Lauterpacht 1930

London School of Economics
The Suntory and Toyota International Centres for Economics and Related Disciplines
The British Reservations to the Optional Clause

Author(s): H. Lauterpacht
Source: Economica, No. 29 (Jun., 1930), pp. 137-172
Published by: Wiley on behalf of The London School of Economics and Political Science and
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I930]
The British Reservations to the

Optional Clause
BY HI. LAUTERPACHT, LL.D.
The signature by Great Britain, on September igth, i929, of

the so-called Optional Clause of Article 36 of the Statute of
the Permanent Court of International Justice must be counted
as one of the most important events in the history of inter-
national arbitration. For the first time an adequately armed
Great Power with world-wide commitments effectively undertook
a general obligation binding it to submit to an international
court future disputes of a practically unlimited scope. The
form in which this new duty of obligatory judicial settlement
was assumed has had the inevitable effect of focussing attention
not so much on the positive aspects of the obligation as on
the question how far, as the result of the reservations
accompanying the acceptance, Great Britain, has limited the
r.ange of the major ulndertaking. In this connection, claims of
a conflicting nature have been put forward as to the value of
the British signature of the Optional Clause as an expression
of the professed determination of the British Government to
assume new and substantial obligations in the sphere of com-
pulsory judicial settlement of international disputes. Whereas
the official view is that a real and important advance has been
made on the road of pacific settlement, there seems to be a
widespread feeling that the reservations attached to the British
signature have seriously impaired both the signature itself and,
even more so, the Optional Clause as such. The object of this
article is to examine how far these doubts are justified. In
particular it is proposed to discuss: first, the individual
reservations in the order in which thev appear in the declaration
of acceptance; secondly, the question of the absence of a reserva-
tion as to prize law, in particular in the light of the Official
Memorandum issued in January I930, by the British Govern-
137
B
138 ECONOMICA [JUNE
ment on the question of the Optional Clause1; thirdly, the

question of admissibility of reservations to the Optional Clause,
and of the effect of the British reservations on the Optional
Clause in general aind on the value of the British acceptance in
particular.
It is convenient to reproduce here in full the British
declaration of acceptance of the Optional Clause:
" On behalf of His Majesty's Government in the United

Kingdom and subject to ratification, I accept as compulsory
ipso facto and without special convention, on condition of
reciprocity, the jurisdiction of the Court in conformity with
Article 36, paragraph 2, of the Statute of the Court, for a
period of ten years and thereafter until such time as notice
may be given to terminate the acceptance, over all disputes
arising after the ratification of the present declaration with
regard to situations or facts subsequent to the said ratification,
other than:
" Disputes in regard to which the parties to the dispute
have agreed or shall agree to have recourse to some other
method of peaceful settlement; and
" Disputes with the Government of any other Member of
the League which is a Member of the British Commonwealth
of Nations, all of which disputes shall be settled in such
manner as the parties have agreed or shall agree; and
" Disputes with regard to questions which by international
law fall exclusively within the jurisdiction of the United
Kingdom,
" And subject to the condition that His Majesty's Govern-
ment reserve the right to require that proceedings in the
Court shall be suspended in respect of any dispute which has
been submitted to and is under consideration by the Council
of the League of Nations, provided that notice to suspend is
given after the dispute has been submitted to the Council
and is given within ten davs of the notification of the initia-
tion of the proceedings of the Court, and provided also that
such suspension shall be limited to a period of twelve months
or such longer period as may be agreed by the parties to the
dispute or determined bv decision of all the members
of the Council other than the parties to the dispute."2
1 Misc., No. 12 (1929), Cmd. 3452.

2 Declaratioin made on belhalf of H.M.G. in the United Kingdom at the
time of the Signature of the Optional Clause. Geneva, September igth, 1929.
Misc., No. 8. (1929).
I930] BRITISH RESERVATIONS To THE OPTIONAL CLAUSE I39
II
THE RESERVATIONS
(a) The Reservation of Reciprocity.-The effect of a

