War and which contained the then customary
reservations of national honour and independence were generally
regarded as recognizing by implication such right of unilateral
determination. In some cases that right was expressly reserved.
That argument is, in any case, irrelevant seeing that those treaties
were not subject to the limitation of Article 36 (6) of the Statute
of the Court. Were they valid from the point of view of the question
whether they contained effective legal obligations? The question is,
once more, of an academic character seeing that these treaties were
not concluded within the framework of any organic statute of a
tribunal possessing jurisdiction to determine their validity. They
were devoid of an element of effective legal obligation. They pro-
vided a basis for a compromis if the parties so wished. They were
never applied against the will of the defendant State. While it may
thus be pedantic to enquire into the legal validity of the treaties in
question in circumstances wholly different from the problem now
before the Court, their practical insignificance does not seem to be
open to doubt. With isolated exceptions, they were concluded at a
time when a system of obligatory arbitration existed in name only.

Above all, treaties of obligatory judicial settlement providing for
the right of unilateral determination of the jurisdiction of the
tribunal virtually disappeared after the First World War following
upon the establishment of the Permanent Court of International
Justice. In practically all—and certainly the principal—treaties of
arbitration and judicial settlement concluded after the First World
War the right to determine the disputed jurisdiction of the tribunal
was conferred upon the tribunal itself (as, e.g., in the Swiss-German
Treaty of 3 December, 1921, Article 4; or in the various Locarno
Arbitration Treaties of 16 October, 1925—.e.g., Article 16 of
the Treaty between Germany and Poland). The important multi-
lateral treaties of obligatory judicial settlement concluded after the
First and Second World Wars include specific provisions to that
effect—as does, for instance, Article 41 of the General Act for the
Pacific Settlement of International Disputes of 26 September 1928
and the Pact of Bogota of 30 April 1948. Article V of the latter treaty
provides as follows: ‘“‘The aforesaid procedures may not be applied
to matters which, by their nature, are within the domestic juris-
diction of the State. [fthe parties are not in agreement as to whether
the controversy concerns a matter of domestic jurisdiction, this
preliminary question shall be submitted to decision by the Inter-
national Court of Justice, at the request of any of the parties.”
Article 38 of the most recent multilateral treaty of obligatory
judicial settlement—the European Convention of 29 April 1957 for
the Peaceful Settlement of Disputes—is to the same effect. An
examination of over two hundred treaties in the volume published

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in 1949 by the United Nations and entitled ‘Systematic Survey of
Treaties for the Pacific Settlement of International Disputes,
1928-1948”, reveals that only a very small number of treaties—
perhaps not more than six—contain a reservation of the right of
unilateral determination. The express acknowledgment of the
power of the Court to determine its jurisdiction in cases in which
that jurisdiction is disputed has thus become, even apart from the
Statute of the Court, a uniform feature of the practice of States.
The “automatic reservation”, should it continue to be applied
by the Court directly or indirectly, will arrest or reverse that trend
which is an essential condition of any true system of obligatory
judicial settlement.

*
* *

I must now consider some of the implications of a decision of the
Court holding that a Declaration of Acceptance which includes the
“automatic reservation” is invalid. Any such decision has a bearing
upon Declarations, similarly formulated, of a number of other
States. These now include the United States of America, Mexico,
Pakistan, India, South Africa, Liberia, and, perhaps, to some
limited extent the United Kingdom of Great Britain and Northern
Treland. The latter, in a Declaration made on 18 April, 1957,
excluded from the Acceptance any question ‘which, in the opinion
of the Government of the United Kingdom, affects the national
security of the United Kingdom or of any of its dependent territories’.
Iam conscious of some apprehended consequences of a decision of
the Court holding that the manner in which the Optional Clause has
been accepted by an increasing number of States, traditionally
wedded to the cause of international judicial settlement, has the
effect of rendering their Acceptance invalid. Moreover, that form of
accepting the jurisdiction of the Court has not been confined to the
Optional Clause. It has been followed, under its influence, in some
other texts purporting to provide for the obligatory jurisdiction
of the Court. (See, e.g., the reservation of the United States of
America to the Pact of Bogota: Year Book of the Court, 1947-1948,
p- 144, n. 2. In a series of agreements relating to economic aid and
concluded between the United States of America and some other
States—as, for instance, with China on 3 July 1948—the following
provision occurs: “It is understood that the undertaking of each
Government [providing for the jurisdiction of the Court]... is
limited by the terms and conditions of such effective recognition
as it has heretofore given to the compulsory jurisdiction of the Inter-
national Court of Justice under Article 36 of the Statute of the
Court”: zbtd., 1948-1949, pp. 152-155.)

The circumstance that a decision of the Court may affect Govern-
ments which have had no opportunity to express their view on the

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subject is a cause of concern. It would have been preferable if, in
accordance with Article 63 of the Statute, the Governments which
have made a Declaration in these terms had been given an oppor-
tunity to intervene. Failing that, it is possible for those Govern-
ments to adopt the attitude that, in accordance with Article 59
of the Statute, the authority of the decision of the Court is limited
to the present case and that they are at liberty to assert their
attitude on the matter on another occasion.

In so far as it is within the province of the Court to consider the
purpose of the system of the Optional Clause as provided in Ar-
ticle 36 (2) of its Statute, it is bound to attach importance to the fact
that the “automatic reservation” has tended to impair the legal--and
moral—authority and reality of the Optional Clause. Through the
operation of reciprocity the practice of illusory acceptances must
in the end encompass most declaring Governments including, as in
the present case, those which accepted the Optional Clause without
reservations.

