471

SEPARATE OPINION OF JUDGE ODA

TABLE OF CONTENTS

Pages
OPENING REMARKS. . . . . . . . . . . . . . . . . . . . . . - . . 472
PART I. NICARAGUA’S STANDING AS APPLICANT . . . . . . . . . . . . 473
Chapter 1. Nicaragua’s Declaration of 1929 for acceptance of the Optional
Clause. . . . ee 473
Chapter 2. Article 36, paragraph 5, of the Statute  . . . . . . . . . . 478
Chapter 3. Nicaragua’s position in respect of the Optional Clause. . . . 483
PART IL. EFFECT OF THE SHULTZ LETTER. . . . . . . . . . . . . . . . 489
Chapter 1. New types of reservation . . . . . . . . . . . . . . . . 489
Chapter 2. Termination and modification of the United States Declara-
ton ........ 4.444 ee ee se ee ee 494
Chapter 3. Effect vis-à-vis Nicaragua of the United States termination of its
obligation under the Optional Clause. . . . . . . . . . . . . . . 510
CONCLUSIONS . . . . . . . . . . . . . ee . + . à . + . . . . 513

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OPENING REMARKS

While dissenting on many vital points from the Judgment, I nevertheless
concur in the conclusion the Court has reached in paragraph 113 (1) (c) that
it has jurisdiction to entertain the case solely because I cannot, with
confidence, hold in respect of the 1956 Treaty of Friendship, Commerce
and Navigation between Nicaragua and the United States any view dif-
ferent from the interpretation given by the Judgment.

Yet this Treaty was not mentioned at all in Nicaragua’s Application and
was scarcely discussed during the oral proceedings, except for a single
reference by the Agent to the Treaty as “a subsidiary basis for the Court’s
jurisdiction” ; neither am I confident that the Court has sufficiently satis-
fied itself that a dispute concerning the interpretation or application of this
Treaty — which is of a commercial nature — exists or that, if any dispute
does exist, diplomatic negotiations have been tried and have failed to
adjust it (see Treaty, Art. XXIV, para. 2). Iam afraid that the Court might
seem in danger of inviting a case “through the back door”. So it should be
understood that a case brought under the 1956 Treaty must be more strictly
limited in scope than that brought by Nicaragua’s original Application. In
other words, the present case could be sustained only as far as any vio-
lations of specific provisions of that Treaty are proved.

Furthermore, in depending on this Treaty as one of the bases for juris-
diction, the Court seems implicitly to concede that Article 36, paragraph 2,
read with paragraph 5, of its Statute does not provide a solid foundation. It
is true that in the case concerning United States Diplomatic and Consular
Staff in Tehran the Court based its jurisdiction on two different sources,
but it did so for reasons which have no parallel in the present case, so that
the Judgment’s reference to this alleged precedent constitutes a highly
misleading application of the Court’s jurisprudence.

In view of the unduly short time allowed to Judges in the present case for
expounding their separate or dissenting opinions, I cannot, to my great
regret, cover all the issues over which I am in disagreement with the
Judgment. I confine myself therefore, in the main, to expressing my views,
which are quite contrary to those of the Judgment, with regard to Article
36, paragraph 2, read with paragraph 5, of the Statute of the Court, since
these provisions, which are the basis of the so-called system of the Optional
Clause or of compulsory jurisdiction, raise issues of interpretation and
application that are so important that the future of the Court might well
depend upon them.

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PART I. NICARAGUA’S STANDING AS APPLICANT

Chapter 1. Nicaragua’s Declaration of 1929 for
Acceptance of the Optional Clause

I

Nicaragua became a Member of the League of Nations on 3 November
1920 !. On 13 December of that year it joined the other Members in a
unanimous resolution approving, as amended, the draft Statute of the
Permanent Court of International Justice and providing for a Protocol of
Signature whereby States would declare their “recognition of this Statute”.
The Protocol was so worded as to render this recognition meaningful and
effective by, first, bringing the Statute into force through ratification by the
majority of League Members and, second, securing from League Members
declarations “that they accept[ed] the jurisdiction of the Court in accor-
dance with the terms and subject to the conditions of the above-mentioned
Statute”. The Protocol continued in the following terms :

“The present Protocol ... is subject to ratification. Each Power
shall send its ratification to the Secretary-General of the League of
Nations ; the latter shall take the necessary steps to notify such
ratification to the other signatory Powers. The ratification shail be
deposited in the archives of the Secretariat of the League of Nations.”
(P.C.LJ., Series D, No. 1, 4th ed., p. 7.)

Ratification of the Protocol was thus essential both for the creation of
the Permanent Court and for conferring upon it jurisdiction ratione per-
sonae. It can accordingly be concluded that a State, even if it had parti-
cipated in the resolution of 13 December 1920 and even if it remained a
Member of the League of Nations, could not be held to have accepted the
jurisdiction of the Court in the minimal sense indicated above unless or
until it had both signed and ratified the Protocol, which became open for
signature only three days after the adoption of the resolution.

Nicaragua did sign the Protocol of Signature, but not until 14 September
1929, when it also signed the Protocol relating to the revision of the Statute
of the Court. There is, however, as the Judgment makes abundantly clear,
no evidence that it ever provided an instrument of ratification for deposit
in the archives of the League Secretariat. On the other hand, various
documents submitted to the Court indicate that between 1934 and 1939
Nicaragua internally carried out domestic formalities for the ratification of
the Protocol of the Statute. Externally, on 29 November 1939, the Ministry

! Nicaragua later announced on 26 June 1936 that it would withdraw from the
League, and this withdrawal became effective as of 26 June 1938 (League of Nations,
Official Journal, 17th Year, Nos. 8-9 (1936), p. 923).

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of Foreign Affairs of Nicaragua sent the following telegram to the Secre-
tary-General of the League of Nations :

[English translation}

“Statute and Protocol Permanent Court International Justice The
Hague have already been ratified. Will send you in due course instru-
ment ratification — Relations.”

The Acting Legal Adviser to the League of Nations acknowledged
receipt of the telegram on 30 November 1939, and stated :

“En réponse, je m'empresse de vous informer que le service com-
pétent du Secrétariat se tient à la disposition de votre Gouvernement
pour lui faciliter les formalités relatives au dépôt dudit instrument de
ratification.” (Ann. No. 23 to United States Counter-Memorial.)

The Secretariat of the League of Nations did not, however, receive the
instrument of ratification thereafter. In his letter of 15 September 1942 to
Judge Manley O. Hudson, the Acting Legal Adviser stated :

“We have not received the ratification necessary to complete the
signature of the Court Protocol and at the same time to bring into
force the obligations concerning Article 36. But on November 29th,
1939, the Secretary-General was informed by a telegram that the
Court Protocol was ratified by the President of the Republic of
Nicaragua. We have however never received the instrument of rati-
fication itself, which should have been sent to us. Nicaragua is there-
fore not bound either by the Protocol or by the optional clause.” (Ann.
No. 25 to United States Counter-Memorial.)

Nicaragua’s Memorial (para. 86) concedes that : “The instrument of
ratification of the Protocol of Signature appears not to have been deposi-
ted.” Annex I to the Memorial states :

“In connection with this proceeding, the Government of Nicaragua
has undertaken investigations in the official archives of Nicaragua. To
date, no evidence has been uncovered that the instrument of ratifi-
cation of the Protocol of Signature to the Statute of the Permanent
Court of International Justice was forwarded to Geneva.”

The Agent of Nicaragua stated :

“World War II, which was then in full progress, and the attacks on
commercial shipping may explain why the instruments appear never
to have arrived at the Registry of the Permanent Court.” (Hearing of
8 October 1984.)

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Thus Nicaragua itself seems to recognize that the instrument of ratification
of the Protocol was not deposited, as it should have been, with the Sec-
retariat of the League of Nations.

Nicaragua has suggested that this defect in the process of recognizing the
Statute and accepting the jurisdiction of the Permanent Court of Inter-
national Justice can be attributed to the outbreak of war in Europe in 1939.
However, what is of concern in the present case is not whether the ne-
cessary ratification could have been deposited by any fixed date in 1939.
Even if one acknowledges the serious situation in Europe as from 1939, it is
difficult to suppose that Nicaragua would not, at some time up to 1945,
have been able to cure the defect if it persisted in the intention of becoming
a party to the Statute of the Permanent Court of International Justice.

Il

Nicaragua had thus gone only half way towards “recognition of the
Statute” (in the language of the 1920 resolution) or “acceptance of the
jurisdiction” (in that of the Protocol) when, on 24 September 1929, the
following declaration was made in accordance with the so-called Optional
Clause :

“On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of Interna-
tional Justice.”

Article 36 of the Permanent Court’s Statute provided that such decla-
rations might be made “either when signing or ratifying the Protocol” of
Signature “or at a later moment”. In Nicaragua’s case the moment chosen
was ten days after signature of the Protocol, which strongly suggests that it
fully intended, at that period, to complete all the processes whereby it
would have recognized the Statute and accepted the jurisdiction of the
Permanent Court — accepted it, what is more, as compulsory without
condition. Failing ratification, however, none of this occurred, and the
fulfilment of that intention remained, as we have seen, indefinitely in
suspense. From the viewpoint of legal effectivity, the half-way stage
reached by Nicaragua remained of no account. What effect can after all be
attributed to its recognition as compulsory of a jurisdiction it had not
formally accepted : the jurisdiction of a Court whose Statute it had not
formally recognized ?

In this connection, and even supposing that Nicaragua’s intention was
constant and demonstrable beyond .all doubt, I cannot accept the propo-
sition that that intention outweighed the defect because of the formal
character of the latter. As I have indicated at the outset, ratification of the
Protocol was a stringent requirement without whose fulfilment the Per-
manent Court could have no jurisdiction over Nicaragua. This conclusion

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is reinforced by the very language of the resolution of 13 December 1920,
which had stated in terms that the Permanent Court was to deal solely with
“disputes between the Members [of the League] or States which have
ratified [the Protocol]” or other States which had been given access to the
Court under the second paragraph of Article 35 of its Statute (P.CLJ.,
Series D, No. 1, 4th ed., p. 7). Nicaragua never fell into either category.
Ratification was thus no matter of pure form, and neither was the require-
ment of “sending” the ratification to the Secretary-General, considering
that the possibility of his notifying “other signatory powers” depended
entirely upon its accomplishment. To my knowledge, he has never been
held remiss for not proceeding to the notification upon the strength of the
1939 telegram.

Certainly, at the time of the Permanent Court, there was no doubt at The
Hague that Nicaragua, until it ratified the Protocol, could not be held
bound by its declaration. The Collection of Texts Governing the Jurisdiction
of the Court issued by the Registrar (P.C.L.J., Series D, No. 6, 4th ed., 1932)
made this perfectly clear with a list of mere “Signataires” of the Optional
Clause (on p. 32) followed immediately by one of “Etats liés” (p. 33).
Several States were placed in the first list, but not in the second ; in most
cases because of a self-imposed requirement of ratification of the decla-
ration that had yet to be fulfilled, but in Nicaragua’s case because it had not
ratified the Protocol (ibid., p. 58, n. 5, and table on p. 61). That situation
never changed throughout the life of the Permanent Court, and so there
was never any moment at which Nicaragua’s declaration could be relied
upon.

Nicaragua, be it noted, was not alone in having made its declaration in
advance of the necessary ratification of the Protocol of Signature of the
Statute. Particularly in the early days of the Permanent Court of Interna-
tional Justice, several States, doubtless encouraged by the very wording of
Article 36 of the Statute, made declarations of acceptance of compulsory
Jurisdiction “when signing” the Protocol of Signature, far in advance of its
ratification. Thus Annual Report No. 15 of the Permanent Court of Inter-
national Justice, the last number available prior to 1945, indicates that as
of 15 June 1939 the 1920 Protocol of Signature had been signed by 58
nations, of which nine (United States of America, Argentina, Costa Rica,
Egypt, Guatemala, Iraq, Liberia, Nicaragua and Turkey) had not ratified it ;
though the eight here italicized had declared their acceptance of the com-
pulsory jurisdiction of the Court in one way or another.