reciprocity clause in a clear obligation, unaccompanied by
qualifications or reservations, is simple and automatic. The
position becomes complicated where the obligation is limited or
made uncertain by the addition of reservations. Thus the
expression " on condition of reciprocity " does not mean only
that Great Britain is bound in regard to such States only as have
signed and ratified tlle Optional Clause. One of the effects
of reciprocity is that, in relation to Great Britain, any other
signatory State is bound onlv to the extent to which Great
Britain has bound herself. It means that any British reserva-
tion, with its possible ambiguities and liability to abuse, can
be put forward against her by any signatory to the Optional
Clause. Thus, for instance, the uncertainty surrounding the
reservation as to matters of domestic jurisdiction may affect not
only the position of Great Britain confronted with a claim
directed against her postulated right to regulate the admission
of aliens into this country; it may also be used by any State
as a weapon in order to defeat a British claim arising out of
an alleged denial of justice. The same applies to every British
reservation so far as it goes or so far as it raises doubts. Any
complications and uncertainties introduced by the British
reservations are, in relation to Great Britain, multiplied by the
number of effective signatures to the Optional Clause.
(b) Limitation of the Effect of the Signature to Disputes
Arising after the Ratification with regard to Situations or
Pacts Subsequent to it.-By adopting this formula, Great
Britain has lent her authoritv to a final incorporation into the
Optional Clause of a restrictive clause of considerable indefinite-
ness. Before September I929 a similar reservation to the
Optional Clause had been attached bv some of the signatories.
Thus the Netherlands had limited their signature to future
disputes, as have also Latvia, Esthonia, and Ethiopia. It was
in the Belgian declaration of acceptance that there appeared for
the first time the reservation limiting the signature to
" disputes arising after the ratification of the present declaration
with regard to situations or facts subsequent to this ratifica-
tion. Germany and Spain subsequently adopted the same
3 For the text of these reservations see Publications of the Permanent

Court, Series D, No. 5, pp. 73 et seq.
140 ECONOMICA LJUNE
formula.4 The reservation restricting the duty to arbitrate to

future disputes did not as a rule figure in the arbitration treaties
concluded before the World War. After the War, it appeared
for the first time, in the Locarno treaties, which excepted
4 disputes arising out of events prior to the present Treaty and
belonging to the past,"5 in a number of treaties concluded by
France and Belgium mainly after the LJocarno model,6 and in a
small number of treaties of minor importance.7 There are indeed
some treaties-like those concluded by Germany with Switzer-
land in 1921,8 with Sweden in I9249 or with the Netherlands in
192610-which except disputes arising directly out of the World
War, but this is a reservation of a definite content. In a large
number of arbitration conventions, concluded before and after
the World War, the obligation to have recourse to judicial settle-
ment is expressly made to cover past events.1' The legal
literature on the subject of reservations to arbitration treaties
is singularly free of attempts to explain the reservation as to
past disputes. In fact, of all reservations this particular one
seems to be the least capable of explanation in terms of general
principle. It is on the face of it arbitrary, and it saddles future
governments with a duty which the government stipulating the
reservation is unwilling to accept in respect of the acts of its
predecessors.
Most probably, this reservation was inserted by Great Britain
with the view mainly to excluding two classes of controversies:
4 See, ibid., Series E, No. 4, p. 422 and No. 5, p. 392.
5 See, for instance, Article I of the Arbitration Convention between Ger-
many and France, of October i6th, 1929, in League of Nations, Arbitration
and Security, Systematic Survey of the Arbitration Conventions and Treaties
of Mutual Security Deposited with the League of Nations, Doc. C 653, M. 216,
1927, V, p. 413-
' Treaty of Arbitration and Conciliation between France and Roumania, of
June loth, 1926, ibid., p. 253; between France and the Kingdom of the Serbs,
Croates, and Slovenes, of November iith, 1927, ibid., p. 325; between
Belgium and Sweden, of April 30th, 1926, ibid., p. 297, and four other
Belgian treaties.
7 Austria and Poland, of April i6th, 1926, ibid., p. 280; Hungary and Italy,
of April 5th, 1927, ibid., p. 317; Austria and Spain, of June iith, 1928. League
of Nations Treaty Series (cited as L.N.T.S.), No. i894; United States and
Hungary, of January 26th, 1929, ibid., No. 2200; Roumania, Czechoslovakia,
and Yugoslavia, of May 2Ist, 1929, ibid., No. 2210.
8 Of December 3rd, Arbitration and Security, P. 200.
9 Of August 29th, ibid., p. 219.
10 Of May 20th, ibid., p. 291.
11 See, for instance, the pre-war treaties of Italy with Belgium (of Novem-
ber i8th, I910, Martens, N.R.G., 3rd. ser., vol. V, p. 20), Denmark (of December
i6th, 1905, ibid., vol. II, p. 30I) and the Netherlands (of November 20th, 1909,
ibid., vol. III, p. 829); of Brazil with Sweden (of December i4th, I909, ibid.,
vol. IX, p. 656); and Denmark (of November 27th, I9II, ibid., vol. IX, p.
36I); the post-war treaty of Switzerland with Hungary (of June i8th, 1924,
Arbitration and Security, p. 210), or that between the Baltic States, including
Poland (of January 17th, 1925, ibid., p. 214).
I930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE I41
territorial disputes, and claims arising out of the operations of

