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Stanimir A. Alexandrov, Accepting the Compulsory Jurisdiction of the International
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Accepting the Compulsory Jurisdiction of the
International Court of Justice with Reservations:
An Overview of Practice with a Focus on Recent
Trends and Cases
Stanimir A. Alexandrov*
Keywords: compulsory jurisdiction; International Court of Justice; reservations to

compulsory jurisdiction; Statute of the International Court of Justice.
Abstract. States can accept the jurisdiction of the International Court of Justice with
respect to all or certain categories of legal disputes by means of unilateral declara-
tions. This article examines the reservations to the acceptance of the compulsory
jurisdiction that states include in such declarations. It reviews the practice of states
and traces the trends in drafting and adopting reservations. It also analyzes the jurispru-
dence of the Permanent Court of International Justice and the International Court of
Justice in relation to the interpretation of various reservations, particularly in recent
cases, illustrating the effectiveness or ineffectiveness of different types of reserva-
tions.
1. INTRODUCTION
The Statute of the International Court of Justice (ICJ) allows states to

accept unilaterally the Court's jurisdiction with respect to all or certain
categories of legal disputes. Against the odds, the practice of accepting
the Court's jurisdiction by means of unilateral declarations has expanded.
Many states have felt that they can protect themselves against being named
as respondents in disputes that they would not want to adjudicate by
excluding such disputes from the scope of their acceptance. But, according
to the principle of reciprocity consistently applied by the Court throughout
the years, those states can be prevented from bringing other states before
the Court for those same categories of disputes. Thus, a state that 'over-
protects' itself severely restricts its own right to initiate international
adjudication. In many cases states have discovered that their reservations
excluding certain categories of disputes from compulsory adjudication
have prevented them from seeking justice before the Court rather than
protected them against unwanted adjudication.
Learning from the practice of the Court, states have abandoned some
reservations that have proven more harmful than helpful. They have crafted
* Foreign Counsel, Powell, Goldstein, Frazer & Murphy LLP, Washington, DC, USA. I wish
to express my gratitude to Judge Schwebel, former President of the International Court of
Justice, for his valuable comments and suggestions.
14 Leiden Journal of International Law 89-124 (2001)

© 2001 Kluwer Law International
90 Accepting the Compulsory Jurisdiction of the ICJ 14 LJIL (2001)
new reservations that offer better protection against undesirable lawsuits,

while leaving them the freedom to initiate proceedings against other states.
In 1998, for example, essentially following a 'recommendation' made by
the Court, Nigeria amended its declaration by adding a new reservation
that would have protected it against the claim brought earlier by Cameroon
and would protect Nigeria in similar situations in the future.
Several cases have demonstrated that the line between avoiding the
adjudication of some disputes while preserving the freedom to adjudicate
others is a fine one to walk. Some states have had to sacrifice their ability
to file cases against other states in order to make sure they do not become
respondents in adjudication that they have striven to avoid. Quite recently,
for example, Yugoslavia chose to exclude from its acceptance of the
Court's jurisdiction disputes predating its declaration. As a result, the Court
declined jurisdiction over Yugoslavia's claim against several NATO states
for the bombing campaign in the spring of 1999, which began prior to the
date of Yugoslavia's declaration.
This article reviews the practice of the Permanent Court of International
Justice (PCIJ) and the ICJ to show the trends in drafting and adopting
reservations in declarations accepting the Court's compulsory jurisdiction.
It analyzes the Court's interpretation of various reservations, particularly
in recent cases, illustrating the effectiveness or ineffectiveness of different
types of reservations. The article first briefly explains the nature of the
compulsory jurisdiction of the Court and its acceptance through unilat-
eral declarations. It then discusses the admissibility of reservations in such
declarations and their legal effect. Further, the application of the prin-
ciple of reciprocity to reservations is analyzed in greater detail. Three main
categories of reservations are considered for that purpose: reservations
ratione temporis, reservations ratione materiae, and reservations ratione
personae.
2. ACCEPTANCE OF THE COMPULSORY JURISDICTION OF THE

INTERNATIONAL COURT OF JUSTICE
The basis of the jurisdiction of the International Court of Justice is the

consent of the parties. No state can be compelled without its consent to
submit a dispute with another state to international adjudication. In the
words of the Court, the principle that "the Court can only exercise juris-
diction over a state with its consent" is "a well established principle of
international law embodied in the Court's Statute." 1 A state that wishes
to express its consent to the jurisdiction of the Court is required to take
1. Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United
States of America), Judgment of 15 June 1954, 1954 ICJ Rep. 19, at 32 [hereinafter:
Monetary Gold]. See also East Timor (Portugal v. Australia), Judgment, 1995 ICJ Rep. 87,
at 101, para. 26.
Stanimir A. Alexandrov
two separate steps. First, it must become a party to the Statute of the
Court.2 This first step establishes a state's consent to assume the obliga-
tions incumbent upon it under the Statute, but is not sufficient to estab-
lish the jurisdiction of the Court to adjudicate a specific legal dispute. A
second, independent act of consent is required, an acceptance of the Court's
jurisdiction under the relevant provisions of the Statute.
This second, independent act of consent can cover a specific dispute3
or all or certain categories of legal disputes. When states agree in advance
to refer to the Court all or certain categories of legal disputes, the Court
exercises its compulsory jurisdiction. The Court has stated:
The characteristic of this compulsory jurisdiction is that it results from a previous

agreement which makes it possible to seise the Court of a dispute without a Special
Agreement, and that in respect of disputes subject to it, the Court may be seised
by means of an Application by one of the parties.4
The obligation of a state to accept the Court's jurisdiction with respect to

all or certain categories of legal disputes can be expressed in different
ways. First, such consent can be expressed in a treaty. Second, the com-
pulsory jurisdiction of the Court can be accepted by a unilateral declara-
tion pursuant to Article 36(2) of the Statute of the Court. By making a
declaration, a state recognizes "as compulsory ipso facto and without
special agreement the jurisdiction of the Court." The consent of a state
to adjudicate a specific dispute is thus established on the basis of its
unilateral declaration.
The compulsory jurisdiction of the Court under Article 3 6(2) is, in fact,
optional. States have the option to accept it and can do so under terms
and conditions they determine themselves. The Court has stated:
Declarations of acceptance of the compulsory jurisdiction of the Court are facul-

tative, unilateral engagements, that states are absolutely free to make or not to
make. In making the declaration a state is equally free either to do so uncondi-
tionally and without limit of time for its duration, or to qualify it with conditions
or reservations. 5
2. Under Art. 35(1) of the Statute, the Court "shall be open to all states parties to the present
Statute." To become a party to the Statute a state must either be a member of the United
Nations or accept the conditions specified in Art. 93(2) of the Charter. States that are not
parties to the Statute may still consent that the Court be open to them by accepting the
conditions specified by the Security Council under Art. 35(2) of the Statute.
3. States can accept jurisdiction with respect to a specific dispute in several ways. The parties
to a dispute can refer it to the Court by a special agreement (compromis) under Art. 36(1)
of the Statute. A state can accept a recommendation by the Security Council under Arts.
33 and 36 of the UN Charter. A state can also accept jurisdiction by its conduct (jurisdic-
tion on the basis of the principle of forum prorogatum).
4. Nottebohm Case (Liechtenstein v. Guatemala), Preliminary Objection, Judgment of 18
November 1953, 1953 ICJ Rep. 111, at 122.
5. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, 1984 ICJ Rep.
392, at 418, para. 59 [hereinafter: Nicaragua Jurisdiction].
Indeed, states have conditioned their acceptance by many, diverse, and

complicated reservations. Some authors have concluded on that basis that
the compulsory jurisdiction of the Court has been declining in signifi-
cance. 6 The recent trend of acceptance of the compulsory jurisdiction does
not support this conclusion. As of 31 December 2000, the declarations of
acceptance of the compulsory jurisdiction of 63 states are in effect.7 This
is a significant number even though only one of the permanent members
of the Security Council, the United Kingdom, currently subscribes to
Article 36(2) and several other leading states, such as Germany and Brazil,
do not. During the period 1990-2000, 13 states submitted declarations
accepting the compulsory jurisdiction and five states renewed or amended
previous declarations. In addition, the number of cases filed on the basis
of declarations accepting the compulsory jurisdiction has grown. In 11 of
the 24 cases currently pending before the Court, and in 16 of the 35 cases
filed before the Court since 1991, the applicant has asked the Court
to establish jurisdiction on the basis of declarations accepting the
compulsory jurisdiction (either exclusively or as one of the bases of
jurisdiction).
All declarations made during the last decade contain reservations. The
practice of accepting the compulsory jurisdiction with reservations has
thus continued and expanded. In recent years, the Court has had a number
of opportunities to discuss various reservations when deciding the question
of its jurisdiction. A new look at the role of reservations in declarations
accepting the compulsory jurisdiction of the Court is therefore in order.
6. Waldock, for example, thought that "expansion of the Court's compulsory jurisdiction is
hardly to be expected" and that the "immediate objective must [...] be to prevent the further
deterioration of state practice in framing the terms of declarations, which, if not checked,
may bring the whole system into disrepute and produce not an expansion but a contraction
of the Court's compulsory jurisdiction." See C.H.M. Waldock, Decline of the Optional
Clause, 32 BYBIL 244, at 287 (1955-56). See also M.W. Janis, Somber Reflections on the
Compulsory Jurisdictionof the InternationalCourt of Justice, 81 AJIL 144, at 146 (1987).
See, generally, G.L. Scott & C.L. Carr, The ICJ and Compulsory Jurisdiction: The Case
for Closing the Clause, 81 AJIL 57 (1987). But see S. Alexandrov, Reservations in Unilateral
Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice
(1995) for arguments and authorities supporting the opposite trend.
7. Information at http://untreaty.un.org/english/bible/englishinternetbible/bible/asp. For the
declarations made during the period of the League of Nations, see M.O. Hudson, The
Permanent Court of International Justice 1920-1942: A Treatise (1943) [hereinafter: Hudson
(PCIJ)]; M.O. Hudson (Ed.), World Court Reports, Vol. I (1934), Vol. III (1938), Vol. IV
(1943).
3. RESERVATIONS IN DECLARATIONS ACCEPTING THE COMPULSORY

JURISDICTION UNDER ARTICLE 36(2) OF THE STATUTE
3.1. Legal nature of declarations under Article 36(2)
A declaration under Article 36(2) is a unilateral act by which a state

accepts the compulsory jurisdiction and which, therefore, creates an
international obligation for the state.' This act establishes both the rela-
tionship between the state and the Court on the basis of the compulsory
jurisdiction and the relationship between the declarant state and other
states. The declaration is in the nature of a standing invitation, a general
offer extended by the declarant state to other states to adjudicate before
the Court all or certain categories of legal disputes. 9 As a result, other
states acquire the right to bring before the Court cases against the declarant
state while the declarant state acquires the right to bring cases against those
other states.
However, under Article 36(2), the general offer is not extended to all
states but only to "any other state accepting the same obligation." This is
logical, since the jurisdiction of the Court cannot exist without the consent
of the parties to a dispute which, in the case of the compulsory jurisdic-
tion under Article 36(2), is based on their unilateral declarations.10 To
that extent, a declaration under Article 36(2) is similar to a treaty oblig-
ation where one party consents to join a system of rights and obligations
based on a treaty.11 The Court has recognized this on several occasions.12
Recently the Court confirmed that "[a] declaration of acceptance of the
compulsory jurisdiction [...] is a unilateral act of state sovereignty" which,
at the same time, "establishes a consensual bond and the potential for a
jurisdictional link with the other states which have made declarations
8. See Phosphates in Morocco (Italy v. France), Preliminary Objections, Judgment, 1938 PCIJ
(Ser. A/B) No. 74, at 23.
9. In the words of Briggs, the jurisdiction of the Court pursuant to Art. 36 (2) "is in the nature
of a general offer, made by declarant to all other states accepting the same obligation, to
recognize as Respondent the jurisdiction of the Court [...]." See H.W. Briggs, Reservations
to the Acceptance of Compulsory Jurisdiction of the International Court of Justice, 93
RCADI 229, at 245 (1958).
10. Waldock noted that the "reciprocal obligation [of two states] to accept the Court's com-
pulsory jurisdiction is constituted by the joining together of their two declarations through
[Art. 36(2)]." Waldock, supra note 6, at 247.
11. See H. Lauterpacht, The Development of International Law by the International Court
345-346 (1958). Hudson pointed out that the 42 declarations effective as of the end of 1934
"were equivalent to 861 bipartite agreements." See Hudson (PCIJ), supra note 7, at 473,
note 1; see also Waldock, supra note 6, at 254.
12. Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Preliminary Objection,
Judgment, 1939 PCIJ (Ser. A/B) No. 77, at 87 [hereinafter: Electricity Company]; Right
of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment of
26 November 1957, 1957 ICJ Rep. 125, at 146 [hereinafter: Right of Passage (Preliminary
Objections)]; Nicaragua Jurisdiction, supra note 5, at 418, paras. 59-60.
pursuant to Article 36, paragraph 2, of the Statute."13 It is noteworthy that