Whatever the legal significance of official yearbooks, the fact is that the
Registrar of the Court, in prefacing the addenda to the above-mentioned
Collection of Texts which were incorporated into the Annual Reports, took
care to describe that collection as mentioning “instruments already in
force or merely signed” (e.g., P.CILJ., Series E, No. 15, p. 211), so that no

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conclusion of effectivity is to be drawn from the inclusion of the above
eight States in the List of States having signed the Optional Clause.

The situation of Nicaragua in this respect had not changed by 31
December 1945. In Report No. 16 of the Permanent Court of International
Justice (the latest volume of the series, covering the years 1939-1945 and
therefore not called Annual Report), published after 1946, Nicaragua was
referred to in exactly the same way as in the preceding volumes, except for
the addition of the following footnote in a section entitled Protocol of
Signature of the Statute of the Court :

“According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol, and the
instrument of ratification was to follow. The latter however has not
been deposited.” (P.C.LJ., Series E, No. 16, p. 331.)

In No. 16, as in the preceding volumes, Nicaragua was listed as a State
which had signed [the Optional Clause] without condition as to ratification
(ibid, p. 49), and as a State which had signed without condition as to
ratification but had not ratified the Protocol of Signature of the Statute (ibid.,
p. 50). Even in this volume Nicaragua was not among the 29 States which
were listed as States bound by the Clause (ibid.). Despite the 1939 telegram,
there was no change in Nicaragua’s treatment in the List of States having
signed the Optional Clause (ibid., p. 345).

Ill

It stands to reason that the declaration of acceptance of the compulsory
jurisdiction of the Permanent Court of International Justice as such did
not have effect if it emanated from a State which had not become a Party to
the Statute of the Permanent Court of International Justice, and that the
declaration of acceptance of the compulsory jurisdiction of the Court
could not have been in force separately from the recognition of the Statute
itself, to which alone such a declaration could have been attached.

It is not easy to count the exact number of those States whose decla-
rations of acceptance of the compulsory jurisdiction of the Court were still
valid in 1945, because of the somewhat vague status of the declaration in
the case of some countries. Quite a number of declarations had already
expired by that time because of the expiration of the term fixed by the
declarations themselves, and still-valid declarations had been made by
States which were not the original Members of the United Nations. In 1945
it was possible to say, on the basis of Volume 15 of the Annual Report (the
latest available), that about 20 declarations made by original Member
States of the United Nations were still valid and effective. This brings me
to the question of the transition to the International Court of Justice.

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Chapter 2. Article 36, paragraph 5, of the Statute
I

The origin of Article 36, paragraph 5, of the present Court’s Statute may
be traced to a question raised by the United Kingdom at the Washington
Committee of Jurists in the preparations for the San Francisco Conference
in the spring of 1945 to draft the United Nations Charter. In a document
dated 10 April 1945 the United Kingdom drew attention to the matter as
follows :

“One question which will arise in connection with Article 36, is
what action should be taken concerning the existing acceptances of
the ‘optional clause’, by which a number of countries have, subject to
certain reservations, bound themselves to accept the jurisdiction of
the Court as obligatory. Should these acceptances be regarded as
having automatically come to an end or should some provision be
made for continuing them in force with perhaps a provision by which
those concerned could revise or denounce them [?]” (UNCIO, Vol.
XIV, p. 318, emphasis added.)

The documents of the Committee of Jurists do not reveal any significant
discussions on this subject, but in a report of 14 April 1945 the Sub-
Committee dealing with the drafting of Article 36 expressed its belief that
provision should be made for a “special agreement for continuing these
acceptances in force” (in French, “un accord spécial pour maintenir ces
acceptations en vigueur”) (ibid, p. 289). Thus continuance in force was the
theme from the outset.

II

In Committee IV/1 of the San Francisco Conference, the United King-
dom representative made the following statement on 28 May 1945 :

“If the Committee decides to retain the optional clause, it could
provide for the continuing validity of existing adherences to it. Since
forty Members of the United Nations are bound by it, compulsory
jurisdiction would to this extent be a reality.” (UNCIO, Vol. XIII,
p. 227.)

A Sub-Committee was set up on that day and its report submitted to
Committee IV/1 on 31 May 1945 read as follows :

“The text proposed by the Sub-Committee to the Committee is
attached. This text is the same as that of the first alternative proposed
for Article 36 by the Committee of Jurists of Washington, with the
exception of the two following modifications :

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(2) the new paragraph which follows (new paragraph 4) has been
inserted after paragraph 3:

‘Declarations made under Article 36 of the Statute of the Per-
manent Court of International Justice and which are still in force
shall be deemed as between the parties to the present Statute to
have been made under this Article and shall continue to apply, in
accordance with their terms.” (UNCIO, Vol. XIII, p. 558,
emphasis added.)

The French text of this new paragraph reads :

“Les déclarations encore en vigueur, faites en application de l’article
36 du Statut de la Cour permanente de Justice internationale seront
considérées, en ce qui concerne les rapports réciproques des parties au
présent Statut, comme ayant été faites en application du présent
article, et continueront a s’appliquer conformément aux conditions
qu’elles stipulent.” (/bid, p. 564, emphasis added.)

In other words, the English and French texts were drafted in exactly the
same manner.

During the debate on this report in Committee IV/1 on 1 June 1945,
several delegates expressed their views on this particular provision.

Canada :

“In view of the new paragraph quoted above, as soon as states sign
the Charter, the great majority of them would be automatically under
the compulsory jurisdiction of the Court because of existing declara-
tions.” (bid. p. 248.)

United Kingdom :

“After referring to the fact that his country had accepted the
jurisdiction of the Court for the past sixteen years, he stated that, for
the reasons given in the report, he favoured the compromise suggested
therein. He thought that some forty states would thereby become
automatically subject to the compulsory jurisdiction of the Court.”
Ubid., p. 249.)

Australia :

“THe desired to call attention to the fact that not forty but about
twenty states would be automatically bound as a result of the com-
promise. In this connection he pointed out that of the fifty-one states
that have adhered to the optional clause, three had ceased to be
independent states, seventeen were not represented at the Conference
and about ten of the declarations of other states had expired. The
difference between the two systems was therefore much greater than
had been suggested.” (/bid., p. 266.)

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480 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

On 5 June 1945 France made a new proposal, suggesting that the
paragraph should read as follows :

“Les déclarations faites en application de l’article 36 du Statut de la
Cour permanente de Justice internationale pour une durée qui n’est pas
encore expirée seront considerées, dans les rapports entre parties au
présent Statut, comme comportant acceptation de la juridiction obliga-
toire de la Cour internationale de Justice pour la durée et dans les
conditions exprimées par ces déclarations.” (UNCIO, Vol. XIII, p. 486,
emphasis added.)

The English text of this suggested amendment reads as follows :

“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, as including
acceptance of compulsory jurisdiction of the International Court of Jus-
tice for the time and under the conditions expressed in these declara-
tions.” (Ibid, p. 485, emphasis added.)

It is to be noted, however, that the French amendment was suggested so
as to replace the latter part of the new paragraph as proposed by the
Sub-Committee D, in both the English and French texts, but to change the
wording of the first part only in the French text by replacing “encore en
vigueur” with “pour une durée qui n’est pas encore expirée”. The French
representative stated that “the changes suggested by him in paragraph (4)
were not substantive ones, but were intended to improve the phraseology”
(ibid., p. 284). According to the French version of the report :

“Le représentant de la France déclare que les changements dont ila
proposé introduction au paragraphe 4 ne visaient pas le fond mais
tendaient à améliorer la rédaction.” (Jbid., p. 290.)

This statement is crucial to the interpretation of what is now paragraph 5 of
Article 36, for it precludes one from arguing, on the basis of the prepa-
ratory work, that the meaning of the English text may be strained to cover
every subtlety encompassed by its French counterpart.

On 6 June Committee IV/1 unanimously approved paragraph 4, which
was finally drafted as follows :

“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be accep-
tances of the compulsory jurisdiction of the International Court of
Justice for the period during which they still have to run and in
accordance with their terms.” (/bid, p. 284.)

In the report of this Committee it was stated as follows :

“A new paragraph 4 was inserted to preserve declarations made

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under Article 36 of the old Statute for periods of time which have not
expired, and to make these declarations applicable to the jurisdiction
of the new Court.” (UNCIO, Vol. XIII, p. 391.)

This English text was identical with that of the draft report (p. 314), but its
French equivalent had been recast so as, inter alia, to replace “les décla-
rations formulées ... pour des périodes qui n’ont pas encore expirées”
(p. 348) with “les déclarations non expirées” (p. 426), which, one may point
out in passing, appears closer to “still in force” than either the French text
of the Statute or the English of the report. The only other mention of this
provision in the document is, curiously enough, found in the part devoted
to the Charter, where it is indicated that the new paragraph (and Art. 37 of
the Statute) would safeguard “the progressive development of the judicial
process” (p. 384).

On 9 June this paragraph had been renumbered paragraph 5 (owing to
the insertion of a new paragraph 4 which is irrelevant to this discussion),
and it thus finally became Article 36, paragraph 5, of the Statute.

Ill

There is no denying that the founders of the International Court of
Justice in 1945 wanted to carry over to it declarations accepting the
jurisdiction of the Permanent Court of International Justice as compul-
sory. This is no licence, however, for interpreting Article 36, paragraph 5,
as attempting to refer to any declaration which, without being effective,
was simply on record at that time as a historical statement. As shown in the
explanation given by the United Kingdom, which took the initiative on this
particuliar provision, Article 36, paragraph 5, was drafted to meet prob-
lems such as : should “the acceptances of the ‘Optional Clause’, by which a
number of countries have. . . bound themselves to accept the jurisdiction of
the Court as obligatory” “be regarded as having automatically come to an
end” ? Or “Should some provision be made for continuing them in force” ?
(UNCIO, Vol. XIV, p. 318, emphasis added.)

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482 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

To my mind, this, and the clear limits on interpretation which are
imposed by the English text of Article 36, paragraph 5, and should be
evident from the foregoing section, quite rule out the possibility that the
provision may be held to contemplate any declaration not in force or by
which the declarant State was not or — in Nicaragua’s case — never had
been bound. The French delegate at the San Francisco Conference who
suggested the expression “pour une durée qui n’est pas encore expirée” for
Article 36, paragraph 5, may or may not have been thinking of his own
Government’s case, because the French Declaration of 1936 had already
expired in 1941. On the other hand, there is not the slightest ground for
believing that the French delegate had in mind the case of Nicaragua in
suggesting the rephrasing of the French version.

It may indeed be asked whether there was any reason for the San
Francisco Conference in 1945 to concern itself with any States that had
never been parties to the Statute of the Permanent Court of International
Justice. The new Article 36, paragraph 2, was certainly available to all such
States, and there was therefore no necessity to make any additional pro-
vision to enable expression to be given to their consent to be bound by the
Court’s compulsory jurisdiction. A contrario, had any attempt been made
to “capture” them unawares through a statutory formula, that would have
been an extremely dubious device which tended to violate the principle of
consent and was ex hypothesi vitiated. The straightforward solution offered
by the new Article 36, paragraph 2, sufficed to enable any State joining the
new judicial institution, including one having made a declaration that had
never come into force, to express its readiness to accept the compulsory
jurisdiction.

The present Judgment states :

“{T]hose who framed the new text were aware... that a State could
make a declaration when it had not ratified the Protocol of Signature
of the Statute, but only signed it. The chosen wording therefore does
not exclude but, on the contrary, covers a declaration made in the
circumstances of Nicaragua’s declaration.” (Para. 28.)