the British fleet and the application of Prize Law by Great
Britain during the XVorld War. There is little doubt that the
reservation achieves both these objects. In regard to the first,
practically all territorial disputes are excluded at least for a
long time to come. As a rule territorial disputes are grounded
in situations and facts belonging to a relatively distant past,
usually to the seventeenth or eighteenth centuries. The
ingenious arguments used in i896 by Lord Salisbury in his
correspondence with the American Secretary of State with the
view to excluding territorial disputes from the purview of the
proposed general arbitration treatyv2 have now been effectively
replaced by an elegant but comprehensive clause. In the last
forty years Great Britain has submitted to arbitration a number
of territorial disputes including those concerning the Venezuelan
frontier of British Guiana in 1897, the Alaskan boundary in
1903, the Brazilian frontier of British Guiana in I904, and the
Walfisch Bay territory in i9ii. No one of these disputes would
have fallen under the terms of a general arbitration treaty
excluding past " situations and fact." The same relates to
possible disputes and claims like those connected with the
Falkland Islands, the Bahrein Islands or some of the Antarctic
regions. The exclusion of disputes arising out of British
belligerent action during the World War may be justified in
view of the present state of the Law of Prize, but it may be
doubted whether it was necessary to have recourse to the elastic
and comprehensive reservation used in the declaration of
acceptance. A specific reservation referring to the events arising
out of the World War-like that used in some of the treaties
referred to above-would have had all the effect desired in this
matter. An even better, because more concrete, example could
have been found in the text of the Danish-German Arbitration
Treaty of June 26th, 1926, which excepts " disputes with regard
to claims for compensation arising out of military measures
taken during the World War."'3 The form of the British
reservation is a tvpical instance of the genesis of most of the
elastic reservations encountered in arbitration treaties. Their
origin usually lies in the wish of one or more contracting parties
to exclude certain definite claims from the purview of the treaty.
Instead of referring eo nomine to the claims in question, the
12 Despatch of Lord Salisbury to Sir Julian Pauncefote, May i8th, I896,
printed in Moore, History and Digest of International Arbitrations to which;
the United States has been a Party (I898), vol. I, p. 971.
13 Arbitration and Security, p. 269.
142 ECONOMICA [JUNE
draftsmen, led by a misguided passion for juristic definition,

proceed to include the specific object of possible disputes into a
more general genius proximurn which necessarily goes beyond
the object of the limitation as originally intended."4
The effect of this particular reservation-like that of other
British reservations-lies less in the actual limitation of the
scope of disputes submitted to obligatory arbitration as in the
measure of uncertainty introduced by it. For it is clear that
the phrase " situations and facts prior to the ratification " is
vague and admitting of a variety of interpretations. An event,
giving rise to a dispute, may happen in 1932, but the essential
facts relevant to and forming the background of the controversy
may have happened many decades ago. If, for instance, the
dispute concerning the Tunis and Morocco Nationality Decrees
were to happen now, with Great Britain and France bound by
the Qptional Clause, what would be the situation? The decrees
may be issued in I930, but would not the dispute be largely
related to situations and facts, including the establishment of
the protectorates and relevant political arrangements, which
happened many years before?" The Behring Sea controversy,
decided in 1893 by a special tribunal, offers an instructive
example of the possibilities of this reservation. The seizures
of British vessels and, generally, the exercise of the jurisdiction
of the United States in the Behring Sea which were the imme-
diate cause of the dispute, took place mainly in the decade
preceding the arbitration. But, according to the contention of
the defendant State, the dispute was largely grounded in facts
and situations belonging to the first part of the nineteenth cen-
tury, i.e. the assertion by Russia in I82I of her rights of
exclusive jurisdiction in the areas in question and the attitude
of the United States and Great Britain to the Russian claims
at that time. Would that dispute have fallen under the terms of
a general arbitration treaty limited by a reservation excluding
past events and situations ? The history of international arbitra-
tion offers many an example of similar situations. Disputes
may not only arise, but also be deliberately staged, which,
although the event giving rise to the dispute happened subse-
quent to the ratification of the acceptance of the Optional Clause,
actually depend for their decision on the legal solution of the
14 The Dutch and Belgian reservations, obviously designed to meet the

case of the Scheldt and cognate controversies, offer a clear instance of this
practice.
15 See Publications of the Permanent Court, Series B, No. 4, for some of
the legally relevant aspects of this dispute.
major difference connected with the status of the territory in