declarations under Article 36(2) are deposited with the Secretary-General
of the United Nations, who, under Article 102 of the Charter, registers 14
them as international agreements in the United Nations Treaty Series.
Unilateral declarations under Article 36(2), however, have certain
specific features. They are not treaty texts resulting from negotiations. 15
It is thus very important for the Court to establish the scope of the consent
of the declarant state, i.e., the scope of the jurisdiction it intended to confer
upon the Court. In doing so, the Court has found that not all principles
that apply to the interpretation of a treaty can be applied to the interpre-
tation of a declaration in view of its unilateral character. 16 The Court
recently observed:
The r6gime relating to the interpretation of declarations made under Article 36 of

the Statute is not identical with that established for
17 the interpretation of treaties
by the Vienna Convention on the Law of Treaties
and "the provisions of that Convention may only apply analogously to

the extent compatible with the sui generis character of the unilateral
acceptance of the Court's jurisdiction." 18
The Court has tended to interpret the declarations under Article 36(2)
restrictively in order to avoid the risk of exceeding what the declarant state
intended. 19 It has ruled that a declaration "must be interpreted as it stands,
having regard to the words actually used. ' 20 Recently, in the Fisheries
Jurisdiction case, the Court emphasized that it must
interpret the relevant words of a declaration including a reservation contained

therein in a natural and reasonable way, having due regard to the intention of the
state concerned
21 at the time when it accepted the compulsory jurisdiction of the
Court.
In that case, Spain argued that the contra proferentem rule applied to
13. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment, 1998 ICJ Rep., para. 46
(not yet published). The texts of non-published ICJ decisions are available at the ICJ web
site, www.icj-cij.org.
14. See 1 United Nations Treaty Series XVI (1946-47) (Note by the Secretariat).
15. See Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment,
1952 ICJ Rep. 93, at 105.
16. Id., at 104-105.
17. Fisheries Jurisdiction, supra note 13, para. 46. See also Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment,
1998 ICJ Rep. 275, at 293, para. 30 [hereinafter: Land and Maritime Boundary].
18. Fisheries Jurisdiction, supra note 13, para. 46.
19. See Free Zones of Upper Savoy and the District of Gex, Judgment, 1932 PCIJ (Ser. A/B)
No. 46, at 138-139 [hereinafter: Free Zones]; Phosphates in Morocco, supra note 8, at
23-24.
20. Anglo-Iranian Oil Co., supra note 15, at 105.
declarations under Article 36(2).22 According to that rule, an ambiguous

text must be construed against the party who drafted it. The Court found
that the contra proferentem rule "may have a role to play in the interpre-
tation of contractual provisions" but "has no role to play in this case in
interpreting the reservation contained in [a] unilateral declaration [...]
under Article 36, paragraph 2, of the Statute. '"23
The obligations assumed by a unilateral declaration under Article 36(2)
arise when a specific dispute is submitted to the Court. Then the Court
must establish whether both the applicant and the respondent have
consented to adjudicate the dispute within the bounds of their unilateral
declarations. The task of the Court is complicated because states define
and limit the scope of their consent expressed in declarations under Article
36(2) by making such declarations with reservations.24
3.2. Permissibility of reservations and their 'severability' from the

declarations
No provision of the Statute explicitly authorizes a declarant state to make

reservations. State practice, however, has firmly established the legitimacy
of making reservations in declarations accepting the compulsory jurisdic-
tion of the Court. 25 The Court has consistently given effect to reserva-
tions where it found those reservations applicable. The permissibility of
reservations follows from the principle that the compulsory jurisdiction
"only exists within the limits within which it has been accepted., 26 In the
Fisheries Jurisdiction case the Court emphasized that it is for each state
"to decide upon the limits it places upon its acceptance of the jurisdiction
of the Court. ' 27 The reservations in declarations under Article 36(2) are
the tools used by states to determine the limits of their acceptance of the
22. Id., para. 43.

23. Id., para. 51.
24. The term 'reservation' in the context of the compulsory jurisdiction of the Court is used
in the broadest sense to include reservations, conditions, exclusions, exceptions, or
limitations on the jurisdiction recognized by the declaration. See Briggs, supra note 9,at
230; M.O. Hudson, The Permanent Court of International Justice - A Treatise 339 (1934);
Waldock, supra note 6, at 248-249. For example, in Phosphates in Morocco the Court
referred to the time limit as a limitation, and to reciprocity as a condition. Phosphates in
Morocco, supra note 8, at 22.
25. This practice was recognized and encouraged in resolutions of the League of Nations. See
League of Nations, Records of the Fifth Assembly, Plenary, at 225 (2 October 1924); Report
of the First and the Third Committee, Doc. A.135 (I).(1924), at 484; League of Nations,
Records of the Ninth Assembly, Plenary, at 183 (26 September 1928). For a commentary,
see D. Schindler, Les progrs de l'arbitrage obligatoire depuis la creation de la Societe
des Nations, 25 RCADI 237, at 286 (1928). The right to make reservations was confirmed
during the drafting of the Statute of the ICJ. See Report of Subcommittee D to Committee
IV/1 on Article 36 of the Statute of the International Court of Justice, UNCIO, Documents,
XIII, at 559 (31 May 1945).
26. Phosphates in Morocco, supra note 8, at 23.
compulsory jurisdiction. As the Court pointed out in the Case Concerning

the Aerial Incident of 10 August 1999, the right of states to attach
reservations to their acceptance of the compulsory jurisdiction has "long
been recognized" because reservations enable states "to define the para-
meters 2of8
the state's acceptance of the compulsory jurisdiction of the
Court.,
Reservations must, of course, be consistent with the Statute of the Court
since "the Statute of the Court is the basis and the very source of the
Declaration of Acceptance. 29 Whenever the consistency of a reservation
with the Statute is questioned, the issue arises whether such a reserva-
tion, if invalid, would invalidate the whole declaration or whether the reser-
vation can be separated or severed from the declaration.30 Applicant states
seeking to establish jurisdiction have had to argue that while a specific
reservation in the respondent state's declaration is invalid, the reservation
is separable from the declaration and the declaration remains as the basis
of the compulsory jurisdiction. The most recent example is the argument
put forward by Pakistan in the Case Concerning the Aerial Incident of 10
August 1999. Pakistan argued that an Indian reservation rationepersonae
had no legal effect but was separable from India's declaration and did not
invalidate it because it was "not so central as to constitute 'an essential
basis of the consent of India' to be bound by its declaration."3 1 In that case
the Court did not rule on the argument because it did not find the Indian
reservation inapplicable. As a general matter, however, the Court has not
accepted the argument of the severability of reservations. Judge Schwebel
summarized this view in the Fisheries Jurisdiction case:
[1]f it were to be accepted [...] that [...] the reservation lacks validity and is "a
nullity" [...],it does not follow that the Court has jurisdiction [...].On the contrary,
it follows that the Court is altogether without jurisdiction since the nullity or
ineffectiveness of [the] reservation
32 [...] entails the nullity or ineffectiveness of
the [...] declaration as a whole.
The FisheriesJurisdiction case offered an interesting example of how the

Court interpreted a reservation and provided useful guidance on the issues
of the freedom of making reservations and the severability of reserva-
tions from the rest of the declaration. In that case, the Court had to decide
28. Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction,
Judgment, 2000 ICJ Rep., para. 38 (not yet published) (hereinafter: Aerial Incident 1999],
citing Fisheries Jurisdiction supra note 13, para. 44.
29. See Certain Norwegian Loans (France v. Norway), Judgment of 6 July 1957, 1957 ICJ
Rep. 9, at 45-46 (Judge Lauterpacht, Separate Opinion) [hereinafter: Norwegian Loans].
30. See, e.g., Norwegian Loans (Judge Guerrero, Separate Opinion), id., at 68-70; Norwegian
Loans (Judge Lauterpacht, Separate Opinion), id., at 44-46 and 57-59.
31. Aerial Incident 1999, supra note 28, Memorial of Pakistan on Jurisdiction, para. D(1) (not
yet published).
32. Fisheries Jurisdiction, supra note 13 (President Schwebel, Separate Opinion, para. 7) (not
yet published).
whether the dispute was within the terms of a reservation in the Canadian
declaration of 1994. The applicant, Spain, did not claim that the reserva-
tion as such was invalid. Spain argued, instead, that the interpretation of
the reservation offered by Canada was incompatible with the Court's
Statute and that the reservation must be interpreted in compliance with
international law.33 The starting point of the Court's analysis was that the
interpretation of declarations under Article 36(2) and any reservations in
those declarations "is directed to establishing whether mutual consent has
been given to the jurisdiction of the Court., 3 4 In one of its most explicit
statements, the Court concluded that reservations are valid limitations of
the acceptance of compulsory jurisdiction and that they are not to be
separated from the rest of the declaration but that "declarations and
reservations are to be read as a whole."35 The Court stated:
Conditions or reservations thus do not by their terms derogate from a wider

acceptance already given. Rather, they operate to define the parameters of the state's
acceptance of the compulsory jurisdiction of the Court. There is thus no reason
to interpret them restrictively. All elements of a declaration under Article 36,
paragraph 2, of the Statute, which, read together, comprise the acceptance by the
declarant state of the Court's jurisdiction, are to be interpreted
36 as a unity, applying
the same legal principles of interpretation throughout.
Further, the Court pointed out that Spain's argument essentially required
that the reservation be interpreted "in accordance with the legality under
international law of the matters exempted from the jurisdiction of the
Court., 37 The Court found no support for such a rule of interpretation. On
the contrary, the Court observed that states may make a reservation
"precisely because they feel vulnerable about the legality of their position
or policy" or because they "lack confidence as to the compatibility of
certain of [...] [their] actions with international law.",38 The Court con-
cluded that "the lawfulness of the acts which the Canadian declaration
seeks to exclude from the jurisdiction of the Court has no relevance for
the interpretation of the terms of that reservation [...]"39 As President
Schwebel pointed out in his Separate Opinion,
the very purpose [...] of states in making reservations may be to debar the Court
from passing upon actions of the declarant state that may be or are legally ques-
tionable. If states by their reservations could withhold jurisdiction only where their
measures and actions are incontestably legal, and not withhold jurisdiction where
33. Fisheries Jurisdiction, supra note 13, para. 40, referring to Memorial of Spain, para. 39 (not
yet published).
35. Id., para. 47.
36. Id., para. 44.
37. Id., para. 54.
38. Id.
39. Id., para. 85.
their measures or actions are illegal 4or