While this may be literally true, it begs the whole question of the legal force
to be attributed to a declaration “made” in such circumstances. Nothing in
the proceedings of the San Francisco Conference confirms the implied
presumption that on the dissolution of the Permanent Court a declaration
of this nature had any life that could be sustained. Furthermore, I suggest
that this presumption be tested against the situations of two other coun-
tries never parties to the Statute of the Permanent Court of International
Justice, Argentina and Iraq, which in 1935 and 1938 respectively made
declarations, both subject to ratification, to run for a given number of years
(Argentina 10, Iraq 5) from the date of deposit of the ratification of the
declaration in question (and, in Iraq’s case, thereafter until notice of

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termination). Supposing that either of these two countries were now to
deposit a ratification of their pre-war declaration, could it seriously be held
that those declarations had remained merely dormant and had been made
effective by such ratification ?

Chapter 3. Nicaragua’s Position in Respect of
the Optional Clause

I

There is no indication as to how Nicaragua understood its own position
in 1945 vis-a-vis the provisions of Article 36 of the Statute of the new
Court. The only things which are clear are, first, that Report No. 16 of the
Permanent Court of International Justice, which covered the period from
15 June 1939 to 31 December 1945, had not then been published ; and,
second, that the only available report was No. 15, which covered the period
15 June 1938 to 15 June 1939, and which was prepared before the 1939
telegram was sent. Thus in 1945 Nicaragua was not in a position to check
its status in the Permanent Court of International Justice from any official
publication. It may be noted that Nicaragua was represented at the
Washington Committee of Jurists by Ambassador Guillermo Sevilia-
Sacasa and at the San Francisco Conference by Mr. Mariano Argüello
Vargas, then Minister for Foreign Affairs. At any rate, Nicaragua cannot
be deemed to have believed in 1945 that it would be bound by the com-
pulsory jurisdiction of the new Court pursuant to Article 36, paragraph 5,
of the new Statute.

Il

Nicaragua further states that its own conduct, and the acquiescence of
the United States as well as of other States since 1945, provided a basis for
the effectiveness of the 1929 Declaration. According to Nicaragua :

“3. Nicaragua has demonstrated by its consistent conduct for 38
years that it has fully consented to the compulsory jurisdiction of the
Court.

4. The United States, by accepting the effectiveness of Nicaragua’s
declaration for 38 years, has waived any objection to the formal defect
in ratification of the Protocol of Signature.” (Nicaragua’s Memorial,
paras. 91, 94.)

In order to prove the allegedly consistent conduct by Nicaragua and the
alleged acceptance of the effectiveness of Nicaragua’s Declaration by the
United States, the present Judgment heavily depends on the way in which
Nicaragua is listed in the International Court of Justice Yearbooks. The

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Judgment points out the fact that Nicaragua is included in the “List of
States which have recognized the compulsory jurisdiction of the Interna-
tional Court of Justice, or which are still bound by their acceptance of the
Optional Clause of the Statute of the Permanent Court of International
Justice” in the first International Court of Justice Yearbook 1946-1947, in
contrast to its exclusion from the list in the last Report of the Permanent
Court of International Justice of “States bound by the [optional] clause”,
and it states :

“It is ... difficult to escape the conclusion that the basis of this
innovation was to be found in the possibility that a declaration which,
though not of binding character, was still valid, and was so for a
period that had not yet expired, permitted the application of Article
36, paragraph 5, so long as the State in question, by ratifying the
Statute of the International Court of Justice, provided it with the
institutional foundation that it had hitherto lacked. From that
moment on, Nicaragua would have become ‘bound’ by its 1929
Declaration, and could, for practical purposes, appropriately be
included in the same Yearbook list as the States which had been bound
even prior to the coming into force of the post-war Statute.”
(Para. 37.)

Relying on the inclusion of Nicaragua in the “List of States having
recognized the compulsory jurisdiction of the International Court of Jus-
tice, or which are still bound by the acceptance of the Optional Clause of
the Statute of the Permanent Court of International Justice” in the Inter-
national Court of Justice Yearbooks, the Judgment (para. 37) seems to
overlook, or ignore, the disclaimer which started in the 1956-1957 Year-
book and which reads :

“The inclusion of a declaration made by any State should not be
regarded as an indication of the view entertained by the Registry or, a
fortiori, by the Court, regarding the nature, scope or validity of the
instrument in question.” (P. 207.)

From the Yearbook 1958-1959 to the Yearbook 1964-1965, the beginning of
the above reads : “The inclusion or omission of ...”

Furthermore, the Judgment seems to overlook another fact, namely, that
in the Yearbook 1946-1947 of the International Court of Justice, the
declarations made for the purpose of accepting the compulsory jurisdic-
tion of the Permanent Court by States which had not deposited the ratifi-
cation of the Protocol of Signature, such as Argentina, Costa Rica, Egypt,
Guatemala, Iraq, Liberia and Turkey, were certainly not treated as having
any potential effect under the Statute of the new Court.

The Registrar of the Court, who is requested by the Court to prepare the
Yearbook, is admittedly responsible for the accuracy of the facts described
therein : however, what kind of legal significance can be drawn from a
description in this document is a completely different matter. The Regis-

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485 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

trar is not responsible for the legal interpretation of or implications to be
drawn from this publication. It falls within the judicial functions of the
Court to give authoritative meaning to such description and not within the
administrative tasks to be discharged by the Registrar.

I

It is, however, pertinent to examine how the position of Nicaragua has
been dealt with in the International Court of Justice Yearbooks, whose
presentation of the facts concerning acceptance under the Optional
Clause, after remaining fairly similar from Volume 1 (1946-1947) to
Volume 18 (1963-1964), was greatly changed when a complete overhaul of
the structure of the Yearbook was undertaken with Volume 19 (1964-
1965). Since then it has not changed to the present day.

The information which concerns us here has at various times been dealt
with in different chapters of the Yearbook. It will be appropriate to begin
with the mentions in Chapter III, concerning the Court’s jurisdiction. In
this chapter, there was a table concerning Declarations accepting compul-
sory jurisdiction from 1946-1947 to 1949-1950. The table of States accept-
ing compulsory jurisdiction was set out under the headings “State — Date —
Conditions” in the Yearbook 1946-1947, but this was changed to “State —
Date — Duration” in the 1948-1949 volume, then to “State — Date of
Signature — Duration” in that of 1949-1950. In all of the Yearbooks
Nicaragua was listed as follows : “Nicaragua — 24 IX 29 — Uncondition-
ally”, but with a footnote attached in the same manner as to some other
countries (for instance, in the volume of 1946-1947, Australia, Canada,
Colombia, Dominican Republic, El Salvador, Haiti, India, Iran, Luxem-
bourg, New Zealand, Panama, Paraguay, Siam, Union of South Africa,
United Kingdom and Uruguay) (apparently there is an error in that
Sweden was omitted in the 1946-1947 volume). This footnote stated :

“Declaration made under Article 36 of the Statute of the Perma-
nent Court and deemed to be still in force (Article 36, paragraph 5, of
Statute of the present Court).”

As from the volume of 1950-1951 this table disappeared, and under the
title of “Acceptance of compulsory jurisdiction” there was a listing show-
ing :

“The following States have deposited with the Secretary-General of
the United Nations the declaration recognizing the Court’s jurisdic-
tion as compulsory, or had already accepted the jurisdiction of the

Permanent Court of International Justice as compulsory for a period
that has not yet expired.” (.C.J. Yearbook 1951-1952, p. 43)

This format continued until the Yearbook 1958-1959, but since the 1959-
1960 volume such reference to the names of States completely disappeared
from Chapter III. Nicaragua was included in the list mentioned above

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486 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

since the volume of 1950-1951. From the 1956-1957 to the 1958-1959
volumes, the following footnote was added to Nicaragua : “See footnote to
the declaration of this State, Chapter X, second part.”

In the Yearbook 1946-1947 until that of 1963-1964 there was always a
chapter entitled Texts governing the Jurisdiction of the Court ; this was
modelled on the practice of the Registry of the Permanent Court of
International Justice, which however had also issued such chapters as
offprints constituting addenda to Series D, No. 6, bearing the same title. In
Chapter X for 1946-1947, the declaration of Nicaragua was listed under the
section : Communications and declarations of States which are still bound by
their adherence to the Optional Clause of the Statute of the Permanent Court
of International Justice (p. 207), with a footnote which read :

“According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol of Sig-
nature of the Statute of the Permanent Court of International Justice
(December 16th, 1920), and the instrument of ratification was to
follow. Notification concerning the deposit of the said instrument has
not, however, been received in the Registry.”

It should be remembered in passing that the final sentence was rightly
designed not to exclude the possibility that the ratification had, un-
beknown to the Registrar, been deposited where it belonged — in the
archives of the League Secretariat.

From the time of the Yearbook 1947-1948, under the section headed
Acceptance of the compulsory jurisdiction of the Court, only the texts of new
declarations were reproduced. Declarations like those of Nicaragua which
had been printed in the 1946-1947 volume were not reproduced but simply
made the subject of a reference back to that volume. This practice, which in
effect preserved the actuality of the footnote, was continued until the
Yearbook 1955-1956. Since the Yearbook 1956-1957 all the declarations in
force have always been reproduced.

Also in this Chapter X mentioned above, until the Yearbook 1955-1956
there was always a “List of States which have recognized the compulsory
jurisdiction of the International Court of Justice or which are still bound
by their declarations accepting the compulsory jurisdiction of the Perma-
nent Court of International Justice” (Art. 36 of the Statute of the Inter-
national Court of Justice) (C.J. Yearbook 1947-1948, p. 133 !). The
headings of each column of the table listing these States have been changed
from “States — Date of signature — Conditions — Date of deposit of
ratification” in the Yearbook 1946-1947 to “State — Date of signature —
Conditions — Date of deposit of ratification” in 1947-1948 ; “State — Date
of signature — Conditions — Date of ratification” in 1948-1949 ; “State —
Date of signature — Date of deposit of signature — Conditions” in 1949-
1950 ; and “State — Date of signature — Date of deposit of declarations —

' The title in the 1946-1947 volume was slightly different.

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487 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Conditions” in the 1951-1952 volume. This last type remained until the
1955-1956 volume. During this period Nicaragua was listed as “Nicaragua
— 24 IX 29 — (Unconditionally) — blank”. Since the Yearbook 1949-1950,
because of the change of format, Nicaragua was listed as “Nicaragua —
24 IX 29 — 24 IX 29 — (Unconditionally)”.

In the 1955-1956 volume a footnote was attached to the listing of
Nicaragua, which read as follows :

“According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol of Sig-
nature of the Statute of the Permanent Court of International Justice
(December 16th, 1920), and the instrument of ratification was to
follow. It does not appear, however, that the instrument of ratification
was ever received by the League of Nations.”

The new final sentence shows clearly that by 1956 the Registrar had made
thorough enquiries and was reasonably satisfied that the possibility left
open by the previous footnote was now unlikely in the extreme. Since the
Yearbook 1956-1957, as previously mentioned, the texts of all the decla-
rations in force were listed under the title Acceptance of the compulsory
Jurisdiction of the Court in pursuance of Article 36 of the Statute, after which
the table was discontinued. A footnote is attached to the declaration itself
of Nicaragua, which is identical to that in the 1955-1956 volume. From the
Yearbook 1961-1962 onwards, the title was changed to Declaration recog-
nizing compulsory jurisdiction, but there was no change to the substance.

There has been a complete change in the format of the Yearbook since
that of 1964-1965. The former Chapter X was replaced by a new Chapter
IV, Texts governing the jurisdiction of the Court, in which Section II, “De-
clarations recognizing as compulsory the jurisdiction of the Court”, con-
tained the complete texts of the declarations ; the listing of Nicaragua in
that volume was the same as in 1956-1957 and this presentation has
continued until the latest Yearbook 1982-1983.