question. The country making this reservation may thus be
compelled to appear before the Court in a dispute which it appa-
rently wished to exclude from the scope of its objections. What
will be the attitude of the Court in the case of a State thus ques-
tioning its jurisdiction over a matter which happens subsequent
to the ratification of the Optional Clause on the ground that it in
fact relates to a situation or fact prior to it?
These queries do not exhaust the difficulties inherent in this
reservation. Does the restriction to situations and facts prior
to the ratification include the interpretation of treaties concluded
before the ratified acceptance of the Optional Clause? This
may well be doubted. But this suggestion has nevertheless been
put forward, in particular in colnnection with the above-mentioned
provisions of the Locarno treaties. It was maintained, and widely
believed, that they had the effect of precluding Germany from
asking for a judicial interpretation of the Treaty of Versailles by
the Permanent Court of International Justice, for instance, in re-
gard to the provisions of the Treaty relating to the evacuation of
the Rhineland. The argument that the Optional Clause itself
provides for the interpretation of treaties is not decisive seeing
that even if the reservation has the effect of excluding the inter-
pretation of past treaties, Article 36 of the Statute may still be
applicable to the interpretation of future treaties. The writer
does not believe that the reservation has this effect, but his
reluctance to interpret it in this way is due less to any logical
impossibility of such an interpretation-why should not the
interpretation of a treaty concluded fifty years ago and embodv-
ing certain political arrangements of the time be regarded as
relating to a situation prior to the ratification ?-than to its
practical consequences, which take awav one's breath. Equally,
a wide avenue of discussion and consequent uncertainty is left
open by other parts of this reservation. When does a dispute
arise? Does the verb refer to the time at which the injurious
event occurs ? Or to the time when the claim is first
put forward through appropriate channels? Or when the claim
has been rejected and the parties have finally disagreed? Or,
to raise another query, what does a situation prior to ratification
mean? If legislation injuriously affecting aliens and alleged
to be contrary to international law has been passed prior to ratifi-
cation, would the continued application of such legislation fall
under the terms of the reservation? One can easily multiply
these questions. It would not be accurate to maintain that
144 ECONOMICA [JUNE
queries like those raised here and in other parts of this article
are no more than ingenious subtleties of an academic lawyer.
One who surveys the entire series of judgments of the Perma-
nent Court of International Justice will see that from this point
of view its work may without exaggeration be expressed
in terms of pleas to jurisdiction, which occurred in the
majority of the cases brought before the Court and in which
recourse was had to hair-splitting technicalities of language and
grammar in regard to the provision creating the Court's juris-
diction. And there are even cases on record in which the juris-
diction of the Court was questioned on somewhat specious
grounds after the parties had by special agreement decided to
submit a dispute to its decision.l"
(c) The Denunciation Clause.-A time limit partakes logically
of the nature of a reservation, and it may therefore be shortly
referred to. The British signature is declared to be valid " for
a period of ten years and thereafter until such time as notice
may be given to terminate the acceptance." This seems to be
an unusual formula of fixing the duration of an obligation.
Assuming that the signature, which was ratified on February
Sth, I930, is not terminated before or on February 5th,
1940, for how long will it continue to be valid after that
date? Will Great Britain then be at liberty to terminate it at
any moment which may suit her convenience, for instance, to
avoid an impending action before the Court? And, in view
of the operation of the rule of materin1 reciprocity, will other
States be in a position to adopt a similar course as against Great
Britain ? A wording which leaves the State at liberty to
denounce an arbitration treaty at any moment seriously impairs
its value, and although it can be found in a number of arbitration
conventions,"7 there is little justification for it in a general
treaty except inadvertence in drafting. There seems to have
been no convincing reason for departing from the workable
formula adopted in almost all Hague Conventions and many
other treaties providing for a period of one year or more from
which the denunciation shall take effect.'8
16 See, for instance, the dissenting opinions of Judge Pessoa in Judgments

No. 14 and i5, Publications of the Court Series A, Nos. 20 and 2I, pp. 62-65,
and pp. 139-142, respectively.
17 See, for instance, the treaties between the United States and Spain, of
September isth, 1914, L.N.T.S., No. 2030; and between the United States and
Albania, of October 22nd, 1928, ibid., No. 2090.
18 See, e.g. Article 96 of the Hague Convention (I) of 1907 for the Pacific
Settlement of International Disputes
"In the event of one of the Contracting Powers wishing to denounce the
present Convention, the denunciation shall be notified in writing to the
1930] BRITISH RESERVATIONS To THE OPTIONAL CLAUSE I45
(d) Reservation of Disputes in regard to which the parties to