0
arguably illegal, much of the reason for
making reservations would disappear.
The Court has thus quite strongly supported the broad freedom of states
to make reservations in their declarations under Article 36(2) and has
implicitly endorsed the view that reservations contribute to the viability
of the compulsory jurisdiction under Article 36(2). The permissibility of
reservations appears to weaken the Court's compulsory jurisdiction.
Reservations do detract from the scope of the jurisdiction conferred, some
reservations more than others.4 1 States, however, have not been inclined
to subscribe to compulsory adjudication that would apply to all types of
legal disputes. To offer them the option of adhering to, or abstaining from,
a provision excluding any reservations would in reality "condemn them
to abstention" and it would certainly be better to achieve an incomplete
result than no result at all.42
3.3. Does Article 36(3) of the Statute restrict the right of states to
make reservations in declarations under Article 36(2)?
Article 36(3) of the Statute provides that declarations under Article 36(2)
may be made "unconditionally or on condition of reciprocity on the part
of several or certain states, or for a certain time." In the absence of a
specific provision in the Statute allowing reservations, does Article 36(3)
not require that the only reservations to be included in declarations
accepting the compulsory jurisdiction must be reservations relating to
reciprocity? The provision clearly states that the alternative to the
"condition of reciprocity" is an unconditional acceptance that could only
be limited as to its duration.
This argument was made recently in the Case Concerning the Aerial
Incident of 10 August 1999. In that case, Pakistan argued that an Indian
reservation ratione personae was "in excess of the conditions permitted
under Article 36(3) of the Statute" under which declarations could be made
only on condition of reciprocity on the part of several or certain states, or
for a certain time.43 In the view of Pakistan, because India's reservation
did not fall within those two categories, it was inconsistent with the Statute
and could be applied by the Court only if the opposing party accepted
40. Fisheries Jurisdiction, supra note 13 (President Schwebel, Separate Opinion, para. 4) (not
yet published).
41. See L.B. Sohn, The Jurisdiction of the International Court of Justice, 35 ABA Journal
924, at 925 (1949).
42. 'Gallus', L'Acte General D'Arbitrage, 11 Revue de Droit International et de L6gislation
Compar6e 190, at 222 and 903 (1930). See also A. Yankov, Les reserves dans les
declarations d'acceptationde la juridiction obligatoirede la CourInternationalede Justice
et leur influence sur la competence de la Cour, LIL Annuaire de l'Universit6 de Sofia 454,
at 597 (1961).
43. Aerial Incident 1999, supra note 28, Memorial of Pakistan on Jurisdiction, para. D(1) (not
yet published).
it. 44The Court rejected this argument. It recalled that states are free to
accept the compulsory jurisdiction unconditionally or with reservations
and concluded that Article 36(3) "has never been regarded as laying down
in an exhaustive manner the conditions under which declarations might
be made. 4 5
Indeed, the provision of Article 36(3) does not relate to the scope of a
state's acceptance of the compulsory jurisdiction. It allows a state to
suspend the operation of its declaration under Article 36(2) and make it
contingent upon the entry into force of such declarations of certain other
states. "Unconditionally" thus means that the entry into force of a state's
declaration is not contingent upon other states making such declarations.46
The words "on condition of reciprocity on the part of several or certain
states" in Article 36(3), resulted from a proposal made by Brazil in 1920.
Brazil was reluctant to accept the compulsory jurisdiction unless at least
some of the 'Great Powers' did likewise. 47 The Brazilian declaration of
1921 illustrated the meaning of Article 36(3). It accepted compulsory
jurisdiction "as soon as it has likewise been recognized as such by two at
least of the Powers permanently represented on the Council of the League
of Nations., 48 Brazil has been the only state to refer to the condition of
Article 36(3). As Professor
49
Sohn put it, it was the only state that "applied
Article 36(3) literally.,
3.4. Reciprocity as a reservation
Should states explicitly refer to reciprocity in their declarations? States

do have the right to accept the compulsory jurisdiction unconditionally
and not attach any reservations.50 Article 36(2), however, clearly envis-
ages reciprocity ("in relation to any other state accepting the same
44. Aerial Incident 1999, supra note 28, para. 30.

45. Id., para. 37.
46. As Waldock noted, Art. 36(3) "is not really 'a condition of reciprocity' but rather a
condition that the declaration is not to be in force unless and until a certain number of states
or certain named states have accepted compulsory jurisdiction [...]." Waldock, supra note
6, at 255; see also Briggs, supra note 9, at 266.
47. See League of Nations, Records of the First Assembly, Committee I, at 553 (1920).
48. Hudson (PCIJ), supra note 7, at 684, and 688-690. The condition was met on 5 February
1930 when the declaration of the United Kingdom entered into force.
49. L.B. Sohn, Compulsory Jurisdictionof the World Court and the United States Position: The
Need to Improve the United States Declaration,in A.C. Arend (Ed.), The United States
and the Compulsory Jurisdiction of the International Court of Justice 3, at 11 (1987).
50. On that basis, several authors believe that a state can accept the compulsory jurisdiction of
the Court without the "condition of reciprocity." See G. Enriques, L'Acceptation sans
Reciprocite de la JuridictionObligatoire de la Cour Permanente de Justice Internationale,
13 Revue de Droit International et de Legislation Comparee 834, at 858 (1932); E. Hambro,
The Jurisdictionof the International Court of Justice, 76 RCADI 125, at 184-187 (1950);
J.H.W. Verzijl, The Jurisprudence of the World Court: A Case by Case Commentary, Vol.
II, at 266 (1966); J.H.W. Verzijl, Cour Internationalede Justice - Affaire relative c certains
emprunts Norvegiens, 4 Nederlands Tijdschrift voor Internationaal Recht 373, at 381 (1957),
cited in Briggs, supra note 9, at 238.
obligation") and reciprocity is thus embodied in Article 36(2) and is an

inherent part of it.51 By accepting the compulsory jurisdiction of the Court
'unconditionally' a state cannot eliminate the condition of reciprocity
found in Article 36(2). When an application is filed the Court must look
for a declaration by the respondent state "accepting the same obligation"
under Article 36(2). It is bound to apply reciprocity whether or not
reciprocity is mentioned in any of the declarations involved5 2 because it
must always seek the common ground of acceptance of its jurisdiction.
There are, for example, four declarations, all made under the PCIJ, that
contain no reservations.53 Two of them are still in force: the declaration
of Haiti of 1921, and the declaration of Nicaragua of 1929. The declara-
tion of Haiti states simply that "the jurisdiction of the Permanent Court
of International Justice" is recognized as compulsory.5 4 The declaration
of Nicaragua recognizes the compulsory jurisdiction of the Court
"unconditionally"." In spite of Nicaragua's unconditional acceptance of
the compulsory jurisdiction, however, the Court did apply reciprocity to
Nicaragua in the Nicaragua case. There is therefore no need to make a
specific reservation on reciprocity in a declaration under Article 36(2).
Quite recently, in the Case Concerning the Land and Maritime Boundary
between Cameroon and Nigeria, the Court explicitly confirmed this point.
It stated that the reservation "on the sole condition of reciprocity" in the
declaration of Nigeria ''5
"must
6
be understood as explanatory and not adding
any further condition.
Nevertheless, 151 declarations (79 under the PCIJ and 72 under the ICJ)
have contained explicit reservations of reciprocity. One hundred and forty
one declarations (66 under the PCIJ and 75 under the ICJ) have repeated
verbatim the words of the Statute, that compulsory jurisdiction is recog-
nized "in relation to any other state accepting the same obligation." Some
of them have included what Briggs referred to as the "double formula of
51. Hudson stated: "Every declaration made under paragraph 2 of Article 36 [...] has this
characteristic [of reciprocity] impressed upon it. It is not a reservation made by the declarant;
it is a limitation in the very nature of the declaration which operates under or is made 'in
conformity with' paragraph 2 of Article 36." See Hudson (PCIJ), supra note 7, at 465; see
also Briggs, supra note 9, at 237.
52. See Electricity Company, supra note 12, at 81; Norwegian Loans, supra note 29, at 23;
Right of Passage (Preliminary Objections), supra note 12, at 145. See also Briggs, supra
note 9, at 267; Hudson (PCIJ), supra note 7, at 465; Waldock, supra note 6, at 254-255;
C. Vulcan, La Clause Facultative, 18 Acta Scandinavica Juris Gentium 30, at 39-40
(1947-48); J. Stone, Legal Controls of International Conflict 129 (1954); S. Rosenne, The
International Court of Justice - An Essay in Political and Legal Theory 312 and 316 (1961).
53. Two declarations made by Lithuania in 1921 and in 1930 and the declarations of Haiti
(1921) and Nicaragua (1929). An interesting case is presented by the declaration of Bulgaria
of 1921 which recognizes the compulsory jurisdiction in relation to any other member state
which accepts the same obligation, but otherwise "unconditionally." See Hudson (PCIJ),
supra note 7, at 685.
54. Id., at 691.
55. Id., at 696.
56. Land and Maritime Boundary, supra note 17, at 300, para. 45.
reciprocity:, 57 they recognize the compulsory jurisdiction of the Court both

"in relation to any other state accepting the same obligation" and "on
condition of reciprocity." Apparently, states feel more comfortable
reaffirming in their declarations the principle of reciprocity embodied in
Article 36(2).
4. THE APPLICATION OF RECIPROCITY: SOME GENERAL COMMENTS
4.1. Application of reciprocity to reservations
Because under Article 36(2) the link between the unilateral declarations
is the principle of reciprocity, the Court has to determine whether the
parties to a dispute have accepted the same obligation with regard to the
Court's jurisdiction. But does "accepting the same obligation" mean, in
general, acceptance of the compulsory jurisdiction through a unilateral
declaration under Article 36(2)? Or must the declarations accepting the
compulsory jurisdiction be identical in scope or language? Neither could
be correct. Each state is entitled to determine itself the scope of its consent
to the compulsory jurisdiction. If the Court were to look for acceptance
of the compulsory jurisdiction in general, regardless of its scope, it would
extend its jurisdiction beyond the consent given by states. If, on the other
hand, the Court were to look for identical declarations, it would hardly
be able to exercise its compulsory jurisdiction at all: two unilateral dec-
larations would very rarely be identical in scope and would virtually never
contain identical language.
The task of the Court, when a dispute is presented to it, is to determine
the "meeting of the minds ' 58 required to establish the consent of both
parties to submit the dispute to the Court. This means that the Court must
look at the declarations of both states in order to determine whether the
matter in dispute submitted to it is covered by the scope of consent
expressed in both declarations. As Hudson put it, "[t]he Court's jurisdic-
tion applies only to the common ground covered by the applicant's and
respondent's declarations. ' ' 5 9 The general offer, the standing invitation
of one state, can be accepted by another state only "subject to the
limitations specified in the offer"60 of the first state and the limitations
specified in the acceptance, i.e. the unilateral declaration of the other state.
As the Court pointed out in the Anglo-Iranian Oil Company case, "juris-
diction is conferred on the Court only to the extent to which the two
Declarations coincide in conferring it."'61 In the Norwegian Loans case
57. Briggs, supra note 9, at 238.

58. Lauterpacht, supra note 11, at 345-346.
59. Hudson (PCIJ), supra note 7, at 465-466.
61. Anglo-Iranian Oil Co., supra note 15, at 103.
the Court explained that this was so because the basis of the Court's
jurisdiction is "the common will of the Parties. 6 2 It follows that if the
dispute is within the scope of the declaration of one state, but is outside
the scope of the declaration of the other state because of a reservation in
its declaration, the first state is entitled, despite the terms of its unilateral
declaration considered alone, to avail itself of the more restrictive accep-
tance of jurisdiction contained in the second state's declaration and to
challenge the jurisdiction of the Court on the basis of the second state's
reservation. Thus, a state that has accepted the Court's jurisdiction without
reservation has the opportunity to modify this acceptance in order to claim
the benefit of reservations contained in the adverse party's declaration.
In short, reciprocity allows a state to invoke a reservation contained in
the declaration of the other party to the dispute. Both the PCIJ and the
ICJ have consistently adhered to this reasoning. In Electricity 6
Company
of Sofia and Bulgaria the PCIJ stated "with crystal clarity": 1
The Bulgarian Government relies on the limitation [...] embodied in the Belgian
declaration [...], in order to dispute the jurisdiction of the Court. Although this
limitation does not appear in the Bulgarian Government's own declaration, it is
common ground that, in consequence of the condition of reciprocity laid down in
paragraph 2 of Article 36 of the Court's Statute and repeated in the Bulgarian
declaration, it is applicable as between the Parties.64
In what has become the classic statement of the International Court of

Justice on the application of reciprocity to reservations, the Court said in
the Interhandel case:
Reciprocity in the case of Declarations accepting the compulsory jurisdiction of

the Court enables a Party to invoke a reservation to that acceptance which it has
not expressed in its own Declaration but which the other Party has expressed in
its Declaration. [...]Reciprocity enables the state which has made the wider
acceptance of the jurisdiction of the Court to rely upon the reservations to 65the
acceptance laid down by the other Party. There the effect of reciprocity ends.
The principal legal consequence of the condition of reciprocity is that the

parties to a dispute before the Court are placed on a footing of equality.
The words "accepting the same obligation" require neither identically
phrased declarations nor equivalent reservations. Reciprocity simply
requires that the Court's jurisdiction in a particular case be based upon
and limited by the common ground on which the parties have accepted
that jurisdiction, i.e., where the two declarations overlap. The dispute
62. Norwegian Loans, supra note 29, at 23.