Thus it can be seen that throughout the Yearbooks, from the very
beginning, a reservation has always been attached to the Declaration of
Nicaragua. In the 1955-1956 volume a footnote was added in respect of
Nicaragua in the list in Chapter X, and in the 1956-1957 volume, where the
list was discontinued and the full text reproduced, the same footnote was
carried over. In addition, in Chapter III of the volumes from 1956-1957 to
1958-1959 which continued the express reference to the names of the
States, Nicaragua was mentioned with a footnote which referred back to
the footnote included in Chapter X.

IV
Is it possible, from the facts as mentioned above, to draw the conclusion
that the Court has made any authoritative interpretation that Nicaragua

would be bound by the compulsory jurisdiction of the Court ? I do not

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deny that the Registrar or his staff, at the outset of the International Court
of Justice in 1946, might have queried the legal effect of the 1939 telegram
from Nicaragua. Yet, as the differences of opinions between Judges in the
present case show only too well, it would have been most presumptuous of
him to exclude any declaration that might be seen as not having expired. It
was natural and indeed proper for him to continue publishing Nicaragua’s
Declaration with the factual qualification set out in a footnote, rather than
categorically ignoring it. The Registrar was certainly not in a position to
give any authoritative interpretation to the effect of the 1939 telegram ;
and there is no room to interpret the uncertainties in the handling of the
case of Nicaragua in the International Court of Justice Yearbook as giving
any fresh legal significance to the value of Nicaragua’s Declaration.

It may be true that such a treatment of Nicaragua’s declaration had not
been contested by any country, but no one can deny that, unless there is
any practical need to scrutinize specific points, little attention is likely to
have been paid by other States to items which were repeated year by year.
The International Court of Justice Yearbook, like other works of reference
produced by reputable institutions, exists for the accurate conveying of
facts, and where the facts it relates suffice in themselves as the basis of legal
conclusions, it is, I repeat, quite inappropriate to attach ultimate legal
authority to the manner of its drafting. Even were that not so, given that a
footnote is the exception rather than the rule, would it not be reasonable to
expect that the Registry’s remarks would do more to alert the informed
reader against the effectiveness of Nicaragua’s declaration than its inclu-
sion would do to suggest its being in force ?

V

The case concerning the Arbitral Award Made by the King of Spain on 23
December 1906 between Honduras and Nicaragua has repeatedly been
referred to by Nicaragua in support of its contention that its acceptance of
the compulsory jurisdiction of the Court was valid. The present Judgment
does not have much to say about the case, yet it states :

“The Court notes that Nicaragua, even if its conduct in the case
concerning the Arbitral Award Made by the King of Spain on 23
December 1906 was not unambiguous, did not at any time declare that
it was not bound by its 1929 Declaration.” (Para. 39.)

In another place it states :

“TW Jhat States believe regarding the legal situation of Nicaragua so
far as the compulsory jurisdiction of the Court is concerned may
emerge from the conclusions drawn by certain governments as

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regards the possibility of obliging Nicaragua to appear before the
Court or of escaping any proceedings it may institute. The Court
would therefore recall that in the case concerning the Arbitral Award
Made by the King of Spain on 23 December 1906 Honduras founded its
application both on a special agreement, the Washington Agreement,
and on Nicaragua’s Optional-Clause declaration.” (Para. 41.)

It may be wondered whether it is the intention of the Judgment to assert
that the Respondent’s acceptance of the compulsory jurisdiction can be
established by the Applicant’s assertion.

The Court concludes, again after referring to the above-mentioned
case :

“(T]he position of Nicaragua as to its own conduct is, as indicated
above, that so far from having represented that it was not bound by
the Optional Clause, on the contrary its conduct unequivocally con-
stituted consent to be so bound.” (Para. 50.)

The Court thus appears to take Nicaragua’s assertion at face value and
evades considering whether Nicaragua’s conduct in that case would really
constitute acquiescence in the compulsory jurisdiction of the Court under
any other head than the Washington Agreement. That apart, what is
“indicated above”, in the quoted phrase, is so scanty that it certainly gives
no ground to conclude that Nicaragua believed it would have been bound
by the Optional Clause of the Statute in that particular litigation.

PART IL. EFFECT OF THE SHULTZ LETTER

Chapter 1. New Types of Reservation
I

If Nicaragua lacks legal standing as an Applicant for the reason that it
has not accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2 or 5, of the Statute, the present proceedings, which were
initiated by a unilateral application by Nicaragua, cannot be entertained
on the basis of those provisions. However, it still appears pertinent to
examine whether the United States could be proceeded against in the
present case supposing Nicaragua did have /ocus standi to bring the United
States to the Court because of the latter’s acceptance of the compulsory
Jurisdiction of the Court.

On 6 April 1984 the United States added in the so-called Shultz letter a
further reservation to those already made in its Declaration of 26 August
1946. The Shultz letter purported to exclude from the jurisdiction of the
Court :

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490 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

“Disputes with any Central American state or arising out of or
related to events in Central America, any of which disputes shall be
settled in such manner as the parties to them may agree.”

In order to see whether or not this reservation was effective, it is pertinent
to look at the history of reservations to the Optional Clause since the time
of the Permanent Court of International Justice.

Il

In drafting the Statute of the Permanent Court of International Justice,
the Advisory Committee of Jurists in 1920 did not anticipate any reser-
vations being made concerning the compulsory jurisdiction. The Nether-
lands was the first State accepting the compulsory jurisdiction of the Court
(on 6 August 1921) to make a reservation. It was rather a modest one,
which attempted to limit the jurisdiction of the Court to “any future
dispute in regard to which the parties have not agreed to have recourse to
some other means of friendly settlement” (P.C.I_J., Series D, No. 4, 2nd
ed., p. 20). This type of reservation was used in the 1920s by Estonia (1923),
Belgium (1925), Ethiopia (1926), Germany (1927), Spain (1928), Italy
(1929), Latvia (1929), France (1929) and Czechoslovakia (1929).

In order to reply to the question of the legality of making a reservation to
the Optional Clause and to facilitate the acceptance of the compulsory
jurisdiction of the Court by as many countries as possible, the General
Assembly of the League of Nations, on 2 October 1924, passed a resolution
concerning Arbitration, Security, and Reduction of Armaments in which it

“[clonsider{ed] that the study of the ... terms [of Article 36, para-
graph 2] shows them to be sufficiently wide to permit States to adhere
to the Special Protocol opened for signature in virtue of Article 36,
paragraph 2, with the reservations which they regard as indispensable”
(League of Nations Official Journal, Special Supplement No. 21, p. 21,
emphasis added)

and recommended “States to accede at the earliest possible date” to the
Optional Clause. The Protocol for the Pacific Settlement of International
Disputes, which was attached as an annex to that resolution, reads :

“The Signatory States undertake to recognize as compulsory, ipso
facto and without special agreement, the jurisdiction of the Permanent
Court of International Justice in the cases covered by paragraph 2 of
Article 36 of the Statute of the Court, but without prejudice to the right
of any State, when acceding to the special protocol provided for in the
said Article and opened for signature on December 16th, 1920, to
make reservations compatible with the said clause.” (League of Nations
Official Journal, Special Supplement No. 21, p. 22, emphasis added.)

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MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

In 1928 the General Assembly of the League of Nations again passed a
resolution along the lines suggested four years previously :

103

“Pacific Settlement of International Disputes,
Non-Aggression and Mutual Assistance

(v) RESOLUTION REGARDING THE OPTIONAL CLAUSE OF ARTICLE 36
OF THE STATUTE OF THE PERMANENT COURT OF INTERNATIONAL
JUSTICE

The Assembly :

Referring to the [1924 resolution] . . . considering that the terms of
Article 36, paragraph 2, of the Statute of the Permanent Court of
International Justice are sufficiently wide to permit States to adhere
to the special Protocol opened for signature in virtue of that article,
with the reservations which they regard as indispensable, and con-
vinced that it is in the interest of the progress of international justice
that the greatest possible number of States should, to the widest
possible extent, accept as compulsory the jurisdiction of the Court,
recommends States to accede to the said Protocol at the earliest
possible date ;

Noting that this recommendation has not so far produced all the
effect that is to be desired ;

Being of opinion that, in order to facilitate effectively the accep-
tance of the clause in question, it is expedient to diminish the obstacles
which prevent States from committing themselves ;

Being convinced that the efforts now being made through progres-
sive codification to diminish the uncertainties and supply the defi-
ciencies of international law will greatly facilitate the acceptance of
the optional clause of Article 36 of the Statute of the Court, and that
meanwhile attention should once more be drawn to the possibility offered
by the terms of that clause to States which do not see their way to accede
to it without qualification, to do so subject to appropriate reservations
limiting the extent of their commitments, both as regards duration and as
regards scope ;

Noting, in this latter connection, that the reservations conceivable
may relate, either generally to certain aspects of any kind of dispute, or
specifically to certain classes or lists of disputes, and these different kinds
of reservation can be legitimately combined ;

Recommends that States which have not yet acceded to the op-
tional clause of Article 36 of the Statute of the Permanent Court of
International Justice should, failing accession pure and simple, con-
sider, with due regard to their interests, whether they can accede on
the conditions above indicated; ...” (League of Nations Official
Journal, Special Supplement No. 64, p. 183, emphasis added.)
492 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Thus, within less than ten years of the foundation of the Permanent
Court of International Justice, reservations to the jurisdiction of the Court
had become permissible in order to make it easier for States to accept the
compulsory jurisdiction of the Court.

III

Great Britain, in its Declaration of 19 September 1929, together with
other Commonwealth nations, such as the Union of South Africa (19
September 1929), New Zealand (19 September 1929), India (19 September
1929), Australia (20 September 1929), and Canada (20 September 1929)
attempted to restrict their acceptance of the jurisdiction of the Court and
added, in addition to the type of reservation initiated by the Netherlands,
two new types concerning disputes among the members of the British
Commonwealth and disputes with regard to questions which, by interna-
tional law, fell exclusively within the declarant’s jurisdiction. Great Britain
and other Commonwealth nations also reserved, with some provisos,

“the right to require that proceedings in the Court shall be suspended
in respect of any dispute which has been submitted to and is under
consideration by the Council of the League of Nations”.

In the 1930s, following the initiative taken by Great Britain, it became
common practice for States to make a variety of reservations to the
declaration of acceptance of compulsory jurisdiction. Some States fol-
lowed the reservation of Great Britain in some way or another. The
reservation concerning domestic jurisdiction was included by Yugoslavia
(16 May 1930), Albania (17 September 1930), Iran (2 October 1930),
Romania (8 October 1930), Poland (24 January 1931), Argentina (28
December 1935), Brazil (26 January 1937), Iraq (22 September 1938) and
Egypt (30 May 1939). On the other hand the notion of suspension in
respect of any dispute before the Council of the League of Nations was
adopted by Italy (9 September 1929), Czechoslovakia (19 September
1929), France (19 September 1929), Peru (19 September 1929) and Iraq (22
September 1938). In addition, a new type of reservation for disputes
relating to territorial status was made by Greece (12 September 1929),
Albania (17 September 1930), Persia (2 October 1930), Romania (8 Octo-
ber 1930) and Iraq (22 September 1938).

On 7 March 1940 Great Britain, making a new declaration, added a
further reservation concerning “disputes arising out of events occurring at
a time when His Majesty’s Government were involved in hostilities”. This
type of reservation was immediately followed by the other Commonwealth
nations, such as India (7 March 1940), New Zealand (8 April 1940), the
Union of South Africa (20 April 1940) and Australia (2 September 1940).
(Canada did not make such a reservation.)