the dispute have agreed or shall agree to have recourse to some
othier method of peaceful settlement.-This reservation, which
appears in a great number of post-war arbitration treaties," was
apparently not intended to limit seriously the scope of the signa-
ture. In his accompanying declaration, when referring to this
reservation, the British Secretary of State for Foreign Affairs
said: " Commercial treaties and conventions dealing with special
subjects, such as reparations, or with technical matters, such
as copyright, very often contain provisions setting up special
tribunals to deal with disputes which may arise as to the meaning
or application of their terms. When that is the case, the
dispute will be dealt with as provided in the agreement and will
not be submitted to the Court at the Hague." Thus, to mention
one instance illustrating this passage, the Treaty of Peace of
Lausanne, of July 24th, I923, confers jurisdiction not only upon
the Permalnent Court of International Justice, but also upon the
Council of the League, arbitral tribulnals, mixed arbitral tribu-
nals, and a boundary commission. One of the main reasons for in-
sertinlg this reservation was probablv not so much any supposed
inability of the Permanent Court of International Justice, with its
machinery of Special Chambers and summary procedure, to deal
with matters of this description as the wish not to disturb the.
existing arrangements.20 However, although there may have
been reasons for leaving intact the jurisdiction of minor and
special tribunals on particular subjects and in regard to particu-
lar treaties, no reason has been assigned and no good reason
seems to exist why the signature should not have been given the
Netherland Government which shall at once communicate a duly certified

copy of the notification to all the other Powers informing them at the same
time of the date on which it was received.
"The denunciation shall only have effect in regard to the notifving
Power, and one year after the notification has reached the Netherland
Government."
19 Article I of the Locarno Arbitration Treatv between Germany and France
provided " Disputes for the settlement of which a special procedure is laid
down in other conventions in force between Germany and France shall be
settled in conformitv with the provisions of those conventions."
20 However, it will be noted that numerous recent commercial treaties,
including those concluded by Great Britain, and general and particular con-
ventions of a technical character, confer jurisdiction upon the Permanent
Court. See, for instance, Treaty of Commerce and Navigation between Great
Britain and Yugoslavia, of Mav I2th, I927, Treaty Series, No. 9 (ig28). See,
e.g., the Treaty of February I7th, i925, between Finland and Norway, concern-
ing the floating of timber in the Pasvik, L.N.T.S., No. II94; the Barcelona
Convention on the Regime of Navigable Waterways of International Con-
cern, of April 20th, I92I, ibid., No. I72; Convention concerning the Sup-
pression of and Traffic in Obscene Publications, of September I2th, 1923,
ibid., No. 685; and other treaties ennumerated in Publications of the Court,
Series D, No. 5, p. 358.
146 ECONOMICA [JUNE
effect of substituting the jurisdiction of the Permanent Court of

International Justice for that of other agencies of settlement in
regard to general arbitration treaties as distinguished from tri-
bunals called upon to deal with special matters under a compro-
missory clause.2" The adoption of this course would have had
the advantage of removing manv a doubt raised by the reserva-
tion. The expression " some other method of pacific settle-
ment " includes, as may be seen from the declaration of the
Foreign Secretary, not only non-judicial methods as distinguished
from the judicial procedure, but also judicial bodies other than
the Permanent Court. This being so, does the reservation have
the effect of maintaining the treaties-possibly including their
broad reservations of independence, honour, and vital interests-
which confer jurisdiction upon the Permanent Court of Arbitra-
tion? Most probably this is not the case, but the wording of
the -reservation and of the accompanying declaration raises the
question. Neither can it be admitted that the phrase " some
other method of pacific settlement " can be stretched to the point
of including the usual reservations of vital interests, indepen-
dence, and national honour in those treaties of the 1903 type
in which the Permanent Court of International Justice has been
substituted for the Permanent Court of Arbitration. There is,
we believe, no substance in the proposition that a treaty with the
traditional restrictive clauses constitutes " some other method
of pacific settlement " as distinguished from a treaty in which
these clauses do not appear. On the contrary, as the signature
of the Optional Clause is tantamount to the conclusion of a new
treaty (or rather to accession to an already existing treaty), the
correct opinion seems to be that the former general arbitration
treaties have been abrogated as the result of a merger of covenants
or of tacit rescission. But, in view of the doubts to which the
wording of the reservation may give rise, perhaps it would have
been advisable not to make the reservation apply to the general
arbitration treaties previously concluded and to state that the
latter have been abrogated as the result of the acceptance of the
Optional Clause. There are some recent arbitration treaties
providing expressly for the abrogation of previous arbitration
agreements.22
21 Thus when in the last eight years Great Britain renewed her arbitratioin
treaties concluded in and after 1903, she as a rule substituted the jurisdic-
tion of the Permanent Court of International Justice for that of the Perma-
nent Court of Arbitration.
See, for instance, Exchange of Notes of November gth, 1924, between the
British and Swedish Governments, further renewing the Arbitration Con-
ventions of August iith, i904, Arbitration and Security, p. Iii.
22 See, for instance, Article 24 of the Treaty of March 24th, I928, between
Denmark and Spain, L.N.T.S., vol. LXXIV, p. 95.
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE I47
The second main reason which prompted this reservation was