It might be said that to look in that way upon a Declaration of
Acceptance thus formulated is to underestimate its moral value
and to disregard the fact that enlightened Governments are not
likely to invoke the reservation in question lightly and abusively.
Yet, to stress the moral value of the Declaration is to go some wav
in admitting that it is devoid of legal force. Moreover, there is
little substance in the assumption that Governments exhibit
reluctance to invoke reservations to their acceptance of the jurisdic-
tion of international tribunals or that any moral impropriety attaches
to reservations being invoked. It is a good legal right of Govern-
ments to do so. It is seldom that a Government cited before the
Court in pursuance of a unilateral application has admitted the
jurisdiction of the Court as following from the instrument invoked
by the applicant State. In the present case, Norway, which has
accepted the Optional Clause without any reservations, save that
of reciprocity, has not abandoned the right of unilateral deter-
mination which accrues to her b¥ virtue of the French form of
acceptance.

It is difficult to attach importance to the suggestion that an
Acceptance containing the ‘automatic reservation” is not wholly
devoid of legal value seeing that it may at least provide a basis for
the acceptance of the jurisdiction of the Court by way of voluntary
submission through the operation of the principle of forum proro-
gatum. No such basis is required for that purpose. A unilateral
application altogether unrelated to any previous acceptance of the
jurisdiction of the Court is sufficient for that purpose provided that
the defendant State is willing to submit to the jurisdiction of the
Court.

If in law an Acceptance of that nature does not constitute a
text embodying legal obligations then the decision of the Court
in that sense does no more than register a fact; it provides an

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opportunity for any Government so minded to put right a faulty
Declaration of Acceptance; and it assists in arresting a tendency
which threatens to disintegrate that minimum of compromise
which is embodied in the Optional Clause. It is not suggested that
the Court should be guided by a desire to achieve these objects—
however important they may be for the integrity of international
undertakings and the cause of international justice. Neither is it
within the province of the Court to assess the propriety of a practice
according to which a State, while in fact retaining freedom of
action on the matter of submission of disputes to the Court, gains
the moral and political advantages associated with professed ad-
herence to the principle of obligatory judicial settlement. What
the Court must do is to apply the legal principles governing the
matter. It has been said that as States are not at all bound to
accept the jurisdiction of the Court and as their Acceptance is in
the nature of a voluntary sacrifice, it is not fitting to examine it too
closely. The Court cannot be concerned with considerations of this
nature. It cannot weigh the niceties of political advantage. For it
may be argued that, if as the result of such Acceptance States gain
in prestige and reputation while in fact not surrendering their free-
dom of decision, the nature of the sacrifice is not obvious. Also,
while the Government making the ‘automatic reservations”
retains freedom of action, it throws upon the defendant State, which
has not appended any such reservation, the difficult and often
embarrassing responsibility of invoking what, in the eyes of some,
may be an odious and peremptory reservation. The present case has
shown the implications of the resulting situation.

If the Court could legitimately be concerned with issues trans-
cending that immediately before it, it might be considered its duty
to discourage, in so far as it lies with it, the progressive disinte-
gration of the institution of the Optional Clause as evidenced,
inter alia, by the tendency to adopt reservations such as that here
examined. Governments are under no compulsion, legal or moral,
to accept the duties of obligatory judicial settlement. When accept-
ing them, they can limit them to the barest minimum. But the
existence of that minimum, if it is to be a legal obligation, must be
subject to determination by the Court itself and not by the Govern-
ment accepting it. A purported obligation, however apparently
comprehensive, which leaves it to the will of the State to determine
the very existence of the obligation, cannot be the basis of an
instrument claimed to found the jurisdiction of the Court. That
view seems to be drastic and startling only if it is assumed that
principles of law which generally apply in respect of the validity of
texts purporting to create a legal obligation do not apply in the
case of Governments. Any such assumption is inconsistent with
the function of a Court of Justice.

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For the latter reason, the problem involved is of even wider
import than the question of the jurisdiction of the Court. It raises
an issue which is of vital significance for the preservation of its
judicial character. That issue is whether it can be part of the duty
of the Court to administer and to give the status of a legal text to
instruments which in fact do not create legal rights and duties. The
judicial character of the Court may become endangered if it were to
assume the task of interpreting and applying texts which, being
devoid of the element of effective legal obligation, are essentially
no more than a declaration of political purpose. Such danger may be
inherent in any readiness to elevate to the merit of a legal commit-
ment what is no more than a non-committal declaration of intention
to be implemented at the option of the Government concerned.

*
* *

My conclusion is therefore that, having regard to the reservation
relating to matters which are essentially within domestic jurisdiction
as understood by the French Republic, the French Declaration of
Acceptance is invalid for the reason:

(x) That it is contrary to the Statute of the Court;

(2) That it is incapable of giving rise to a legal obligation inasmuch
as it claims, and effectively secures, the right of unilateral deter-
mination of the extent and of the existence of the obligation of
judicial settlement with regard to a comprehensive and indefinite
category of disputes covering potentially most disputes which may
come before the Court;

(3) That the particular qualification of the reservation in question
forms an essential part of the Acceptance and that it is not possible to
treat it as invalid and at the same time to maintain the validity of the
reservation to which it is attached or of the Acceptance as a whole.

Accordingly, in my view the entire French Declaration of Accept-
ance must be treated as devoid of legal effect and as incapable
of providing a basis for the jurisdiction of the Court. It is for that
reason that, in my view, the Court has no jurisdiction over the
dispute. The majority of the Court has reached the same result
by acting upon the “automatic reservation” and the French
Declaration of Acceptance—both of which I consider to be invalid.
However, as the Court has expressly stated that, having regard
to the circumstances before it, its Judgment does not pre-judge
the major issue involved, I feel that a Separate Opinion—as
distinguished from a Dissenting Opinion—meets the requirement
of the case.

(Signed) HERSCH LAUTERPACHT.

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