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493 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)
IV

During the preparation of the Statute of the International Court of
Justice at the San Francisco Conference, no doubt was expressed as to the
permissibility of making reservations to acceptance of the compulsory
jurisdiction of the Court to be newly founded. The report of Sub-Com-
mittee D to Committee 1 of Commission IV on Article 36 of the Statute of
the International Court of Justice, prepared on 31 May 1945, clearly
recognizes the permissibility of attaching reservations to the declaration of
acceptance of the compulsory jurisdiction of the Court. It reads :

“The question of reservations calls for an explanation. As is well
known, the article has consistently been interpreted in the past as
allowing states accepting the jurisdiction of the Court to subject their
declarations to reservations. The Subcommittee has considered such
interpretation as being henceforth established. It has therefore been
considered unnecessary to modify paragraph 3 in order to make
express reference to the right of the states to make such reservations.”
(UNCIO, Vol. XIII, p. 559.)

Most declarations referring to the compulsory jurisdiction of the new
Court have been accompanied by reservations, the scope of which has been
considerably more far-reaching than that of the declarations which had
been made under the Permanent Court of International Justice. For
example, the famous Vandenberg amendment in the United States Decla-
ration of 26 August 1946 formed one such reservation and was emulated by
Pakistan (12 September 1960), Malta (29 November 1966) and India (15
September 1974). The so-called automatic reservation, also in the United
States Declaration, was adopted subsequently by Mexico (23 October
1947), Liberia (3 March 1952), France (18 February 1957), Sudan (30
December 1957) and Malawi (29 November 1966).

There were also some instances in which the declarant States attempted
to make reservations in respect of disputes which were about to occur.
Australia’s Declaration to exclude from the Court’s jurisdiction :

“disputes arising out of or concerning jurisdiction or rights claimed or
exercised by Australia

(a) in respect of the continental shelf of Australia and the Territories
under the authority of Australia, as that continental shelf
is described or delimited in the Australian Proclamations of
10 September 1953 or in or under the Australian Pearl Fisheries
Acts...” (LCJ. Yearbook 1953-1954, p. 210)

was made on 6 February 1954, a few months after an agreement was
reached with Japan to submit jointly to the International Court of Justice a
dispute on Japanese pearl fishing on Australia’s continental shelf, but
subject to successful negotiations on a modus vivendi. India issued a new

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494 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Declaration on 15 September 1974 to matters of the law of the sea,
including “the determination and delimitation of its maritime boundar-
ies”, while it was reported that some negotiations with Bangladesh were
taking place concerning the maritime boundaries of the Gulf of Bengal.
While the law of the sea negotiations were proceeding in the United
Nations, the new reservation added to exclude matters of the law of the sea
also appeared in several declarations, such as those of Canada (7 April
1970), Philippines (23 December 1971), New Zealand (22 September 1977)
and Malta (23 January 1981 and 23 September 1983). These are only a few
examples of the types of reservations made.

V

In the light of the practice concerning reservations to the Optional
Clause throughout the period of the Permanent Court of International
Justice and the International Court of Justice, the reservations made by the
United States in 1984 cannot be held so exceptional or extraordinary as to
fall outside the purview of permissibility.

Chapter 2. Termination and Modification of the
United States Declaration

I

The point at issue with regard to the Shultz letter concerns the legal
implications of its purporting to make a new reservation with immediate
effect. The letter states :

“Notwithstanding the terms of the aforesaid [1946] Declaration,
this proviso [i.e., new reservation] shall take effect immediately and
shall remain in force for two years, so as to foster the continuing
regional dispute settlement process which seeks a negotiated solution
to the interrelated political, economic and security problems of Cen-
tral America.” (Emphasis added.)

The “Notwithstanding” constitutes, of course, an allusion to the following
clause in the United States Declaration of 1946:

“[Tlhis declaration shail remain in force .. until the expiration of
six months after notice may be given to terminate this declara-
tion.”

It should thus be asked whether the addition of this new reservation on 6

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495 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

April 1984 effectively exempts the United States from its adherence, given
in 1946, to the Court’s jurisdiction for a dispute unilaterally brought to the
Court by Nicaragua on 9 April 1984.

The United States has implied that the Shultz letter did not purport to
terminate the 1946 Declaration but only to amend it by making a new
reservation. It is pertinent in this respect to examine the problem of the
validity of a declaration of acceptance of the Optional Clause. Relevant
indications concerning these declarations can be found in the Annual
Report in the case of the Permanent Court of International Justice, and in
the Yearbook in the case of the International Court of Justice, but the
format of these publications has changed from time to time and is often
inconsistent.

I]

At the time of the Permanent Court of International Justice in parti-
cular, it appears that the Registry did not necessarily have a precise
understanding of how to deal with the Optional Clause. The inconsistency
in dealing with the date of the Optional Clause in the Annual Reports
causes great confusion to the reader ! ; it is extremely difficult to derive a
clear indication of the status of some of the declarations of acceptance of
the Optional Clause from the Annual Reports of the Permanent Court of
International Justice. However, with this reservation, I deem it useful to
proceed with some analysis of these declarations.

! Ratification was not imposed by the terms of the Optional Clause, but in fact some
declarations were made subject to ratification while others (which did not require it)
were nevertheless ratified. In No. 1 of the Annual Reports of the Permanent Court of
International Justice, the table concerning the Optional Clause in Chapter III (p. 138)
had three columns headed “Signatory States — Date of ratification (if any) — Conditions
of acceptance”, while another table in Chapter X (p. 359) was headed simply “Signatory
States — Date of ratification when required”. In No. 2 of the Annual Reports, the table
appeared in Chapter HI only, under the headings “States — Date of signature —
Conditions — Date of deposit of ratification (if any)”. In No. 3, the headings of the
tables in Chapters III and X were identical in that they indicate “States — Date of
signature — Conditions — Date of deposit of ratification (if any)” (pp. 83 and 335). After
No. 4 of the Annual Reports the list in Chapter III disappeared and the format of the
table in Chapter X of No. 3 was retained. However, in Report No. 16 a table in Chapter X
is headed “States — Date of signature — Conditions — Date of deposit of ratification”,
thus omitting “(if any)” from the heading concerning ratification. I assume that what
must have been significant was the date of the deposit of the declaration, no matter
whether ratification was required under the internal procedures of some countries.
When the table indicates the “Date of deposit of ratification” it might have meant the
date of deposit of the declaration itself, whether it was properly ratified under internal
procedures (when required), or was simply deposited, in cases where internal ratifica-
tion was not required.

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496 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Table I shows all the declarations made under the Permanent Court of
International Justice, arranged in chronological order of the first decla-

rations of States :

TABLE I, DECLARATIONS UNDER THE PERMANENT COURT OF
INTERNATIONAL JUSTICE (IN CHRONOLOGICAL ORDER)

MOG WM
WH OO

Rowe

Denmark

Switzerland

Portugal
El Salvador

Costa Rica

Uruguay
Netherlands *

Sweden

Norway

Lithuania *

Panama
Brazil

108

date of signature.
date of deposit of ratification.

date of expiration or termination of the latest declaration.
P.C.LJ., Series D.
P.CLJS., Series E.
State whose latest declaration has expired or was terminated by 1945.

Declaration signed without condition as to ratification.

Declaration signed and ratified.

Declaration subject to ratification but not ratified.

Declaration signed before ratification of Protocol of Signature deposited.

: S$ before 28.1.21, R 13.VI.21 (D4, E6);

: S 11.XI125, R 28.III.26 (E6) ;

: S4.V136, R ? ? (D4, E12).

: S before 28.1.21 (D4, E6), R 25.VII21 (El);
: S 1.111.26, R 24.VII.26 (E6) ;

: § 23.1X.36, R 17.1V.37 b (E13).

S before 28.1.21 (D4, E6), R 8.X.21 4 (El).

S before 28.1.21, R 29.VIIL.30 2 4 (D4, E6) (Proto-
col ratified 29.VIIE 30).

S before 28.1.21 2 4 (D4, E6) (Protocol signed
before 28.1.21 but never ratified).

S before 28.121 (D4, E6), R 27.1X.21 2 (El).

: Sand R 6.VIIL.21 4 (D4, E6) ;
: § 2.1X.26 (E6) ;
: § 5.VIIL36 2 (E13), T 1943.

: § 16.VIIL.21 2 (D4, E6) ;
: § 18.111.26 (E6) ;
> § 18.1V.36 2 (E12).

: § 6.1X.21, R 3.X.21 (D4, E6);
: S 22.IX.26 » (E6) ;
: S 19.V.36 b (E12).

: S5.X.21, R 16.V.22 (D4, E6) ;
: S 14.130 4 (E6);
: § 8.111.35, R 12.111,35 2 (E11), T 1940.

S 25.X.21, R 14.V1.29 2 (D4, E6).

: R LXL21 4 (E6);
: Sand R 26.1.37 « (E13).
497 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Luxembourg 1: $ 1921 (D4, E6) (Protocol ratified 15.1X.30) ;
Il: S 15.1X.30 4 (E7).
Finland 1: S 1921, R 6.1V.22 (D4, E6);

II: § 3.11127 2 (E3, E6) ;
IT: S 9.1V.37 4 (E13).

Liberia S 1921 ¢ 4 (D4, E6) (Protocol signed 24.VII.21 but
never ratified).

Bulgaria S 1921 4, R 12.VHI.21 (D4, E6).

Haiti S 1921 a (D4, F6).

Austria I: S$ 14.1V.22 (D4, E6), R 1411122 (El);

I: S$ 12.127, R 13.11.27 (E6) ;
HT: S 22.11.37, R 30.VI.37 > (E13).

China S 13.V.22 2 (D4, F6).
Estonia I: R2.V.23 2 (El, E6);
IH: S25.VI28 4 (F4, E6) ;
I: S 6.V.38 2 (E14).
Latvia IT: S 11.1X.23 (D4) (Protocol ratified 12.11.24) ;

II: S$ 10.1X.29, R 26.11.30 (£6) ;
HT: $ 31.1.35, R 26.11.35 » (E11).

Dominican
Republic S 30.1X.24, R 4.11.33 ? (E9).

France * I: S2.X.24 (El);

II: S 19.1X.29 (E6), R 25.1V.31 (E7) ;

HE: S 7.1V.36 2 (E12), T 1941.
Belgium * S 25.1X.25, R 10.111.26 » (E2), T 1941.
Ethiopia * 1: S 12.VH.26, R 16.VII.26 (E6) ;

I: S 15.1V.32 4 (E8) ;

III: S 18.1X.34 2 (E11), T 1936.
Guatemala S 17.X11.26 © 4 (E3, E6) (Protocol signed 17.XII.26

but never ratified).

Germany * IT: S23.IX.27, R 29.11.28 (F4, E6) ;

II: S 9.111.33, R S.VIL33 » (E9), T 1938.
Hungary * 1: S 14.1X.28, R 13.VIIL29 (ES, E6) ;

II: S 30.V.34 (E10), R 9.VIII.34 (E13) ;

IT: S12.VIL39, R ? > (E16), T 1939.
Spain * S 21.1X.28 4 (ES), T 1938.
Italy * S 9.1X.29 (E6), R 7.IX.31 » (E8), T 1936.
Greece * I: S12.X.29 4 (£6);

II: S 12.1X.34, R 19.VIE.35 (E11);

Ill: S8.IX.39, R 20.11.40 4 (E16), T 1944.
Irish Free State S 14.1X.29 (E6), R 11.VIL30 > (£7).
Czechoslovakia S 19.1X.29 ¢ (E6).
Peru * S 19.IX.29 (E6), R 29,111.32 > (E8), T 1942.

109
498 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

United Kingdom

New Zealand

Union of

South Africa

India
Australia

Canada
Siam

Nicaragua

Yugoslavia *
Albania *

Persia
Romania *

Poland
Colombia

Paraguay
Argentina

Turkey
Bolivia

Monaco *
Iraq

Liechtenstein *

Egypt

I:
II:
I:
Il:

S 19.1X.29, R 5.11.30 (E6) ;
S 28.11.40 2 (E16).

S 19.1X.29 (E6) ;
S 1.IV.40 2 (E16).