to ensure the undisturbed operation of the procedure of concilia-
tion which forms part of the great majority of post-war treaties
of pacific settlement.23 In this respect the reservation raises
an interesting question. Is its effect merely suspensive or does
it altogether exclude recourse to arbitration when there is a pre-
vious or subsequent treaty providing for conciliation without
reference to judicial settlement in case of a failure of the concilia-
tion procedure? What is in this case the position if the recom-
mendation of the conciliator has failed of acceptance? Does the
signature of the Optional Clause become operative, or is the
abortive procedure of conciliation tantamount to a final fulfilment
of the duty of pacific settlement? The wording of the reserva-
tion does not warrant a confident answer to these questions.
(a) Reservation as to lnter-Imperial Disputes.-The present
article is limited to a consideration of the international effects of
the British reservations, and it is therefore not intended to
discuss this reservation in its bearing on the problem of the rela-
tions of the members of the British Commonwealth of Nations in
their capacity as such. From the point of view of international
law the reservation raises one point of interest: How far may a
State signing the Optional Clause expressly exclude one or more
States from its operation? May France when signing the
Optional Clause add a reservation to the effect that her signature
does not apply to Germany? The question, in connection with
the British reservation, does not arise in regard to Canada, South
Africa, New Zealand, Australia, and India, who have adopted
an identical reservation and who may therefore be regarded as
excluded from the operation of the British acceptance not only as
the result of the British reservation but in consequence of the
principle of reciprocity. But although the situation is different
in regard to the Irish Free State, which in its declaration of
acceptance deliberately refrained from reserving inter-imperial
disputes, there is nothing in the wording-nor probably
in the spirit-of the Optional Clause which prevents a govern-
ment from limiting the number of States to which it wishes
its signature to extend. It is true that there is no prece-
dent for such action, but the absence of precedent can here
hardly be regarded as decisive. Legally a consummated signa-
ture of the Optional Clause amounts to a conclusion of an arbitra-
23 This circumstance probablv explains whv several States-like Estonia,

Ethiopia, The Netherlands, Latvia, and Germany-which signed the Optional
Clause before 1929 without other reservations, nevertheless adopted the
reservation as to other methods of settlement.
148 ECONOMICA [JUNE
tion treaty in regard to previous signatories and to a binding offer

to conclude such a treaty in regard to other Members of the
League. There is no reason-in the present stage of inter-
national law, when recourse to judicial settlement is optional-
why a contractual transaction of this nature should deprive a
State of the right to choose the parties with whom it is willing to
conclude an arbitration treaty. We do not believe, therefore,
that the Irish Free State may claim that so far as it is concerned
the British reservation is invalid. The only circumstance which
here introduces an element of doubt is the fact that apparently
the British Government was in 1928 of the opinion that the
signature of the Optional Clause must be general and not dis-
criminating against any State.24 25
(b) Disputes with regard to Questions which by International
Law fall exclusively within the Jurisdiction of the United King-
dom.-This is a reservation of considerable importance in view
of the uncertainty and doubts with which it has enveloped the
British signature. In the declaration of the Foreign Secretary
accompanying the signature, in the official memorandum on the
Optional Clause, and in the course of the principal parliamentary
debate on the matter there was apparent a studied determination
to refrain from throwing any light on the crucial aspect of this
reservation, namely, who is competent to decide whether a ques-
tion falls exclusively within the jurisdiction of the United King-
dom. The relevant passage in the declaration of the Foreign
Secretary ran as follows: " On certain matters, international
law recognises that the authority of the State is supreme. When
once it is determined (italics are the writer's) that the subject
matter of the dispute falls within the category of cases where this
is so, there is no scope for the exercise of the jurisdiction of
an international tribunal." The official memorandum on the
Optional Clause did nothing to shed light on the meaning of the
phrase " when once it is determined." It confined itself to point-
ing out that that reservation was " merely an explicit recognition
of a limitation on the jurisdiction of the Permanent Court which
24 See Observations of His Majesty's Government in Great Britain on the
Programme of Work of the Committee on Arbitration and Security of the
Preparatory Commission for the Disarmament Conference, Official Journal
of the League of Nations, August I928, pp. 694-704. In this State Paper
the British Government gave as one of the reasons of its reluctance to under-
take the obligations of compulsory arbitration the fact that " obligations
which it may be willing to accept towards one State it may not be willing
to accept towards another."
25 There is another possible complication in this reservation, namely, the
question as to the legal position in cases in which a dispute affects both a
member of the Empire and a foreign State. However, the contingency is
highly hypothetical, and need not therefore be discussed in detail.
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE 149
results from international law itself "-and that " it is merely