64. Electricity Company, supra note 12, at 81. For a similar finding, see also Phosphates in
Morocco, supra note 8, at 22.
65. Interhandel (Switzerland v. United States of America), Judgment of 21 March 1959, 1959
ICJ Rep. 6, at 23.
submitted to the Court must belong to a category of disputes that neither

party has excluded in its declaration. If the dispute is excluded in either
declaration, the Court has no jurisdiction.
4.2. Application of reciprocity to duration and procedures for

modification and termination of declarations
Article 36(3) allows declarations to be made "for a certain time." Practice

relating to duration and termination of declarations has varied significantly.
Some declarations are made for a certain period of time with or without
a provision for renewal or prolongation. Others are made without any
reference to duration or for an unlimited period. A number of declara-
tions are valid until a notice of termination is given. In some cases such
a notice takes effect immediately, in others termination requires an advance
notice of six or 12 months. Some states have explicitly reserved the right
to modify their declarations; other declarations are silent as to the proce-
dure of modification. The Court itself has said that a state is free to make
a declaration
unconditionally and without limit of time for its duration, or to [...] specify how
long the declaration itself
66
shall remain in force, or what notice (if any) will be
required to terminate it.
This variety of time limits, termination and modification procedures has

raised the question whether reciprocity applies to the duration, modifica-
tion, and termination of declarations. The Court has ruled that it does not.
What the Court looks into is whether the two parties have consented to
adjudicate the dispute brought before the Court at the time an application
is filed. How long before that date the declaration was made, how long
after that date the declaration would expire, how and when it could be
terminated, and how and when it could be modified is irrelevant.
Several cases have illustrated that reciprocity does not apply to the
duration of declarations. In the Nottebohm case, the application of
Liechtenstein was filed shortly before the declaration of the respondent,
Guatemala, was due to expire. Guatemala raised a preliminary objection
to the Court's jurisdiction on the basis that, after the expiry of its
declaration, the Court had no power to hear a case against it, i.e., that the
expiry of the declaration terminated the Court's power to administer
justice. 67 The Court rejected this argument. It stated that the purpose of
Article 36(2) and of the declarations made under it was "to regulate the
seizing of the Court." Therefore, once it had been
66. Nicaragua Jurisdiction, supra note 5, at 418, para. 59.

67. Nottebohm, supra note 4, at 114-116.
regularly seized, the Court must exercise its powers, as these are defined in the
Statute. After that, the expiry of the period fixed for one of the Declarations on
which the Application was founded is an event which is unrelated to the exercise
of the powers conferred on the Court by the Statute.68
The Court further stated that
an extrinsic fact such as the subsequent lapse of the Declaration, by reason of the
expiry of the period or by denunciation, cannot deprive the Court of the jurisdic-
tion already established.6 9
The finding of the Court is quite logical since otherwise an unwilling

respondent would be able to avoid adjudication of a dispute by terminating
its declaration after an application has been filed.
The Court expanded on this conclusion in the Nicaragua case. There,
the United States argued that Nicaragua had an implicit right to termi-
nate with immediate effect its declaration, which contained no reference
to duration. Therefore, the United States could also terminate its declara-
tion with immediate effect on the basis of reciprocity regardless of the
six-month notice requirement contained in the declaration. 0 The Court,
however, ruled that reciprocity did not apply to duration and procedures
of termination. It stated that
[t]he notion of reciprocity is concerned with the scope and substance of the com-
mitments entered into, including reservations,
7
and not with the formal conditions
of their creation, duration or extinction. 1
The Court has also ruled that reciprocity does not apply to the rights to
modify declarations and the various procedures for such modification.
Whether one state had the right to modify its declaration before the filing
of an application or could do so after the filing has also been found
irrelevant.7 2 In the words of the Court
68. Id., at 122. In several previous cases there was a similar situation. See Losinger & Co.
(Switzerland v. Yugoslavia), Preliminary Objection, Order, 1936 PCIJ (Ser. A/B) No. 67
[hereinafter: Losinger]. In Phosphates in Morocco, the declaration of the respondents expired
shortly after the application was filed yet no objection to the Court's jurisdiction was raised
on this score; see Phosphates in Morocco, supra note 8. In the Anglo-Iranian Oil Co. Case,
Iran terminated its declaration (terminable on notice) after the United Kingdom filed its
application but did not rely on that as a preliminary objection; see Anglo-Iranian Oil Co.,
supra note 15. In Right of Passage (Preliminary Objections), India terminated its declara-
tion after an application was filed against it but the Court did not find this relevant to its
jurisdiction and India itself did not invoke it as an objection; see Right of Passage
(Preliminary Objections), supra note 12.
69. Nottebohm, supra note 4, at 123.
70. Nicaragua Jurisdiction, supra note 5, at 416-417, para. 55.
71. Id., at 419, para. 62.
72. Right of Passage (Preliminary Objections), supra note 12, at 143.
a determination of the existence of the "same obligation" requires the presence of

two parties to a case, and a defined issue between them, which conditions can
only be satisfied when proceedings have been instituted. [...] [T]he possibility that,
prior to that moment, the one enjoyed a wider right7 to modify its obligation than
did the other, is without incidence on the question. 1
The Court, however, has taken a strong position that a declaration must
be terminated or modified according to its terms. It rejected the validity
of a modification (or partial termination) of a declaration that did not fall
within the terms of the declaration itself in the Nicaraguacase. Three days
before Nicaragua filed its claim, the United States deposited with the
Secretary-General a notification stating that the US declaration, terminable
on six months advance notice, "shall not apply to disputes with any Central
American state or arising out of or related to events in Central America"
and that "notwithstanding the terms of the [...] declaration, this proviso
shall take effect immediately., 74 The United States argued that, even
though its declaration did not expressly reserve a right of modification,
there was an "inherent, extra-statutory right to modify declarations in any
manner not inconsistent with the Statute at any time until the date of filing
of an Application. '75 The Court disagreed and refused to allow the United
States to deviate from the explicit six-month notice requirement for ter-
minating its own declaration.76
States have learned the lessons of the past attempts to denounce and
modify declarations, as well as of the Court's pronouncements that juris-
diction is established at the time an application is filed. The recent trend
is in favor of declarations made valid until notice of termination is given
(seven of the 12 new declarations made during the last decade). In addition,
a number of states (eight during the last ten years) have included in their
declarations a reservation allowing them to supplement, modify, or
withdraw the declaration or the reservations contained in it.
4.3. The 'sitting duck' problem
Declarations under Article 36(2) include an element of unpredictability.

They are made erga omnes: once the consent is given, every declarant state
must be deemed to take into account the possibility that, under the Statute, it may
at any time find itself subjected to the obligation of [Article 36(2)] [...] in relation
to [...] [another state], as a result of the deposit by that [state of a declaration under
Article 36(2)].
73. Nicaragua Jurisdiction, supra note 5, at 420-421, para. 64.

74. Id., at 398, para. 13.
75. Id., at 415-416, para. 53.
76. Id., at 418-419, paras. 59-62 and at 421, para. 65.
77. See Right of Passage (Preliminary Objections), supra note 12, at 146.
The risk is aggravated by the fact that reciprocity does not require an equal
right to terminate or modify declarations or equal duration of declarations.
Moreover, there is no requirement in Article 36(2) that a period of time
must elapse between the deposit of a declaration and the filing of an
application. A state may deposit a declaration, immediately file an appli-
cation against another state that has accepted the compulsory jurisdiction,
and then soon afterwards terminate its declaration. This has been referred
to as the 'sitting duck' or 'hit-and-run' problem.78
Respondents have often complained that they have been the victims of
'hit-and-run' tactics and have asked the Court to deny jurisdiction on the
basis of reciprocity. The Court has found that reciprocity does not preclude
such tactics. It has ruled that "the consensual bond," which is the basis of
the compulsory jurisdiction, "comes into being" on the date of the making
of the declaration and that it is by the deposit of the declaration with the
Secretary-General that a state becomes a party to the system of Article
36(2). Consequently, a declarant state
must expect that an Application may be filed against it before the Court by a new
declarant state on the same day on which that state deposits with the Secretary-
General its Declaration of Acceptance.
The 'sitting duck' problem was the central issue in the recent Case
Concerning the Land and Maritime Boundary between Cameroon and
Nigeria. Cameroon had deposited its declaration on 3 March 1994, and
filed the application on 29 March 1994. Nigeria contended that it did not
know on the date of the filing of the application that Cameron had
deposited a declaration. It claimed that Cameroon had acted prematurely,
accepting "surreptitiously" the jurisdiction of the Court and instituting
the proceedings against Nigeria with "inappropriate haste," without threat,
suggestion, or warning, and that Nigeria was subject to a "trial by
ambush."80 Nigeria further asserted that, because it knew nothing of
Cameroon's participation in the system established by Article 36(2), the
consensual bond between Cameroon and Nigeria necessary to establish the
Court's jurisdiction did not exist at the time of the application. Finally,
Nigeria argued that the Court lacked jurisdiction on the basis of reciprocity
78. See Briggs, supra note 9, at 278; A. D'Amato, Modifying US Acceptance of the Compulsory
Jurisdiction of the World Court, 79 AJIL 385, at 389 (1985); J.G. Merrills, The Optional
Clause Today, 50 BYBIL 87, at 101 (1979); F. Morrison, Potential Revisions to the
Acceptance of Compulsory Jurisdictionof the InternationalCourt of Justice by the United
States ofAmerica, in A.C. Arend (Ed.), The United States and the Compulsory Jurisdiction
of the International Court of Justice 29, at 57-59 (1986).
79. Right of Passage (Preliminary Objections), supra note 12, at 146.
80. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections of the Federal Republic of Nigeria, Vol. I, December 1995, paras.
1.5, 1.8, 1.9 and 1.24 [hereinafter: Nigerian Objections]. See also Land and Maritime
Boundary, supra note 17, at 290, para. 22.
since on the date Cameroon filed its application Nigeria had no knowl-
edge of Cameroon's declaration and could not, itself, have brought a
dispute with Cameroon before the Court.8 1
The Court disagreed with Nigeria's arguments. It confirmed its ruling
that a state becomes a party to the system of Article 36(2) by the deposit
of the declaration with the Secretary-General and that it may, on that very
day, file an application against another state that has already accepted the
compulsory jurisdiction.8 2 The Court stated further:
Any state party to the Statute, in adhering to the jurisdiction of the Court in accor-
dance with Article 36, paragraph 2, accepts jurisdiction in its relations with states
previously having adhered to that clause. At the same time, it makes a standing
offer to the other states party to the Statute which have not yet deposited a decla-
ration of acceptance. The day one of those states accepts that offer by depositing
in its turn its declaration of acceptance,8 3the consensual bond is established and no
further condition needs to be fulfilled.
The Court also noted that no time period was required by Article 36(2)
for the establishment of a consensual bond following the deposit of a
declaration and that there was no specific obligation in international law
for states to inform other states that they intend to subscribe or have
subscribed to Article 36(2).84
Finally, the Court rejected Nigeria's argument that reciprocity applied
because Nigeria did not know of Cameroon's declaration at the time of
Cameroon's application and could not have itself filed an application
against Cameroon. The Court referred to its conclusion, made on numerous
occasions, that its task was to determine, on the basis of reciprocity, the
extent to which the two declarations coincided and that reciprocity allowed
a state no more than to rely on a reservation in the declaration of the other
party.85 The Court reiterated the finding in Nicaraguathat reciprocity is
not concerned with "the formal conditions of [...] creation, duration or
extinction" of substantive commitments and that the Court is required
simply to ascertain whether, at the time of the filing of the application,
the two states have accepted the same obligation in relation to the
subject-matter of the dispute.8 6 The Court thus confirmed its earlier
findings that once a state makes a declaration under Article 36(2), it
essentially becomes a 'sitting duck' since it extends a standing offer to
81. Nigerian Objections, supra note 80, paras. 1.17 and 1.23. See also Land and Maritime
Boundary, supra note 17, at 298, para. 41.
82. Land and Maritime Boundary, supra note 17, at 291, para. 25 and at 297, para. 39,
referring to Right of Passage (Preliminary Objections), supra note 12, at 146.
84. Id., at 295, para. 34, at 296, para. 35, and at 297, para. 39.
85. Id., at 298-299, para. 43.
86. Id., at 299, para. 43, referring to Nicaragua Jurisdiction, supra note 5, at 419, para. 62 and
at 420-421, para. 64.
all other states accepting the same obligation to adjudicate disputes before
the Court.
To protect themselves against the 'hit-and-run' tactics, some states have
included in their declarations requirements that the declaration of the other
party should be deposited no less than twelve months prior to the filing
of an application or that the other party should not have accepted the
compulsory jurisdiction exclusively for the purposes of the dispute. Six
declarations in the last ten years have included such a reservation. The
reservation was invoked in the recent cases filed by Yugoslavia against
the NATO member states. Two of the respondents, Spain and the United
Kingdom, had in their declarations a reservation excluding "disputes in
regard to which the other party [...] [has] accepted the compulsory juris-
diction [...] less than 12 months prior to the filing of the application." 7
The two states argued that the Court lacked jurisdiction on the basis of
the reservation because Yugoslavia deposited its declaration three days
before filing the application. Yugoslavia did not object to these arguments
and the Court found that it manifestly lacked jurisdiction. 8 Clearly, Nigeria
would have been saved from the 'ambush' in the Case Concerning the
Land and Maritime Boundary between Cameroon and Nigeria if its
declaration contained a reservation protecting it against the 'sitting duck'
problem similar to the reservations of Spain and the United Kingdom. The
Court itself observed that "[i]n order to protect itself against the filing of
surprise applications [...] Nigeria could have inserted in its Declaration
an analogous reservation" to the one in the United Kingdom declaration. 89
On 30 April 1998, Nigeria did, in fact, submit a new declaration under
Article 36(2) that included such a reservation. The reservation excludes
disputes where the other party has accepted the compulsory jurisdiction
less than 12 months prior to the filing of an application and disputes where
the other party has accepted the compulsory jurisdiction only for the
purposes of the dispute.
87. Case Concerning Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures,
Order, 1999 ICJ Rep., para. 22 (not yet published) [hereinafter: Use of Force (Spain)]. The
United Kingdom reservation, while formulated somewhat differently, has the same meaning
and effect. Case Concerning Legality of Use of Force (Yugoslavia v. United Kingdom),
Provisional Measures, Order, 1999 ICJ Rep., para. 22 (not yet published) [hereinafter: Use
of Force (United Kingdom)].
88. Use of Force (Spain), supra note 87, paras. 23-25; Use of Force (United Kingdom), supra
note 87, paras. 23-25.
5. RESERVATIONS RATIONE TEMPORIS AND THE APPLICATION OF