: § 19.1X.29, R 7.1V.30 (E6) ;

: § 7.1V.40 4 (E16).

: § 19.1X.29, R 5.11.30 (E6) :

: § 28.11.40 @ (E16).

: § 20.1X.29, R 18.VIII.30 (E6) ;
: § 21.VIIL40 2 (E16).

S 20.1X.29, R 28.VIL.30 > (E6).

: § 20.1X.29 (E6), R 7.V.30 (E7);
: § 3.V.40 > (E16).

S 24.1X.29 4 4 (E6) (Protocol signed 14.1X.29 but
never ratified).

S 16.V.30 (E6), R 24.X1.30 » (E7), T 1935.

: S and R 17.1X.30 (E7) ;
: S 7.X1.35 » (E12), T 1946.

S 2.X.30 (E7), R 19.1X.32 > (E9).

: S 8.X.30, R 9.VI 31 (E7) ;
: § 4.VI.36 > (E12) (corrected E13), T 1941.

S 24.131 © (E6).

: S 6.1.32 2 (D6) ;
: S and R 30.X.37 4 (E14).

S and R 11.V.33 4 (E9).

S 28.XII.35 ¢ 4 (E12) (Protocol signed 28.XII.35
but never ratified).

S 12.1V.36 2 d (E12) (Protocol signed 12.1V.36 but
never ratified).

S and R 7.VIL36 @ (E12, E13).
S and R 22.1V.37 2 (E13), T 1942.

S 22.IX.38 © 4 (E15) (Protocol signed 22.1X.38 but
never ratified).

S 22.01.39 2 (E15), T 1944.

S 30.V.39 ¢ 4 (E15) (Protocol signed 30.V.39 but
never ratified).

Table Il shows various types of declaration made for acceptance of the
compulsory jurisdiction of the Permanent Court of International Justice,
classified from the viewpoint of ostensible duration :

110
499 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

TABLE II. DURATION OF DECLARATIONS UNDER THE
PERMANENT COURT OF INTERNATIONAL JUSTICE

* Declarations still valid pursuant to Article 36, paragraph 5, of the Statute of the
International Court of Justice.

1. Declarations Valid for a Fixed Period
(1) Five-year period

Denmark I (1921), Switzerland I (1921), Netherlands I (1921), Sweden I
(1921), Norway I (1921), Lithuania I (1921), Brazil I (1921), Luxembourg I
(1921), Finland I (1921), Austria I (1922), China (1922), Estonia I (1923),
Latvia I (1923), Ethiopia I (1926), Germany I (1927), Hungary I (1928), Italy
(1929), Latvia IT (1929), France II (1929), Greece I (1929), Lithuania IT (1930),
Yugoslavia (1930), Albania I (1930), Romania I (1930), Poland (1931), Ger-
many II (1933), Greece II (1934), Hungary IT (1934), Lithuania III (1935),
Albania II (1935), France HI (1936), Turkey (1936), Romania I (1936),
Austria ITI (1937), Monaco (1937), Egypt (1939), Liechtenstein (1939), Greece
III (1939).

(2) Ten-year period
Denmark IT (1925), Switzerland II (1926), Netherlands II (1926), Sweden II
(1926), Norway IT (1926), Finland II (1927), Austria II (1927), Estonia II
(1928), Spain (1928), Czechoslovakia (1929), Peru (1929), Siam I (1929),
Argentina (1935), Bolivia (1936), Denmark III (1936), Switzerland III (1936),
Netherlands ITI (1936), Sweden III (1936), Norway III (1936), Brazil II (1937),
Estonia III (1938), Siam II (1940).

(3) Fifteen-year period
France I (1924), Belgium (1925).

(4) Twenty-year period
Irish Free State (1929).

(5) Two-year period
Ethiopia IT (1932), Ethiopia III (1934).

(6) With a specified date of termination
Hungary III (1939).

(7) With a fixed period automatically renewed unless an advance notice of six
months is given
Luxembourg IT (1930) *.

2. Declarations for an Initial Fixed Period then
Valid until Notice of Termination Is Given

(1) Initial ten-year period
United Kingdom I (1929), II (1940), New Zealand I (1929), II (1940), Union of
South Africa I (1929), IT (1940), Australia I (1929), I (1940), India I (1929), IT
(1940), Canada (1929).

(2) Initial five-year period
Latvia III (1935), Iraq (1938).

(3) Initial six-year period
Persia (1930).

111
500 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

3. Declarations which Did not Contain any Reference to Duration
Portugal (1921), Salvador (1921), Costa Rica (1921), Uruguay (1921) *, Li-
beria (1921), Bulgaria (1921), Haiti (1921) *, Panama (1921) *, Dominican
Republic (1924) x, Guatemala (1926), Nicaragua (1929), Colombia I (1932),
Paraguay (1933), Colombia II (1937) x.

*

The following observations may be made from the analysis of Table II.

First, in the early period of the Permanent Court of International Justice
— in other words in the 1920s — most of the States signatory to the Statute
of the Permanent Court of International Justice (some of which did not
deposit the required ratification of the Protocol of Signature) accepted the
Optional Clause. Many of them did so for a fixed period, mostly five
years ; in addition, many renewed the period after the expiration of the
initial period. On the other hand — in particular at the very beginning of the
Permanent Court of International Justice — some declarations did not
specify any period at all for the duration of the declaration.

Secondly, the most remarkable development was in 1929, when Great
Britain introduced a new concept of the immediate terminability of a
declaration. Great Britain accepted compulsory jurisdiction in a declara-
tion which was stated to remain valid after the first ten-year period until
notice of termination was given. The declaration read in part as fol-
lows :

“I accept as compulsory ... the jurisdiction of the Court ... for
a period of ten years and thereafter until such time as notice may be
given to terminate the acceptance.” (P.C.LJ., Series E, No. 6,
p. 479.)

This example was followed by the then Commonwealth countries, such as
the Union of South Africa (19 September 1929), India (19 September
1929), New Zealand (19 September 1929), Australia (20 September 1929)
and Canada (20 September 1929). In the period of the Permanent Court of
International Justice this precedent was followed by Persia (2 October
1930), Latvia (31 January 1935), and Iraq (22 September 1938).

Thirdly, another new development was seen in 1930 with the action of
Luxembourg in making a declaration for a five-year period which would
automatically be renewed unless a six months’ advance notice was given.
The Declaration of Luxembourg read as follows :

“The present declaration is made for a period of five years. Unless it
is denounced six months before the expiration of that period, it shall

112
501 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

be considered as renewed for a specific period of five years and
similarly thereafter 1.”

*

Some declarations were terminated or amended while they were still
valid. Colombia, which on 6 January 1932 made a declaration without any
reference to duration, made a fresh declaration on 30 October 1937 which
was to continue for a ten-year period, in order to include a new reserva-
tion.

Paraguay, by a decree of 26 April 1938, withdrew the acceptance of
compulsory jurisdiction which had been expressed by its Declaration of
1933 (P.C.LJ., Series E, No. 14, p. 57). On being notified of Paraguay’s
withdrawal by the Secretary-General of the League of Nations, some
countries made express reservations as to the effectiveness of such denun-
ciation, which are contained in the publication of the Permanent Court
(P.CILJT. Series E, No. 15, p. 227).

Bolivia “makes the most formal reservations as to the legal value of the
decree and requests the Secretary-General to communicate these reser-
vations to the States signatories of the Statute and to the Members of the
League of Nations”.

Belgium “in taking note of this denunciation, feels bound to make all
reservations”.

Brazil “cannot accept such declaration without express reservation”.

Sweden “finds itself obliged to formulate every reservation ; in its view it
will be for the Court itself, should occasion arise, to pronounce on the
legal effects of that declaration”.

Czechoslovakia “is of opinion that, in the absence of any provision in the
Statute regarding the denunciation of declarations, the matter is one in
which reference should be made to the general rules of international law
concerning the termination of international undertakings”.
Netherlands “while not opposed to the denunciation, finds itself obliged
to formulate every reservation as regards the right of States to denounce
treaties which do not contain a clause to that effect”.

On 7 September 1939, the United Kingdom, which had, as noted above,
made a declaration on 19 September 1929 for an initial period of ten years
and then until notice of termination would be given, stated in its let-
ter:

“{T]he position to-day shows clearly that the Covenant has, in the

! This English translation was made by the International Court of Justice (see £.C/.
Yearbook 1982-1983, p. 73). It is different from the translation that appeared in the
Seventh Annual Report of the Permanent Court of International Justice (P.C.I.J., Series
E, No. 7, p. 464).

113
502 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

present instance, completely broken down in practice, that the whole
machinery for the preservation of peace has collapsed, and that the
conditions in which His Majesty’s Government accepted the Optional
Clause no longer exist ...

I am, therefore, directed to notify you that His Majesty’s Govern-
ment, believing themselves to be firmly defending the principles on
which the Covenant was made, will not regard their acceptance of the
Optional Clause as covering disputes arising out of events occurring
during the present hostilities.” (P.C.LJ., Series E, No. 16, p. 339.)

Other Commonwealth nations, such as New Zealand, the Union of South
Africa, Australia, India and Canada, followed this example. Similarly,
France, which on 7 April 1936 had made a declaration for a five-year
period, sent the Secretary-General of the League of Nations on 10 Sep-
tember 1939, a letter which read in part :

“Les conditions dans lesquelles le Gouvernement frangais avait
adhéré à cette clause se trouvent aujourd’hui profondément modi-
fiées. En particulier, depuis que le système de règlement des conflits
internationaux établi par le Pacte de la Société des Nations n’est plus
regardé comme liant uniformément et obligatoirement tous les
Membres de la Société des Nations, la question de la belligérance et
des droits des neutres apparaît sous un aspect entièrement nouveau.

Le Gouvernement français considère donc, comme le Gouverne-
ment britannique, dont le point de vue vous a été exposé d’autre part,
que son acceptation de la clause de Particle 36 du Statut de la Cour
permanente de Justice internationale ne peut plus désormais avoir
d’effet à l’égard des différends relatifs à des événements qui vien-
draient à se produire durant le cours de la présente guerre.” (/bid.,
p. 337.)

These letters were received in the Secretariat of the League of Nations
and transmitted to States parties to the Protocol of Signature and others.
The publication of the Permanent Court of International Justice shows
that some reservations were made (ibid., p. 333). In its reply of 25 Sep-
tember 1939, the Swiss Government made “reservations . . . regarding the
principle which a denunciation effected in such circumstances involves”.
In their letters, Belgium (20 November 1939), Netherlands (30 November
1939), Peru (12 December 1939), Estonia (5 January 1940) and Siam (6
May 1940) reserved their points of view. The Danish Government, on 29
January 1940, also made reservations concerning declarations of the Com-
monwealth nations and France “more particularly as regards their effect in
relation to disputes not immediately connected with the war”. The Nor-
wegian and Swedish Governments, on 15 and 20 December 1939 respec-
tively, made “reservations as to the legal effect of the above acts of
denunciation, more particularly as regards disputes not connected with the
war”. They also drew attention to the

114
503 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

“fact that, in virtue of Article 36 of the Statute and the declarations
relating thereto, it rests with the Court itself to decide questions as to
its own jurisdiction and, should the case arise, to pronounce upon the
validity and, if necessary, the scope of the acts of denunciation re-
ferred to.”

The Brazilian Government, on 7 May 1940 also made reservations as
regards this “unilateral action . . . in so far as concerns all matters relating
to its rights as a neutral in the present war and coming within the juris-
diction of the Court”.

It is interesting to note in this connection that Sweden suggested that,
should the case arise, the Court should pronounce on the legal effect or the
scope of the denunciation of the existing declarations relating to the
withdrawal of the Declaration of Paraguay, and that Sweden and Norway
jointly made a similar suggestion concerning the amendments of the
Commonwealth nations and France.