the application in this connection of the principle that, subject to
any relevant treaty stipulations, a State is entitled to regulate
as it pleases matters which fall exclusively within the domain of
its national sovereignty." In the course of the debate in Parlia-
ment on the ratification of the signature the question was asked,
in the form of an interruption, who is to be the judge whether
a dispute is about a matter which falls within the domestic jurisdic-
tion of a State,26 but although an answer was promised to this ques-
tion it was never given.27 It is probable that there were weighty
political reasons both for introducing this reservation and for not
removing the obtaining uncertainty on this matter, but the form
of the reservation and the subsequent reticence raise serious
questions. For, clearly, unless it was meant to have the effect
of preventing the Court from deciding on the question of its
jurisdiction in these matters, it is difficult to see what is the
object of this reservation. It is not necessary to embody in
reservations rules which are " merely an explicit recognition "
of principles " which result from international law itself." As,
by virtue of Article 38 of the Statute, the Permanent Court
must, in the absence of a contrary agreement, apply rules of
international law, any matter which by virtue of international
law is within the exclusive jurisdiction of a State must be ad-
judged by the Permanent Court to be within the exclusive
jurisdiction of that State, and any claim contrary to that ex-
clusive right must be rejected. This rejection may take either
the form of a pronouncement that the Court has no jurisdiction
to give effect to the demand of the plaintiff State and that the
claim cannot, therefore, be admitted, or of a judgment simply
dismissing the claim. The result is, of course, the same what-
ever form the pronouncement of the Court may take, although
from the point of view of the State against which the claim is put
forward it is preferable that its position should be vindicated
rather by a material judgment dismissing the claim than by a
formal statement that the Court has no jurisdiction. The posi-
tion is here entirely different from that envisaged in paragraph
8 of Article I5 of the Covenant which excludes matters of
26 Parliamentary Debates, House of Comnmons, Official Report, Monday,
January 27th, I930, column 659.
27 On September igth, i929, T'he Times, in a despatch from Geneva, in-
formed its readers that it may be regarded as substantially agreed between
them (Great Britain and the Dominions) that cases juidged by the signatories
to be of domestic interest will be excluded from the compulsory jurisdiction
of the Hague Court. No one of the numerous correspondents who con-
tributed to that journal letters on the Optional Clause raised his voice in
interrogation.
150 ECONOMICA [JUNE
domestic jurisdiction from the purview of the recommendations

of the Council. The latter is not a judicial tribunal, and its
recommendations may seek to modify existing legal rights. It is,
therefore, reasonable on the part of States to consider that the
Council should refrain from making a political recommendation
on a matter in which, according to international law, they are
free to act without external interference. But the Permanent
Court is a strictly judicial tribunal, and the exercise by it of
jurisdiction over a matter which according to international law
is exclusively within the domestic jurisdiction of the defendant
State must necessarily lead to an authoritative affirmation of
the exclusive rights of that State.
If, then-it must be asked-the reservation does not add any-
thing to the rights and security of the State against whose
reserved domain a claim is put forward, what are the possible
reasons and legal implications of its forming part of the declara-
tion of acceptance? Is it possible that it should have no legal
meaning at all? An affirmative answer to this question must
not be lightly given. It is a canon of interpretation that pro-
visions of a treatv should be interpreted so as to yield a meaning,
and that, so far as possible, any interpretation should be avoided
which holds that when using a term or a phrase the parties
did not mean anything in particular. In the present case there
are special reasons for not disregarding this rule of interpreta-
tion. It is a matter of common knowledge that the reservation
was inserted at the instance of certain Dominions which were
apprehensive lest the obligatory jurisdiction of the Court should
interfere with their exclusive right of framing their immigra-
tion laws and which wished to provide for a check upon the
possible encroachments of the Permanent Court in these matters.
Nothing will illustrate this position of these Dominions better
than the following extract from a despatch sent in 1925 by
the Government of New Zealand to the Home Government on the
subject of the compulsory jurisdiction of the Court in regard
to the question of immigration:
" Whatever the jurists of Geneva may think, the law
advisers of the Crown in New Zealand believe that there is
grave danger that the Court of International Justice at The
Hague, consisting mainly of foreigners, might hold that the
New Zealand law is contrary to the comity of nations, and that
the New Zealand system is not a question of merely domestic
jurisdiction. And our law advisers believe that, if a question
arose for determination under the Protocol, the Permanent
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE 15I
Court might decide: firstly, that the right of foreigners to