RECIPROCITY
Declarations under Article 36(2) cover all disputes submitted to the Court
after the effective date of the declaration. 90 States that want to exclude
disputes already existing at the time they make their declarations have
formulated explicit reservations. Some reservations exclude disputes that
arose before a certain date (the exclusion date), which often is the date
on which the declaration entered into force. 91 Others contain a further
limitation that the situations or facts giving rise to a dispute must also be
subsequent to the exclusion date. Such double form of a reservation ratione
temporis was first made by Belgium in its 1925 declaration. 92 The 'Belgian
formula' soon became popular. Under the PCIJ, it was included in 33
declarations while only ten declarations excluded disputes prior to a certain
date without reference to situations or facts. The same trend continued
under the ICJ: 43 declarations have been made containing the 'Belgian
formula' and only 13 excluding disputes without reference to facts or
situations. Reservations ratione temporis in declarations made a long time
ago have lost much of their effectiveness, 93 but the trend of including such
reservations in declarations under Article 36(2) has continued. During the
last decade, two states made declarations with a reservation excluding past
disputes and eight states used the 'Belgian formula' excluding past disputes
and past facts and situations giving rise to a dispute. As with all other
reservations, a reservation ratione temporis in the declaration of one of
the parties can be invoked by the other party to the dispute. In Electricity
Company of Sofia and Bulgaria, the Court applied this reasoning to the
'Belgian formula.' Bulgaria, as a respondent, invoked the reservation
ratione temporis contained in the Belgian declaration. The Court found
that Bulgaria was entitled to rely on the Belgian reservation, even though
90. In the Mavrommatis case the Court found that "in cases of doubt, jurisdiction based on an
international agreement embraces all disputes referred to it after its establishment" and noted
that "the correctness of the rule enunciated above" is obvious since "reservations made
in many arbitration treaties regarding disputes arising out of events previous to the con-
clusion of the treaty seem to prove the necessity for an explicit limitation of jurisdiction."
See Mavrommatis Palestine Concessions (Greece v. United Kingdom), Jurisdiction,
Judgment, 1924 PCIJ (Ser. A) No. 2, at 35 [hereinafter: Mavrommatis].
91. The exclusion date can be determined in different ways: the date of signature, ratification,
entry into force or deposit of a declaration, the date of a previous declaration, a fixed date,
a date or a period relating to certain events, etc.
92. The reservation, known as the 'Belgian formula,' accepts the compulsory jurisdiction with
respect to "any disputes arising after the ratification of the present declaration with regard
to situations or facts subsequent to this ratification." See Hudson (PCIJ), supra note 7, at
684.
93. For example, the Netherlands can be sued over disputes that arose after 1921.
the reservation did not appear in Bulgaria's own declaration, 94 and to

exclude from the jurisdiction of the Court disputes, facts or situations that
arose prior to the exclusion date of the Belgian declaration.
In order to apply reciprocity to reservations ratione temporis, the Court
must determine the critical date of a dispute. If that date precedes the
exclusion date, the Court lacks jurisdiction. While it is rather complicated
to establish the date when a specific dispute arose, 95 establishing the
existence, on or before a specific date, of the facts or situations that gave
rise to the dispute is much more complex. First, the Court must establish
which facts or situations gave rise to the dispute. The Court has done so
in the context of the specific case, seeking to establish 'the essential facts,'
i.e., "the facts which really gave rise to the dispute [...],,.96 The Court has
observed that "[a] situation or fact in regard to which a dispute is said to
have arisen must be the real cause of the dispute,"' 97 and has drawn a
distinction between facts or situations which constitute the source of a
disputed right and facts or situations which are the source of the dispute
itself. 98 This reasoning of the Court has restricted the scope of the 'Belgian
formula' by reducing its application to the facts and situations that are
the source of the dispute. In addition, the Court has found that it may not
always be possible to establish whether certain facts or situations gave rise
to the dispute before considering the merits of the case and has joined
preliminary objections based on a reservation ratione temporis of the
Belgian type to the merits. 99
Second, the Court must establish whether the facts or situations that
gave rise to the dispute are subsequent to the exclusion date. Significant
difficulties arise where those facts or situations emerged before the
exclusion date but continue to exist after that date. The Court has found
that facts subsequent to the exclusion date are not sufficient to establish
jurisdiction if they merely confirmed or developed prior situations or facts
94. Electricity Company, supra note 12, at 81. As Judge van Eysinga observed, "[b]y the
operation of reciprocity [...] the two conditions ratione temporis made in the Belgian
declaration [...]also hold good for Bulgaria." See Electricity Company (Judge van Eysinga,
Dissenting Opinion), supra note 12, at 109.
95. The starting point of the Court's analysis has been its definition of a legal dispute. See
Mavrommatis, supra note 90, at 11; Case Concerning Certain German Interests in Polish
Upper Silesia (Germany v. Poland), Jurisdiction, Judgment, 1925 PCIJ (Ser. A) No. 6, at
14; Right of Passage (Preliminary Objections), supra note 12, at 148-149; South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of
21 December 1962, 1962 ICJ Rep. 319, at 328.
97. Electricity Company, supra note 12, at 82.
98. In the Right of Passage case, the court concluded that even though the right of passage of
Portugal existed before the exclusion date, the dispute did not arise until India placed
obstacles in the way of exercise of this right by Portugal. See Right of Passage over Indian
Territory (Portugal v. India), Merits, Judgment of 1 April 1960, 1960 ICJ Rep. 6 at 33-36
[hereinafter: Right of Passage (Merits)].
99. See Right of Passage (Preliminary Objections), supra note 12, at 152.
which were the source of the dispute.1 00 Recently, the Court confirmed this
finding in several of the cases filed by Yugoslavia against the NATO
member states concerning the NATO bombing campaign in the spring of
1999. In six of the ten cases, Yugoslavia sought to establish the Court's
jurisdiction, inter alia, under Article 36(2),101 and in four of the six cases
the reservation ratione temporis in the declaration of Yugoslavia was
invoked by the respondents. 102 Yugoslavia's reservation excluded disputes
that arose prior to the date of the declaration, 25 April 1999, and disputes
with regard to facts and situations prior to that date. Yugoslavia, however,
contended that each of the bombing attacks carried out by the NATO
member states on 28 April, 1 May, 7 May and 8 May 1999, i.e., after the
date of the declaration, were events that gave rise to a separate dispute
"the terms of which depend in each case on the specific features of the
attack." Therefore, in the view of Yugoslavia, since these events, which
were alleged to be flagrant violations of international law, constituted
"instantaneous wrongful acts," "a number of separate disputes" existed,
which had arisen after the date of the declaration. 103 The Court declined
to establish even prima facie jurisdiction on this basis. It noted that the
application of Yugoslavia was directed "in essence" against "the bombing
of the territory" of Yugoslavia which had begun before 25 April 1999,
had continued after that date and the fact that "the dispute concerning them

101. Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures,
Order, 1999 ICJ Rep., para. 2 (not yet published) [hereinafter: Use of Force (Belgium)];
Case Concerning Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures,
Order, 1999 ICJ Rep., para. 2 (not yet published) [hereinafter: Use of Force (Canada)];
Case Concerning Legality of Use of Force (Yugoslavia v. Netherlands), Provisional
Measures, Order, 1999 ICJ Rep., para. 2 (not yet published) [hereinafter: Use of Force
(Netherlands)]; Case Concerning Legality of Use of Force (Yugoslavia v. Portugal),
Provisional Measures, Order, 1999 ICJ Rep., para. 2 (not yet published) [hereinafter: Use
of Force (Portugal)]; Use of Force (Spain), supra note 87, para. 2; Use of Force (United
Kingdom), supra note 87, para. 2.
102. Use of Force (Belgium), supra note 101; Use of Force (Canada), supra note 101; Use of
Force (Netherlands), supra note 101; Use of Force (Portugal), supra note 101.
103. Use of Force (Belgium), supra note 101, para. 25; Use of Force (Canada), supra note
101, para. 24; Use of Force (Netherlands), supra note 101, para. 25; Use of Force
(Portugal), supra note 101, para. 24. See also Use of Force (Yugoslavia v. Belgium, Canada,
France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom, and United States),
Statement by Mr. Corten, Transcript of Public Sitting, 12 May 1999, Doc. CR 99/25. Mr.
Corten pointed out that, with respect to every attack, there were disagreements of law
concerning the protection of the civilian population, the use of prohibited weapons, the
principle of proportionality, the prohibition of certain damages to the environment and dis-
agreements of fact concerning the intentional nature of the attack against the civilian pop-
ulation and the extent of the inflicted harm. Yugoslavia did not argue that the same dispute
that had arisen before 25 April 1999, continued after that date because it probably did not
want to subject to the Court's jurisdiction other possible disputes with those states that
had arisen prior to 25 April 1999, and continued to exist. See Use of Force (Yugoslavia
v. Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United
Kingdom, and United States) (Judge Higgins, Separate Opinion), para. 7 (not yet
published).
has persisted since that date" did not "alter the date on which the dispute
arose." The Court concluded that "each individual air attack could not have
given rise to a separate subsequent dispute" and therefore no "new
disputes, distinct from the initial one, have arisen [...] since 25 April
1999."104
6. RESERVATIONS RATIONE MATERIAE AND THE APPLICATION OF