It is also to be noted that a number of States added various reservations
at the time when they renewed their previous declarations upon expiration
of the period stipulated.

III

I will now try to analyse the period of validity of the declarations of
acceptance of the Optional Clause made under Article 36, paragraph 2, of
the Statute of the International Court of Justice. The States which have
made these declarations amount to 47 in number. Table ITI may be useful
for appreciating any further analysis of this problem ! :

TABLE II]. DECLARATIONS UNDER THE INTERNATIONAL COURT
OF JUSTICE (IN CHRONOLOGICAL ORDER)

The figures in brackets indicate the year of the Z CJ. Yearbook.
*The latest declarations which have expired or were terminated.
T = year of termination.

E = year of expiration.

Netherlands I: S.VIIL.46 (46/47) ; Il : 1.VIIL.S6 (55/56).

United States I: 14.VIII.46 (46/47) ; IT : 6.1V.84.

China * 26.X.46 (46/47), T 1972.

Norway I: 16.X1.46 (46/47) ; I: 17.XIL.56 (56/57) ;
III : 2.1V.76 (75/76).

Denmark I: 10.XI1.46 (46/47) ; II : 10.XI1.56 (56/57).

! The date indicated in the table is the date of the signature of the declaration, which is
sometimes the same as the date of the deposit of the declaration with the Secretariat of the
United Nations. Although it is questionable whether a declaration becomes effective from
the date of the signature of the declaration or from the date of the deposit of the
declaration with the United Nations, for the sake of convenience I refer only to the date of
the signature of the declaration in the table.

115
504 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Guatemala *
France *

Sweden .
Turkey *
Philippines
Mexico
Honduras
Brazil *
Belgium
Bolivia *
Pakistan

Switzerland
Liechtenstein
Israel

Liberia

Australia

United Kingdom

South Africa *
Portugal
India

Egypt
Cambodia (now
Democratic

Kampuchea)

Sudan
Finland
Japan
Somalia
Uganda
Kenya
Nigeria
Gambia
Malawi
Malta

Mauritius
Swaziland

116

27.L47 (46/47), E 1952.

I: undated : 1947 ? (46/47) ; II : 10.VIL.59 (58/59) ;
JIT: 16.V.66 (65/66), T 1974.

1: 5.IV.47 (46/47) ; If: 6.1V.57 (56/57).
‘T: 22.V.47 (47/48) : IL : 19.1V.54 (53/54), E 1972.
I: 12.VIL47 (47/48) ; II : 23.XHL.71 (71/72).

23.X.47 (47/48).

1: 2.11.48 (47/48) ; II : 20.11.60 (59/60).
12.11.48 (47/48), E 1953.

I: 10.VI.48 (47/48) ; IL: 3.IV.58 (57/58).
5.VII.48 (47/48), E 1953.

1: 22.VI.48 (47/48) ; IT : 23.V.57 (56/57) ;
TIF: 12.1X.60 (60/61).

6.VIL48 (47/48).

10.II1.48 (47/48).

1: 4.1X.50 (50/51) ; II : 3.X.56 (56/57).
3.111.52 (51/52).

I : 6.11.54 (53/54) ; IL : 13,111.75 (74/75).

I: 1VI.SS (54/55); II : 31.X.55 (55/56) ;
IIE : 18.1V.57 (56/57) ; IV : 26.XE.58 (58/59) ;
V:27.XI.63 (63/64); VI: 1.1.69 (68/69).

12.1X.55 (55/56), T 1969.
19.XIE.55 (55/56).

1: 7.1.56 (55/56) ; II : 14.1X.59 (59/60) ;
WWE: 15.1X.74 (74/75).

18.VII.57 (56/57).

9.IX.57 (57/58).

30.XI1.57 (57/58).
25.V1.58 (57/58).
15.1X.58 (58/59).
25.111.63 (62/63).
3.X.63 (63/64).
12.1V.65 (64/65).
14.VIIL6S (65/66).
14.VI.66 (65/66).
22.X1.66 (66/67).

I: 29.X1.66 (66/67) : IL: 2.1.81 (80/81) ;
III : 2.1X.83 (83/84).

4.1X.68 (68/69).
9.V.69 (68/69).
505 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

Botswana 14.1.70 (69/70).
Canada 7.1V.70 (69/70).
Austria 28.1V.71 (70/71).
Costa Rica 5.11.73 (72/73).
El Salvador 26.X1.73 (73/74).
New Zealand 22.1X.77 (77/78).
Togo 24.X.79 (79/80).
Barbados 24.VII.80 (80/81).

Table IV has been prepared in order to indicate various types of de-
clarations for acceptance of compulsory jurisdiction under the Statute
of the International Court of Justice, classified from the viewpoint of
ostensible duration :

TABLE IV. DURATION OF DECLARATIONS UNDER
THE INTERNATIONAL COURT OF JUSTICE

+ Declarations which were terminated and replaced by new declarations.
* Declarations which have expired or were terminated.

1. Declarations Valid for a Fixed Period

(1) Period of either five or ten years
Norway I (1946)+, Denmark I (1946) +, Guatemala (1947) *, France I
(1947 ?) +, Sweden I (1947) +, Turkey I (1947) +, Honduras I (1948) +, Brazil
(1948) *, Belgium I (1948) +, Bolivia (1948) *, ‘Israel I (1950) +, “Turkey II
(1954) *, + El Salvador (1973).

(2) With a fixed period automatically renewed
Costa Rica (1973).

(3) With a fixed period which may be automatically renewed unless a notice of
termination is given in advance (six months)
Netherlands II (1956), Norway II (1956) +, Denmark IT (1956), Sweden II
(1957), Finland (1958), New Zealand (1973), Norway III (1976).

(4) Valid until a notice of termination is given in advance (six months or one
year)
United States (1946), Mexico (1947), Switzerland (1948), Liechtenstein
(1950).

2. Declarations Valid until Notice of Termination Is Given

(1) With initial fixed period
Netherlands I (1946) +, Philippines I (1947) +, Pakistan I (1948) +, Liberia
(1952), Portugal (1955), Cambodia (1957), Belgium II (1958), Japan (1958),
France II (1959) +, Austria (1971).

(2) Without initial fixed period
Australia I (1954) +, United Kingdom I (1955) +, United Kingdom II (1955) +,

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506 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

South Africa (1955) *, India I (1955) +, Israel 1 (1956), Sudan (1957), Pakistan
II (1957) +, United Kingdom III (1957) +, United Kingdom IV (1958) +, India
II (1959) +, Pakistan III (1960), Somalia (1963), United Kingdom V (1963) +,
Kenya (1965), France III (1966) *, Gambia (1966), Malta I (1966) +, Mauritius
(1968), United Kingdom VI (1969), Canada (1970), Philippines IT (1971),
India III (1974), Australia II (1975), Barbados (1980), Malta IE (1981) *.

3. Declarations which Do not Contain any Reference to Duration or Are
Made for an Indefinite or Unlimited Period !
Honduras IJ (1960), Uganda (1963), Nigeria (1965), Malawi (1966), Swaziland
(1969), Botswana (1970), Togo (1979), Malta THT (1983).

On the basis of examination of these declarations, I would make the
following observations.

First, of the declarations made for a fixed period (see Table IV, 1 (1) and
(2)), those of Guatemala, Brazil, Bolivia and Turkey IT have expired ; and
those of Norway I, Denmark I, France I, Sweden I, Honduras I, Belgium I
and Israel I were replaced by differently formulated declarations. The only
Declaration which is still valid for a fixed period is that of El Salvador,
which renewed its Declaration for a further ten-year period in 1978. The
Declaration of Costa Rica has been renewed twice and is still valid.

Secondly, regarding declarations with an initial fixed period and
remaining valid until notice of termination is given (see Table IV, 2 (1))
(i.e., declarations of the type initiated by the United Kingdom’s Declara-
tion in 1929), the initial fixed period of all of these declarations has already
expired. The declarations of Netherlands I, Philippines I, Pakistan I and
France II were replaced by differently formulated declarations ; and those
of Liberia, Portugal, Cambodia, Belgium II, Japan and Austria are now to
remain valid until notice of termination is given. In this respect, these
declarations at present have the same effect as those which simply remain
valid until notice of termination is given (Table IV, 2 (2)), such as those of
Israel II, Sudan, Pakistan III, Somalia, Kenya, Gambia, United Kingdom
VI, Mauritius, Canada, Philippines II, India UJ, Australia If and Barba-
dos. (South Africa, France III and Malta I? in Table IV, 2 (2), were
terminated in 1967, 1974 and 1983 respectively.)

' Honduras II was for an indefinite period, and that of Togo for an unlimited
period.

2 Malta II was to replace Malta I but was withdrawn in 1982 in order to return to
Malta I.

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Thirdly, those declarations without any fixed period, or those which
were made for an indefinite or unlimited period (Table IV, 3), have been
very limited in number ; Honduras II, Uganda, Nigeria, Malawi, Swazi-
land, Botswana, Togo and Malta II. In addition, the following five decla-
rations, which were made in the period of the Permanent Court of Inter-
national Justice, still remain in force pursuant to Article 36, paragraph 5, of
the Statute of the International Court of Justice : Uruguay (1921), Panama
(1921), Haiti (1921), Dominican Republic (1924) and Colombia II
(1937).

Fourthly, those declarations which may be terminated only when
advance notice of termination (six months or one year) is given (Table IV, 1
(4)) (Le., declarations of the type initiated by the Luxembourg Declaration
in 1930) were made by the United States, Mexico, Switzerland and Liech-
tenstein ; and the Declarations of Netherlands IT, Denmark II, Sweden II,
Finland, New Zealand and Norway II] are still valid for a renewed fixed
period of time unless the renewal is denounced by advance notice of six
months (Table IV, 1 (3)). The Declaration of Luxembourg made in 1930,
which has been carried over in pursuance of Article 36, paragraph 5, of the
Statute of the International Court of Justice, is also added hereto.

*

I now turn to the practice of the termination of declarations during the
period of the International Court of Justice. The declarations made under
the Permanent Court of International Justice by Iran (formerly Persia),
Australia, the United Kingdom, South Africa, India, Canada and New
Zealand — to remain valid until notice of termination would be given,
which was carried over to the International Court of Justice pursuant to
Article 36, paragraph 5, of the Statute — were in fact terminated in 1951,
1954, 1955, 1955, 1956, 1970 and 1977 respectively ; and the Declaration of
El Salvador made in 1921, which did not have any reference to period and
was carried over to the International Court of Justice, was also terminated
in 1973. Except for the case of Iran, which simply denounced the Decla-
ration on 9 July 1951, these former declarations from the period of the
Permanent Court of International Justice were all replaced by the respec-
tive new declarations which contained new reservations or amended con-
ditions.

Many cases are also reported in which valid declarations made under the
Statute of the International Court of Justice were terminated and replaced
by new declarations. The sign “+” in Table IV indicated these examples,
and it is important to note that these replacements always took place in
order to change the conditions of acceptance of the compulsory jurisdic-
tion or to add new reservations to the former declarations. In this respect it
is noted that Israel informed the Secretary-General of the United Nations
on 28 February 1984 that it was amending its 1956 Declaration. In two
cases (South Africa and France) a declaration which was supposed to

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remain valid until notice of termination would be given was simply ter-
minated without being replaced by a new declaration. South Africa gave
notice of the immediate withdrawal and termination on 12 April 1967 ;
France terminated its declaration by a letter of 2 January 1974.

IV

An attempt to amend the terms of reservations would seem to amount in
effect to the same as the termination of the declarations containing the
reservations in question, in so far as an existing obligation under the
Optional Clause is terminated. In this respect, another significant trend
concerning declarations accepting the Optional Clause cannot be over-
looked : today there is quite a number in which the declarant States have
reserved the right to exclude from submission to the Court’s jurisdiction
any given category of dispute.