RECIPROCITY
6.1. Reservations excluding disputes falling under the domestic

jurisdiction of a state as determined by international law
The reservation excluding from the jurisdiction of the Court "disputes with
regard to questions which by international law fall exclusively within the
jurisdiction of the [declarant state]" was first made in the United Kingdom
declaration of 19 September 1929. 105 It was followed, under the PCIJ, by
21 other declarations. Under the ICJ, 32 declarations included such a
reservation. In addition, four states have made reservations excluding
matters essentially within their domestic jurisdiction without specifying
that these matters should be determined by international law. The reser-
vation remains popular: it has been included in six declarations made
during the last ten years. Many authors have viewed this reservation as
unnecessary since it repeats the well established principle of international
law provided in Article 2(7) of the Charter prohibiting intervention in
matters which are essentially within the domestic jurisdiction of a state. 106
The Court's practice supports this view. First, the Court has interpreted
the phrase "exclusively within the domestic jurisdiction" restrictively,
pointing out that a state cannot evade an international obligation on the
grounds that the matters in dispute are within its domestic jurisdiction. 107
104. Use of Force (Belgium), supra note 101, paras. 27-29; Use of Force (Canada), supra note
101, paras. 26-28; Use of Force (Netherlands), supranote 101, paras. 27-29; Use of Force
(Portugal), supra note 101, paras. 26-28.
105. Hudson (PCIJ), supra note 7, at 689-690.
106. As Hudson pointed out, "[i]t is difficult to see what is accomplished by this exclusion; if
a dispute relates to questions which fall within exclusively national jurisdiction, it does
not fall within one of the classes enumerated in paragraph 2 of Article 36." Hudson (PCIJ),
supra note 7, at 471. See also H. Lauterpacht (Ed.), L.F. Oppenheim, International Law,
Vol. II, at 62, para. 25 (1952); Briggs, supra note 9, at 311; Sohn, supra note 41, at 925;
Verzijl, supra note 50, at 267; Hambro, supra note 50, at 187-188; Merrills, supra note
78, at 112-113.
107. See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the
Danzig Territory, Advisory Opinion, 1932 PCIJ (Ser. A/B) No. 44, at 24. See also
Nationality Decrees Issued in Tunis and Morocco (French Zone) on 8 November 1921,
Advisory Opinion, 1923 PCIJ (Ser. B) No. 4, at 24; Right of Passage (Merits), supra note
98, at 32-33.
Second, the Court has consistently ruled that the domestic jurisdiction
reservation does not possess the nature of a preliminary objection and is
not a bar to the Court's jurisdiction. When the reservation has been
invoked, the Court has joined it to the merits.108
Obviously, if there is no applicable international law, the Court would
decline jurisdiction regardless of whether there is a reservation on domestic
jurisdiction since the dispute would be outside the scope of Article 36(2).
If there are applicable rules of international law with respect to the subject
matter of the dispute, the Court would apply them and the matter would
thus cease to be "exclusively" or "essentially" within a state's domestic
jurisdiction for the purposes of the dispute. As Waldock put it, the test of
domestic jurisdiction applied by the Court is "whether the matters 10 9
in
dispute [...] raised legal questions of an international character."
6.2. Reservations excluding disputes falling under the domestic

jurisdiction of a state as determined by the state itself
The domestic jurisdiction reservation becomes substantially different when

it provides that the decision as to which disputes fall within the domestic
jurisdiction of a state will be made by the state itself. Such a reservation
was unknown under the PCIJ. It appeared for the first time in the United
States declaration of 26 August 1946. The reservation excluded "disputes
with regard to matters which are essentially within the domestic jurisdic-
tion of the United States of America as determined by the United States
of America." 110 The United States example was later followed by nine other
states. 11 There is abundant literature on the drafting history of this
108. Losinger, supra note 68, at 18 and 25; Anglo-Iranian Oil Co., supra note 15, at 98-99;
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Protection, Order of 5 July 1951,
1951 ICJ Rep. 89, at 92-93; Right of Passage (Preliminary Objections), supra note 12, at
130-131, 133-134, and 149-150.
109. C.H.M. Waldock, The Plea of Domestic JurisdictionBefore InternationalLegal Tribunals,
31 BYBIL 96, at 109.
110. ICJ Yearbook 1946-1947, at 214; 61 Stat. 1218, TIAS No. 1598, 4 Bevans 140, 1 UNTS
9.
111. Liberia (1952), Malawi (1966), Mexico (1947), Philippines (1972), Sudan (1958), as well
as the terminated declarations of France (1949), India (1956), Pakistan (1948 and 1957),
and South Africa (1955).
reservation and on its substance. 112 Many authors have criticized the
reservation on the grounds that it is inconsistent with Article 36(6) of the
Statute which states that the Court shall determine its own jurisdiction.113
The most important practical flaw of this reservation is that it does not
necessarily place the declarant state in an advantageous position. It can
be invoked by the other party on the basis of reciprocity thereby frustrating
the efforts of the declarant state to bring a dispute before the Court. The
final result is that the compulsory jurisdiction of the Court is significantly
restricted. In the very first case in which the Court had to deal with the
domestic jurisdiction reservation initiated by the United States, the case
of CertainNorwegian Loans, the reservation prevented the declarant state,
France, itself from bringing a case before the Court. In that case Norway,
as a respondent, raised a preliminary objection invoking the self-judging
domestic jurisdiction reservation in the French declaration. The Court 114
agreed with Norway and decided that it lacked jurisdiction in the case.
The Court has never explicitly ruled on the validity of the self-judging
domestic jurisdiction reservation but it gave effect to the reservation in
112. See Compulsory Jurisdiction, International Court of Justice, Hearings before a

Subcommittee of the Committee on Foreign Relations, US Senate, 79th Congress, 2nd
Session, 11, 12 and 15 July 1946; International Court of Justice, Report of the Committee
on Foreign Relations, US Senate, No. 1835, 79th Congress, 2nd Session, 25 July 1946;
CongressionalRecord, 79th Congress, 2nd Session, Vol. 92, at 10553-557, 10613-632,
10683-709 (31 July and 1, 2 August 1946); M. Dubisson, La Cour internationale de justice
187-189 (1964); L.F.E. Goldie, The Connally Reservation: A Shield for An Adversary, 9
UCLA Law Review 277 (1962); D.W. Greig, International Law 651-157 (1976); K.
Holloway, Modern Trends in Treaty Law 654-664, 683-697 (1967); M.O. Hudson, The
Twenty-Fifth Year of the InternationalCourt of Justice, 41 AJIL 1, 11-12 (1947); M.O.
Hudson, The World Court: America's DeclarationAccepting Jurisdiction,32 ABA Journal
832 (1946); R.Y. Jennings, Recent Cases in "Automatic" Reservations to the Optional
Clause, 7 ICLQ 349 (1958); B. Maus, Les r6serves dans les d6clarations d'acceptation de
la jurisdiction obligatoire de la Cour Internationale de Justice 149-163 (1959); Merrills,
supra note 78, at 113-115; L. Preuss, Questions Resulting from the Connally Amendment,
32 ABA Journal 660 (1946); Preuss, The InternationalCourt of Justice, the Senate and
Matters of Domestic Jurisdiction,40 AJIL 720 (1946); W.P. Rogers, The United States'
"Automatic" Reservation to Optional Clause Jurisdiction of the ICJ, 7 ICLQ 758 (1958);
S. Rosenne, The Law and Practice of the International Court, Vol. I, at 395-399 (1965);
I. Shihata, The Power of the International Court to Determine its Own Jurisdiction (1965);
Sohn, supra note 41; L.B. Sohn, International Tribunals: Past, Present and Future, 46
ABA Journal 23, at 25-26 (1960); Waldock, supra note 109; F.O. Wilcox, The United
States Accepts Compulsory Jurisdiction,40 AJIL 699 (1946); ABA, Section of Int'l and
Comp. Law, Report on the Self-JudgingAspect of the United States Domestic Jurisdiction
Reservation with Respect to the InternationalCourt of Justice (1959).
113. Briggs qualified the reservation as a "bold attempt to substitute the declarant state for the
Court in the determination of aspects of the Court's jurisdiction [...] in the face of [...]
Article 36(6)." Briggs, supra note 9, at 328. Waldock called the reservation an
"unblushingly subjective form of reservation" and an "escape clause;" Waldock, supra note
6, at 271. See also Morrison, supra note 78, at 53. During the debate in the United States
Senate some senators also opposed the reservation on the grounds that it was "a clear
violation" of Art. 36(6) of the Court's Statute. Congressional Record, 79th Congress, 2nd
Session, vol. 92, at 10630-631 and 10683-687 (31 July and 1, 2 August 1946).
114. See Norwegian Loans, supra note 29, at 21-24 and 27.
the Norwegian Loans case where both parties considered it valid and
enforceable. Several judges, however, strongly disagreed with this part of
the decision and made their views very clear, specifically rejecting the
reservation as inconsistent with the Statute and, therefore, invalid. 115
When, for the first and the last time, the United States invoked the
reservation as a respondent in the Interhandel case, the reservation did not
offer the United States the protection the United States thought it was
entitled to. The United States sought to prevent the indication of interim
measures of protection. It made a determination that the matter in dispute
was "a matter essentially within its domestic jurisdiction" and declined
"to submit the matter [...] to the jurisdiction of the Court."' 116 The United
States insisted that the determination was "not subject to review or
approval by any tribunal" and removed "definitively" the matter "from the
jurisdiction of the Court. 117 The Court, however, did find prima facie
jurisdiction to indicate provisional measures because both parties had
"accepted the compulsory jurisdiction of the Court on the basis of Article
36, paragraph 2, of the Statute." 1 8 This finding prejudiced the automatic
self-judging character of the reservation. It denied the United States the
benefit of the reservation, at least at the interim measures stage.
The damage that the self-judging domestic jurisdiction reservation can
inflict on the declarant state itself was best illustrated in the Aerial Incident
of July 1955 case. Bulgaria, invoking the self-judging reservation in the
United States declaration on the basis of reciprocity, claimed that the
dispute related to the defense of its territory, the security of its airspace
and the disposition of its aircraft defense and, therefore, fell under its
domestic jurisdiction.1 9 The United States argued that Bulgaria "cannot
determine that the United States' claim [...] is essentially within Bulgaria's
domestic jurisdiction, since any such determination would fly in the face
of actuality and would ignore the international character" of the claim. The
United States also insisted that Bulgaria "had failed to make a showing
of any valid considerations" which would form the basis of a conclusion
115. Judge Lauterpacht states in his Separate Opinion that by virtue of the reservation, "the
function of the Court is confined to registering the decision made by the defendant
Government and not subject to review by the Court." See Norwegian Loans (Judge
Lauterpach, Separate Opinion), supra note 29, at 34 and 44-46. See also Norwegian Loans
(Judge Guerrero, Separate Opinion), supra note 29, at 68-69. For a more detailed
discussion of the objections to the validity of the self-judging domestic jurisdiction
reservation, see Alexandrov, supra note 6, at 76-91.
116. Interhandel Case (Switzerland v. United States), Interim Protection, Order of 24 October
1957, 1957 ICJ Rep. 105, at 107 [hereinafter: Interhandel (Interim Protection)].
117. Interhandel Case (Switzerland v. United States), 1959 ICJ Pleadings, at 452-453
[hereinafter: Interhandel (Pleadings)].
118. Interhandel (Interim Protection), supra note 116, at 110.
119. Case Concerning Aerial Incident of 27 July 1955 (United States v. Bulgaria), Preliminary
Objections of Bulgaria, 3 October 1959, 1959 ICJ Pleadings 265, at 271 [hereinafter: Aerial
Incident 1955 (Pleadings)].
that its claim "lies 'essentially' within [its] domestic jurisdiction."' 120 The
United States pointed out that the reservation did not authorize either the
United States or any other state on the basis of reciprocity "to make an
arbitrary determination that a particular matter is domestic."' 121 It argued
that the dispute was impregnated with "international character" and
concluded that "Bulgaria is not entitled [...] to determine that [...] [the
matters of the dispute] are 'essentially within [its] domestic jurisdic-
tion. '"122 Essentially, the United States argued that the reservation was
neither automatic nor self-judging and was ready to submit the reserva-
tion to the judgment of the Court. This contradicted the position taken by
the United States in the Interhandel case. The contradiction was later
eliminated when the United States withdrew this argument by stating:
The necessary premise of the argument was that the Court must have jurisdiction
for the limited purpose of deciding whether a determination under [the reservation]
is arbitrary and without foundation. On the basis of further study and considera-
tion of the history and background of [this] reservation and the position hereto-
fore taken before the Court, it has been concluded that the premise of the argument
is not valid and that the argument must therefore be withdrawn. A determination
under [this] reservation that a matter is essentially domestic constitutes an absolute
bar to jurisdiction irrespective of the propriety or arbitrariness of the determina-
tion.1"'
The United States further acknowledged that "under the rule of reciprocity
[... ] Bulgaria is accorded the same rights and powers" with respect to the
reservation "as the125
United States"' 124 and requested the discontinuation of
the proceedings.
The United States has consistently refused to invoke the self-judging
clause in bad faith. In Nicaragua,for example, it affirmatively determined
not to assert the reservation. 126 However, the fact that the United States
had taken such a position did not prevent other states from invoking the
reservation against it. The United States itself explicitly stated that other
states were entitled to do so. As a result, the United States failed to bring
other states before the ICJ while other states successfully brought cases
against the United States. As the Legal Adviser of the State Department
pointed out before the Senate Foreign Relations Committee,
120. Aerial Incident 1955 (Pleadings), supra note 119, at 308.

121. Id., at 323.
122. Id., at 324-325.
123. Letter of 13 May 1960, of the Agent of the United States to the Registrar of the Court,
Aerial Incident 1955 (Pleadings), supra note 119, at 677.
124. Id.
125. See Case Concerning Aerial Incident of 27 July 1955 (United States v. Bulgaria), Order,
1960 ICJ Rep. 146, at 146-148.
of America), Counter-Memorial of the United States (17 August 1984), at 9, note 1. See
also Nicaragua Jurisdiction, supra note 5, at 422, para. 67.
we have never been able successfully to bring another state before the Court on
the basis of our acceptance of the compulsory jurisdiction. On the other hand, we
have been sued under it three times [...].127
Thus, while the efficacy of the protection offered to the declarant states
by the self-judging domestic jurisdiction reservation is yet to be proven
in practice, it has prevented declarant states themselves from bringing
disputes before the Court. This problem, along with the controversial legal
nature of the reservation, has contributed to its decline in popularity. Five
of the ten states that had initially included the reservation in their
declarations later either abandoned the reservation or withdrew their
declarations. Of the other five states whose declarations still contain the
reservation, the most recent declaration, that of the Philippines, was made
in 1972. States have sought other ways to exclude disputes they would not
want do adjudicate, mostly by specifying the categories of such disputes
in reservations ratione materiae.
6.3. Reservations excluding disputes in regard to which the parties

agree to have recourse to another method of settlement
This reservation is the most popular reservation ratione materiae. It was

made in 49 declarations under the PCIJ and in 66 declarations under the
ICJ, including 11 declarations made since 1990.128 In the few cases where
the reservation was invoked, the Court found that it did not exclude
recourse to ICJ adjudication. An interesting situation arose in the
Electricity Company of Sofia and Bulgaria case. In that case, "another
method of pacific settlement" reservation in the declaration of the appli-
cant, Belgium, was not invoked. Belgian counsel, however, raised the issue
whether a treaty between Belgium and the respondent, Bulgaria, providing
for the jurisdiction of the PCIJ, governed the relations between the parties
concerning the dispute submitted to the Court to the exclusion of their
declarations under Article 36(2). The Court ruled that by concluding the
treaty Belgium and Bulgaria "intended to open up new ways of access to
the Court rather than to close old ways" and did not intend "to weaken
the obligations which they 129
had previously entered into" by virtue of their
Article 36(2) declarations.
In more recent cases this reservation has proven not to bar the Court's
jurisdiction. In the Case Concerning the Arbitral Award of 31 July 1989,
127. Statement by A.D. Sofaer, Legal Adviser, before the Senate Foreign Relations Committee,
4 December 1985, 86 Department of State Bulletin 1, at 69 (1986). See also Department
of State Press Statement of 7 October 1985, 24 ILM 1743 (1985).
128. Some of those reservations refer to "other means of peaceful settlement" while others follow
the language of Art. 95 of the Charter and speak of "other tribunals." The difference is
that those reservations that refer to "other tribunals" would not exclude the Court's
jurisdiction if the dispute has been referred to the Security Council or to a commission of
conciliation.
129. Electricity Company, supra note 12, at 76.
Guinea-Bissau asked the Court to find an arbitral award relating to the

delimitation of the maritime boundary between Guinea-Bissau and Senegal
null and void. An arbitration tribunal established pursuant to an arbitra-
tion agreement delivered the award.130 Senegal's declaration contained a
reservation excluding disputes "in regard to which the parties have agreed
to have recourse to some other means of settlement."131 '
Senegal noted
that if Guinea-Bissau were to challenge the arbitral award on the merits,
the dispute would be excluded from the Court's jurisdiction because it
would be a dispute subject to the arbitration agreement and would fall into
the category of disputes in regard to which the parties have agreed to resort
to another method of settlement. 132 Senegal, however, agreed that there
was a distinction between the dispute relating to the maritime delimita-
tion and the dispute relating to the validity of the arbitral award and that
the latter was not excluded by the reservation. The Court established
jurisdiction emphasizing that the dispute was about the nullity of the 133
arbitral award and not an appeal from it or an application for its revision.
Australia invoked its reservation excluding disputes in regard to which
the parties have agreed to have recourse to another method of peaceful
settlement in a somewhat different situation in Phosphates in Nauru. Nauru
had been placed under the trusteeship system of Chapter XII of the UN
Charter by a Trusteeship Agreement. The Agreement was terminated
shortly before Nauru acceded to independence. Australia contended that
any dispute which arose in the course of the trusteeship fell within the
exclusive authority of the UN Trusteeship Council and General Assembly
and that any such dispute should be regarded as settled by the very fact
of the termination of the trusteeship. Consequently, in the view of
Australia, Nauru and Australia had agreed to have recourse to another
method of peaceful settlement and the Court lacked jurisdiction to deal
with the dispute submitted by Nauru. 134 The Court ruled that the critical
question was whether Australia and Nauru had agreed to settle the dispute
by resorting to an agreed procedure other than recourse to the Court after
Nauru acceded to independence. The Court found that none of the parties
pleaded or showed that such an agreement existed and rejected the
Australian objection. 135
130. Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment,
1991 ICJ Rep. 53, at 57-59, paras. 13-15 [hereinafter: Arbitral Award 1989].
131. Id., at 61-62, para. 22.
132. Id., at 62, para. 23. In addition, since the declaration of Senegal had a reservation ratione
temporis, a dispute relating to the maritime delimitation, unlike a dispute on the
validity of the award, would predate the exclusion date and be excluded by virtue of that
reservation too.
133. Id., at 62, paras. 24-25.
134. Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, 1992 ICJ Rep. 240, at 245-246, paras. 8-10 [hereinafter: Phosphates
in Nauru].
135. Id., at 246-247, para. 11.
The practice of the Court thus indicates that the reservation excluding
disputes in regard to which the parties have agreed to have recourse to
another method of settlement would bar the Court's jurisdiction only if the
agreement is explicit and reveals the clear intent of both states to use a
settlement mechanism other than the Court.
6.4. The multilateral treaty reservation
This reservation, formulated for the first time in the United States decla-
ration of 1946, excludes from the compulsory jurisdiction of the Court
"disputes arising under a multilateral treaty unless [...] all Parties to the
treaty affected by the decision are also Parties to the case before the
Court."' 13 6 Five other states have included a similar reservation in their
declarations: El Salvador, India, Malta, Pakistan and the Philippines.137
The reservation seems to have fallen out of fashion: the most recent
declaration including the reservation is that of Malta of 1983. The reason
is that the reservation has proven ineffective as a bar to the Court's
jurisdiction.
The reservation was considered by the Court in the Nicaraguacase. The
United States pointed out that Nicaragua relied on four multilateral treaties,
including the UN Charter, and argued that insofar as the dispute was one
"arising under" those treaties, the Court could exercise jurisdiction only
if all treaty parties affected by a prospective decision of the Court were
also parties to the case.138 The Court found that the United States objec-
tion was not of a preliminary nature. It observed that the determination as
to which states would be "affected by the decision" should not be left to
the parties but must be made by the Court and that such a determination
was not a jurisdictional issue. 139 At the merits phase the Court found that
the effect of the reservation [...]

is confined to barring the applicability of the
United Nations Charter and [the other treaties invoked by Nicaragua] as multilat-
136. ICJ Yearbook 1946-1947, at 214. For the drafting history of the reservation, see
Compulsory Jurisdiction, International Court of Justice, Hearings before a Subcommittee
of the Committee on Foreign Relations, US Senate, 79th Congress, 2nd Session, at 44;
International Court of Justice, Report of the Committee on Foreign Relations, US Senate,
No. 1835, 79th Congress, 2nd Session, at 6-7; CongressionalRecord, 79th Congress, 2nd
Session, Vol. 92, at 10617-619; Briggs, supra note 9, at 306-308; Wilcox, supra note 112,
at 714-716.
137. The reservations of Malta and Pakistan include the wording "all Parties to the treaty affected
by the decision" while the others exclude disputes under a multilateral treaty unless "all
Parties to the treaty are also Parties to the case before the Court." Obviously, the
requirement that all parties to the treaty are also parties to the dispute is broader than the
requirement that the parties to the treaty affected by the decision are parties to the dispute.
138. Nicaragua Jurisdiction, supra note 5, at 422, para. 68. The United States identified
Honduras, Costa Rica and El Salvador as states that would be affected by the decision.
139. Id. at 425-426, para. 76. But see id., at 604-613, paras. 71-84 (Judge Schwebel, Dissenting
Opinion) for Judge Schwebel's arguments concerning the weakness of the Court's analysis
on the basis of the facts of the case.
eral treaty law, and has no further impact on the sources

40
of international law which
Article 38 of the Statute requires the Court to apply.
It concluded that it "should exercise jurisdiction [...] based upon

customary international law notwithstanding the exclusion from its
jurisdiction of disputes 'arising under' [multilateral treaties]. 14 1 Moreover,
the Court stated that it could apply the customary norm relevant to the
dispute even if it had exactly the same content as the treaty norm because
these norms retained separate existence and applied separately. 142 This
approach practically deprived the reservation of any effect on the case. 143
On that basis, the prediction was made that
a multilateral treaty reservation in any future declaration of acceptance is likely to

be irrelevant at best; at worst, it would prevent the Court from applying the concrete
treaty provisions to which [the declarant state] had consented and would remit the
Court to the much44 more uncertain process of finding and applying customary
international law.
The prediction turned out to be correct. Aware of the conclusions of the