This precedent was initiated by Portugal in 1956. The Declaration of
Portugal of 19 December 1955 read, in part, as follows :

“The Portuguese Government reserves the right to exclude from the
scope of the present declaration, at any time during its validity, any
given category or categories of disputes, by notifying the Secretary-
General of the United Nations and with effect from the moment of
such notification.” (Z.CJ. Yearbook 1955-1956, p. 186.)

When the Declaration of Portugal was transmitted to the States parties to
the Statute of the International Court of Justice, the Government of
Sweden responded on 23 February 1956 by making a reservation on its
position concerning Portugal’s reservation :

“The Swedish Government is compelled to state that in its opinion
the cited condition in reality signifies that Portugal has not bound
itself to accept the jurisdiction of the Court with regard to any dispute
or any category of disputes. The condition nullifies the obligation
intended by the wording of Article 36, paragraph 2, of the Statute
where it is said that the recognition of the jurisdiction of the Court
shall be ‘compulsory ipso facto’.

For the stated reason, the Swedish Government must consider the
cited condition as incompatible with a recognition of the ‘Optional
Clause’ of the Statute of the International Court of Justice.” U.CJ.
Pleadings, Right of Passage over Indian Territory, Vol. 1, p. 217.)

In fact, however, the precedent of the reservation made by Portugal has
been followed by a number of States, as shown in the following table.

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TABLE V. RESERVATIONS OF THE RIGHT OF
IMMEDIATE AMENDMENT

Portugal (1955), Somalia (1963), Kenya (1965), France IT (1966), Malta I
(1966), Malawi (1966), Mauritius (1968), United Kingdom VI (1969), Swazi-
land (1969), Botswana (1970), Canada (1970), El Salvador (1973), Norway III
(1976), New Zealand (1977), Togo (1979) and Malta III (1983) (in a limited
area in the case of Norway III and New Zealand).

It is particularly to be noted that El Salvador made this reservation to be
effective at any time during the period which it fixed in its declaration.

V

To sum up, the present situation with respect to the duration of decla-
rations is as follows :

Declarations not to be terminated before the fixed period expires or without
advance notice of a fixed period to terminate
Costa Rica, El Salvador (Table IV, 1 (1) (2).

Denmark, Finland, Liechtenstein, Mexico, Netherlands, New Zealand,
Norway, Sweden, Switzerland, United States (Table IV, 1 (3) (4)) !.

Luxembourg (pursuant to Art. 36, para. 5, of the Statute).

Declarations terminable at any time by notice
Australia, Austria, Barbados, Belgium, Canada, Democratic Kampu-
chea (formerly Cambodia), Gambia, India, Japan, Kenya, Liberia, Mau-
ritius, Pakistan, Philippines, Portugal, Somalia, Sudan, United Kingdom
(Table IV, 2 (1) (2)).

Declarations which do not contain any reference to duration or are made for
an indefinite or unlimited period
Botswana, Honduras, Malawi, Malta, Nigeria, Swaziland, Togo, Uganda
(Table IV, 3).
Colombia, Dominican Republic, Haiti, Panama, Uruguay (pursuant to
Art. 36, para. 5, of the Statute).

! New Zealand and Norway reserved the right to amend their declarations but only in
the special case arising in the light of the results of the Third United Nations Conference
on the Law of the Sea in respect of the settlement of disputes.

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The declarations of the States here italicized are those in which the right is
reserved to exclude at any time from submission to the Court’s jurisdiction
any given category of disputes (Table V)!.

The above list clearly demonstrates the fact that a great number of States
have made their declarations with an express statement that their decla-
rations may be terminated or amended at any time and with immediate
effect. I have also indicated a number of cases where declarations have been
terminated. Thus to my mind it is quite untenable to argue that those
declarations without any reference to duration (the number of which, as
mentioned above, is very limited) can never be terminated or amended
because of the lack of a clause concerning the period of validity of the
declarations.

The Judgment of the Court states :

“(T]he right of immediate termination of declarations with indefi-
nite duration is far from established. It appears from the requirements
of good faith that they should be treated, by analogy, according to the
law of treaties, which requires a reasonable time for withdrawal from
or termination of treaties that contain no provision regarding the
duration of their validity.” (Para. 63.)

I am astonished to find such an argument put forward by the Court. It
seems that the Court is quite unaware of the development of the Optional
Clause during the past decades : is it the conclusion of the Court that, since
in its view treaty law should be applicable to acceptance of the Optional
Clause, declarations which have been made on condition that they may be
amended or terminated by a notice of the declarant States at any time.
should be invalid or unacceptable as contrary to treaty law ? For a treaty
containing such a clause conferring a unilateral right entirely to alter or
terminate terms of the treaty with immediate effect would surely be
impossible ; it would not be a treaty. Yet this is now almost normal
practice in declarations of acceptance of the Optional Clause.

Chapter 3. Effect vis-à-vis Nicaragua of the United States
Termination of its Obligation under the Optional Clause

If Nicaragua were, contrary to my own view, subject to the compulsory
jurisdiction of the International Court of Justice pursuant to Article 36,
paragraph 5, of the Statute, the declaration which Nicaragua made in 1929
without any fixed period of duration should be interpreted, in view of the
past practice as mentioned above, as being terminable at any time. On the
other hand, the United States, whose declaration in 1946 was expressed to
remain in force until the expiration of six months after notice of termi-

! See note 1 on p. 509.

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$11 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

nation was given, amended its declaration just a few days before the seisin
of the Court with this case.

Thus the question of reciprocity arises, in a case where for one party the
adherence to the Optional Clause is terminable at any time and the other
party is bound by its own declaration not to terminate for a certain fixed
period. The Optional Clause in effect plays a double role : one, positive in
that it may on occasion enable a unilateral application to succeed, and the
other one negative in that it may sometimes result in a Respondent being
brought to the Court against its actual will. Thus a State, by declaring its
acceptance of the compulsory jurisdiction of the Court, may seek to
acquire /ocus standi in a case in which the odds are in its favour, but on the
other hand it may, where it feels placed at a disadvantage, try to release
itself from the compulsory jurisdiction of the Court by the termination or
amendment of its declaration.

In view of the fact that the Optional Clause was so drafted to cause each
declarant State to “recognize as compulsory ... the jurisdiction of the
Court .. . [only] in relation to any other State accepting the same obliga-
tion” (Art. 36, para. 2, of the Statute), is it reasonable or equitable to allow
a party which, as a Respondent, is free to escape at any time from the
compulsory jurisdiction of the Court to take advantage, as an Applicant,
by imposing upon the other party the burden of inescapability, which it
does not itself bear ! ? The reciprocity of the obligation must exist at the
date of the seisin of the case, and acceptance of the Court’s jurisdiction by
the Applicant and the Respondent must be current at that date. I am of the
view that Nicaragua is not in a position to invoke the obligation which it
does not bear and which the United States, as Respondent, has borne
because of its previous declaration. Thus the United States is fully
exempted from the Court’s jurisdiction in relation to Nicaragua on the date
of Nicaragua’s Application.

The interpretation of the declaration of acceptance of the compulsory
jurisdiction of the Court as I have presented it above may be criticized as an
attempt to-nullify-the-original intention of the Optional-Clause-Such
criticism I would answer as follows : this clause was first proposed at the
beginning of the Permanent Court of International Justice shortly after the
termination of the First World War, following failure to actualize the
idealistic view that, as in a national domestic society, a court should be

' Interesting in this respect is a new type of reservation initiated in 1959. by India,
which had been an adherent to the Optional Clause, to prevent a non-declarant State
from suddenly taking advantage as an Applicant of the immediate acceptance of the
Optional Clause. This declaration of 14 September 1959 excluded a case in which “the
acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was
deposited or ratified less than twelve months prior to the filing of the application
bringing the dispute before the Court” (.C.J. Yearbook 1959-1960, p. 242). This for-
mula was followed by Somalia (25 March 1963), Malta (29 November 1966), Mauritius
(4 September 1968) and the United Kingdom (1 January 1969).

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512 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. ODA)

provided with full jurisdiction over any dispute in the international com-
munity. The drafters of the Statute of the Permanent Court of Interna-
tional Justice might have thought that this Optional Clause would be a first
step towards the final goal that the International Court should be given full
jurisdiction over disputes. This same idea concerning the Optional Clause
was also prevalent when the new Statute of the Internationa! Court of
Justice was being prepared at the San Francisco Conference in 1945
against the background of regret for the “untold sorrow to mankind”
brought by the “scourge of war” (see the Preamble to the United Nations
Charter).

The rule of law should prevail in the international community as in
modern domestic society, while the supremacy of the courts is always to be
maintained. Yet the reality of the international community — where a lack
of confidence in international law still prevails and the law-enforcement
machinery is still non-existent — had not reached a stage that could satisfy
the dreams of the idealists in either the early 1920s or the mid-1940s.

I note that, in contrast to the period of the Permanent Court of Inter-
national Justice, when a great majority of the States parties were subject to
the compulsory jurisdiction of the Court under the Optional Clause, the
present situation in the 1980s is that adherence to the compulsory juris-
diction of the Court has been declared by less than one-third of the parties
to the Statute of the International Court of Justice. In spite of the appeal
made by the United Nations in 1974 in General Assembly resolution 3232
(XXIX) concerning the review of the role of the International Court of
Justice, which read in part :

“[The General Assembly] [rjecognizes the desirability that States
study the possibility of accepting, with as few reservations as possible,
the compulsory jurisdiction of the International Court of Justice in
accordance with Article 36 of its Statute’,

only two States, Togo and Barbados, have adhered to the Optional Clause
in the past decade.

Itis a striking fact that those States which at present in their declarations
impose upon themselves the obligation not to escape from the compulsory
jurisdiction of the Court in the face of the possibility of being brought
before the Court, are extremely limited in number — three countries in the
western hemisphere, Costa Rica, Mexico and the United States, and seven
Western European countries, Denmark, Finland, Liechtenstein, Luxem-
bourg, Netherlands, New Zealand, Norway, Sweden and Switzerland. In
addition, the Optional Clause, which was drawn up in 1920 without fore-
seeing any reservations, is now encumbered by the great variety of reser-
vations attached to it.

The Court should not close its eyes to the practice and experience over
the last 40 years in the international community, which has given a new
meaning to the Optional Clause. The basic principle that the jurisdiction of

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any Judicial institution in the international community is based upon the
consent of sovereign States has never been changed, and the role of the
Optional Clause can never override that principle. In spite of this, the
Optional Clause would certainly remain useful in the event that any bona
fide parties to a dispute, though not willing to initiate proceedings by
concluding a special agreement, may not object to coming before the Court
if the other party is willing to do so. On the other hand, I am sure that the
interpretation of the Optional Clause given by the present Judgment will
inevitably induce declarant States to terminate their declarations or at least
drop from them any advance notice clause, so as to avoid having to answer
any case unilaterally brought by other States, which themselves can take
advantage of withdrawing at any time from their obligations under the
Court’s jurisdiction. This would thus vastly diminish the importance of the
Optional Clause. —

CONCLUSIONS

Thus the conclusions I have reached are as follows : first, there is no
ground for assuming that Nicaragua, to which Article 36, paragraph 5, of
the Statute cannot apply, can be held to have /ocus standi in the present
proceedings on the basis of acceptance of the Optional Clause ; secondly,
assuming arguendo that Nicaragua has locus standi in the present proceed-
ings, the Application cannot be entertained under the Optional Clause,
because the United States excluded, before the seisin of the case, the type
of dispute at issue from its obligation under that clause in its relation to
Nicaragua ; hence Nicaragua cannot invoke the fixed duration of the
United States obligation to the Court’s jurisdiction.

I regret that I have had no time to discuss the so-called Vandenberg
reservation, but even without invoking it the United States, for the reasons

I have stated above, cannot, in my view, be subjected to the Court’s
jurisdiction under the Optional Clause for this particular case.

(Signed) Shigeru ODA.

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