Court in Nicaragua, India argued in the Case Concerning the Aerial
Incident of 10 August 1999, that its multilateral treaty reservation was
different from that of the United States. The United States reservation
required that all parties to the treaty affected by the decision also be parties
to the case. The Indian reservation, on the other hand, required that all
parties to the treaty also be parties to the dispute. India contended that,
in contrast to the United States reservation, the Indian reservation referred
to an objective condition, had nothing to do with the arguments on the
merits and, therefore, had an exclusively preliminary character. 145 The
applicant, Pakistan, also very much aware of the Court's findings in
Nicaragua, observed that there was no need to invoke the reservation
because Pakistan did not need to invoke the United Nations Charter "as
the substantive basis for its case." Pakistan emphasized that it relied on
customary international law and the fact that customary international law
was embodied in the Charter did not weaken its case. 146 The Court did
not decide the issue because it found it lacked jurisdiction on other
of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 38, para. 56
[hereinafter: Nicaragua Merits].
141. Id., at 97, para. 182.
142. Id., at 94-97, paras. 176-182.
143. See L.B. Sohn, Suggestions for the Limited Acceptance of Compulsory Jurisdiction of the
International Court of Justice by the United States, 18 Georgia Journal of International
Law 1, at 15 (1988).
144. L.F. Damrosch, MultilateralDisputes, in L.F. Damrosch (Ed.), The International Court of
Justice at a Crossroads 376, at 396 (1987).
145. Aerial Incident 1999, supra note 28, Counter-Memorial of India, para. 82 (not yet
published). See also Aerial Incident 1999, supra note 28, paras. 3 and 29.
grounds.147 Some judges, however, referring to the findings of the Court

in Nicaragua, expressed the view that "[t]o the extent that the actions
complained of by Pakistan would prima facie constitute breaches under
customary international law, the reservation is simply irrelevant and cannot
bar the Court's jurisdiction." 148 This view strongly suggests that the 'Indian
variation' of the multilateral treaty reservation would not bar the Court's
jurisdiction either since it would still allow the application of customary
international law.
7. RESERVATIONS RATIONE PERSONAE AND THE APPLICATION OF

RECIPROCITY
Reservations ratione personae have never been very popular. While used
somewhat more often under the PCIJ, today most of them have lost their
significance. One example is the reservation excluding disputes with states
that the declarant state has not recognized or with which it has no
diplomatic relations. Three states under the PCIJ and two states under the
ICJ made this reservation. Of those, only India's 1974 declaration remains
in force. 149 Another example is the reservation excluding disputes with
states that are not members of the United Nations. Only two states have
included this reservation in their declarations and only one of these
declarations, the 1957 declaration of Cambodia, remains in force. Finally,
one declaration, that of Liberia, excludes disputes with states which are
not parties to the Court's Statute.
The most common reservation rationepersonae is the reservation in the
declarations of the members of the British Commonwealth excluding
disputes with any other member of the British Commonwealth. The dec-
larations of six British Commonwealth countries under the PCIJ contained
such a reservation. 150 The reservation was included in the declarations of
ten countries under the ICJ. The declarations of eight states currently
contain the reservation. 151 As recently as 1995, this author argued that the
reservation may have outlived its usefulness because of the erosion of the
Commonwealth system and the lack of other means for resolving possible
147. Id., para. 46.

148. Aerial Incident 1999 supra note 28 (Judge Al-Kasawneh, Dissenting Opinion, para. 7)(not
yet published).
149. The reservation was invoked by India against Pakistan in the Case Concerning Trial of
Pakistani Prisoners of War. See Trial of Pakistani Prisoners of War (Pakistan v. India),
1973 ICJ Pleadings, at 142. The Court did not rule on the reservation since Pakistan asked
it to discontinue the proceedings. See Trial of Pakistani Prisoners of War (Pakistan v. India),
Order of 15 December 1973, 1973 ICJ Rep. 347, at 348.
150. Australia, Canada, India, New Zealand, South Africa, and the United Kingdom. Under the
reservation, disputes with any member of the Commonwealth "shall be settled in such
manner as the parties have agreed or shall agree." Hudson (PCIJ), supra note 7, at 683,
685, 689, 691-692, 695-696, and 699.
151. Barbados, Canada, Gambia, India, Kenya, Malta, Mauritius, United Kingdom.
disputes between its members. 15 2 In the most recent case decided by

the Court, the Case Concerning the Aerial Incident of 10 August 1999,
Pakistan made a similar argument against the Commonwealth reservation
of India. It153
argued that the reservation was inapplicable because it was
"obsolete." ' Pakistan stated that the reservation
grew out of a conception of what was then called "the British Commonwealth of
Nations". This was based on the idea that international law was not applicable in
relations between the Commonwealth members. [...] The Commonwealth was a
close-knit family. Disputes between its members were not governed by interna-
tional law and were not appropriate for settlement in an international court. They
were intended to be dealt with in other "family tribunals" which, in fact, never
came into existence. [...] [Nowadays] the Commonwealth members [...] have come
to regard each other as ordinary states between whom the normal rules of
international law apply and between whom litigation may take place upon an
international level, in the ordinary way.154
The Court, however, disagreed and found that the Commonwealth reser-
vation could be validly invoked in the case. 155 It noted that India had
included the Commonwealth reservation in the four declarations made
since its independence in 1947, the latest being made in 1974, and stated:
While the historical reasons for the initial appearance of the Commonwealth
reservation [...] may have changed or disappeared, such considerations cannot,
however, prevail over the intention of the declarant state, as expressed in the actual
text of its declaration. India has repeatedly made clear that it wishes to limit in
this manner the scope ratione personae of its acceptance of the Court's jurisdic-
tion. Whatever
1 56
may have been the reasons for this limitation, the Court is bound
to apply it.
The Court thus unambiguously endorsed the right of a state to make

reservations in its acceptance of the compulsory jurisdiction and the
Court's obligation to give force to such reservations, regardless of the
reasons for making them. The Court refused to discuss India's motives
given that the intended scope of the reservation was clear from the text.
Pakistan argued in addition that because the Commonwealth reserva-
tion had lost its raison d'tre it was today directed only at Pakistan and
was therefore discriminatory and "an abuse of right." 157 In fact, in previous
declarations made by India, the Commonwealth reservation excluded states
that were members of the Commonwealth at the time of making the
declaration. In 1974, India included in its declaration a new version of
152. Alexandrov, supra note 6, at 120.

154. Aerial Incident 1999, supra note 28, Professor Lauterpacht, Statement in the Verbatim
Record of public sitting of 3 April 2000, Doc. CR 2000/1, paras. 2-3 (not yet published).
156. Id., para. 44.
157. Id., para. 30.
the reservation referring also to states that had been but no longer were
members of the Commonwealth. Pakistan had left the Commonwealth "in
or about 1972";158 the only other states that had left the Commonwealth
were South Africa in 1960 and Ireland in 1948. These circumstances
invited the conclusion that the change in the wording of the Indian
reservation "was necessary to bar the Court's jurisdiction" with respect
to Pakistan. 15 9 The Court nevertheless rejected this argument: first, because
the reservation referred generally to states which are or have been members
of the Commonwealth, not specifically to Pakistan; and second, because
states "are in any event free to limit the scope ratione personae" of their
acceptance of the compulsory jurisdiction. 160 The Court thus suggested that
India is free to exclude Pakistan from the scope ratione personae of its
declaration under Article 36(2) if India so wishes.
8. CONCLUSION
The increase in the number, scope and variety of reservations tends to

restrict the compulsory jurisdiction of the Court. This tendency is multi-
plied by the application of the principle of reciprocity. Reservations,
however, are inevitable. They provide for the flexibility most states desire
in accepting the compulsory jurisdiction of the International Court of
Justice. Reservations allow states to adapt their interests to international
adjudication. They reconcile state sovereignty with the compulsory
jurisdiction of an international adjudicating body, which explains the
significant number and variety of reservations made by states in their
declarations under Article 36(2). This trend has continued in the last
decade. Yet reservations have not led to the decline of the compulsory
jurisdiction under Article 36(2). The right to include a variety of reser-
vations in unilateral declarations under Article 36(2) has in fact resulted
in a wider acceptance of the compulsory jurisdiction of the International
Court of Justice. The last ten years have demonstrated that the compul-
sory jurisdiction of the Court is far from declining. The Court has con-
tributed to that trend by upholding and articulating in broad terms,
including in several recent cases, the freedom of states to make reserva-
tions when accepting the compulsory jurisdiction.
The Court's jurisprudence has shown that some types of reservations
provide a viable protection of states' interests against undesirable lawsuits
while others have proven ineffective or inapplicable. Practice has also
158. Aerial Incident 1999, supra note 28 (Judge Pirzada, Dissenting Opinion, para. 40) (not
yet published).
159. Aerial Incident 1999, supra note 28 (Judge Al-Kasawneh, Dissenting Opinion, para. 11)
(not yet published). In his view, there was "no doubt [...] that the reservation was intended
to operate against Pakistan."
demonstrated that states should use the tool of including reservations in

their declarations with caution. In its desire to safeguard itself from being
brought before the Court for certain categories of disputes or by certain
other states, a state should always keep in mind that, on the basis of
reciprocity, it will not be able to bring before the Court the excluded
categories of disputes and the excluded states.

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Keywords: compulsory jurisdiction; International Court of Justice; reservations to

The Statute of the International Court of Justice (ICJ) allows states to

14 Leiden Journal of International Law 89-124 (2001)

new reservations that offer better protection against undesirable lawsuits,

2. ACCEPTANCE OF THE COMPULSORY JURISDICTION OF THE

The basis of the jurisdiction of the International Court of Justice is the

The characteristic of this compulsory jurisdiction is that it results from a previous

The obligation of a state to accept the Court's jurisdiction with respect to

Declarations of acceptance of the compulsory jurisdiction of the Court are facul-

Indeed, states have conditioned their acceptance by many, diverse, and

3. RESERVATIONS IN DECLARATIONS ACCEPTING THE COMPULSORY

3.1. Legal nature of declarations under Article 36(2)

A declaration under Article 36(2) is a unilateral act by which a state

pursuant to Article 36, paragraph 2, of the Statute."13 It is noteworthy that

The r6gime relating to the interpretation of declarations made under Article 36 of

and "the provisions of that Convention may only apply analogously to

interpret the relevant words of a declaration including a reservation contained

declarations under Article 36(2).22 According to that rule, an ambiguous

3.2. Permissibility of reservations and their 'severability' from the

No provision of the Statute explicitly authorizes a declarant state to make

22. Id., para. 43.

compulsory jurisdiction. As the Court pointed out in the Case Concerning

The FisheriesJurisdiction case offered an interesting example of how the

Conditions or reservations thus do not by their terms derogate from a wider

their measures or actions are illegal 4or

3.4. Reciprocity as a reservation

Should states explicitly refer to reciprocity in their declarations? States

44. Aerial Incident 1999, supra note 28, para. 30.

obligation") and reciprocity is thus embodied in Article 36(2) and is an

reciprocity:, 57 they recognize the compulsory jurisdiction of the Court both

4. THE APPLICATION OF RECIPROCITY: SOME GENERAL COMMENTS

4.1. Application of reciprocity to reservations

57. Briggs, supra note 9, at 238.

In what has become the classic statement of the International Court of

Reciprocity in the case of Declarations accepting the compulsory jurisdiction of

The principal legal consequence of the condition of reciprocity is that the

62. Norwegian Loans, supra note 29, at 23.

submitted to the Court must belong to a category of disputes that neither

4.2. Application of reciprocity to duration and procedures for

Article 36(3) allows declarations to be made "for a certain time." Practice

This variety of time limits, termination and modification procedures has

66. Nicaragua Jurisdiction, supra note 5, at 418, para. 59.

The Court further stated that

The finding of the Court is quite logical since otherwise an unwilling

a determination of the existence of the "same obligation" requires the presence of

4.3. The 'sitting duck' problem

Declarations under Article 36(2) include an element of unpredictability.

73. Nicaragua Jurisdiction, supra note 5, at 420-421, para. 64.

5. RESERVATIONS RATIONE TEMPORIS AND THE APPLICATION OF