reside in New Zealand was not a matter exclusively within the
jurisdiction of New Zealand, and secondly, that as a matter
of international law we must admit them or reduce the restric-
tions on their admission."28
Only cogent legal considerations can be allowed to prevail over
the intention of the parties as expressed in this reservation. It
would be difficult for Great Britain to argue, should an occasion
arise for such argument, that the reservation was inserted as a
concession to an obviously provincial and uninstructed view on the
character of the Permanent Court and the nature of international
law administered by it.
It is, therefore, necessary to consider the alternative solution,
namely, that the legal effect of this reservation is to secure
for the United Kingdom the right to determine unilaterally
whether the matter of dispute is by international law within its
exclusive jurisdiction. Such a solution, far from constituting
a departure from the practice of the treaties of obligatory arbitra-
tion29 since the beginning of this century, would be in keeping
with the general view hitherto prevailing as to the applicability
of restrictive clauses of an indefinite and comprehensive
nature.30 Before the Statute of the Permanent Court of Inter-
national Justice came into existence, it was axiomatic that unless
there was a provision to the contrary it was for the contracting
parties to decide whether reservations of this nature should be
28 Cmd. 2458, No. 8.
29 In the pre-war arbitration treaties the decision as to the applicability
of the reservations was almost invariably left to the Contracting Parties.
Even Article 53 of the Hague Convention of I907 for the Pacific Settlement
of International Disputes, which provided for the establishment of the
special agreement by the Permanent Court in case the parties should dis-
agree, contained the proviso that recourse cannot be had to the, Court
" if the other Party declares that in its opinion the dispute does not belong
to the category of disputes which can be submitted to compulsory arbitra-
tion." Treaties which entrusted an impartial agency with the determination of
the applicability of reservation were so few as to constitute a mere exception.
See, for instance, Article I of the Treaty between Italy and Peru of April i8th,
I905 (Martens, N.R.G., 2nd ser., vol. XXXIV, p. 320). Some treaties, like
that between Italy and Sweden (Article 3), of April I3th, i9ii (ibid., 3rd
ser., vol. V, p. 359), conferred that power only in regard to questions of
secondary importance, while reserving for the parties the right of decision
in questions of vital interests, independence, and honour. In recent years,
however, there is a distinct tendency to confer upon an arbitral tribunal
the right of interpreting the cornpromis. See, for instance, the treaties of
Germany with Switzerland and the Netherlands, referred to above.
30 See on this subject Annuaire de l'Institut de Droit International, vol.
XXXIII (2) (I927), pp. 709 et seq., and 740 et seq. (Report of Borel and
Politis) and Huber, ibid., p. 76s; Morgenthau, Die internationale Rechts-
pflege ihr Wesen und Grenzen (I929) pp. 90, 9I, note; Wehberg in
American Journal of International Law, VII (I913), pp. 3I0, 3II; Ch. de
Visscher in Revue de droit international et de legislature comparee, 3rd ser.,
vol. IX, (1928), p. 40.
152 ECONOMICA [JUNE
invoked or not. The discussions on obligatory arbitration at the

Second Hague Conference leave no doubt that that was the
opinion of governments and international lawyers of the time.3
It was of the essence of the usual reservations of vital interests,
honour, or independence that the determination of their applic-
ability should be left to the free decision of the parties and,
in view of their highly subjective character, it is doubtful whether
any court acting judicially would be in the position to pronounce
on the matter. The reservation as to matters of domestic juris-
diction belongs to the same category of indefinite reservations,
and there is little doubt that-to mention a series of important
recent instances-in the treaties of arbitration concluded in the
course of the year I929 by the United States with the majority
of European States that reservation leaves it entirely to the
discretion of the contracting parties to determine whether a
matter is one of domestic jurisdiction.32 It would be difficult to
maintain that either any general principles of present day inter-
national law or the history of international arbitration expressly
exclude the right of a State to determine unilaterally whether a
general reservation is applicable or not.
Can it not be said that the position has now been radically
altered and the doubts removed by the last paragraph of Article
36 of the Statute which provides expressly that " in the event
of a dispute as to whether the Court has jurisdiction, the matter
shall be settled by the decision of the Court "? However, strong
as this argument is, it is open to grave objections, and this for
the following reasons:
(a) The Optional Clause, as attached to the Protocol of Signa-
ture and as referred to in the British declaration of acceptance,
refers only to the second paragraph of Article 36, without referring
to the last paragraph. It could, of course, be maintained that
" Article 36, Paragraph 2 " means the whole Article 36 less
paragraph one, but this is a debatable point.
31 See, for instance, the remarks of Mr. Choate on Article II of the

American draft before the first sub-committee of the first commission of the
Second Hague Conference: " Article II provides specifically and expressly
what might have been necessarily implied without any such expression, that
it shall be for each of the Powers concerned to decide for itself whether its
vital interests, or independence, or honour are involved." Actes et Docu-
ments, vol. II, p. 267. See also Article 5 of the draft arbitration treaty,
dated March 5th, i896, submitted by Lord Salisbury to Mr. Olney, for what
is perhaps the earliest expression of this view (Moore, op. cit., vol. I, p. 966).
32 This is an additional reason why the writer is reluctant to attach decisive
importance to the argument that this reservation was inserted merely ex
abundanti cautela. In the present case the content of the clause inserted
bristles with implications, legal and others, which make it difficult to admit
that the words used are innocuous.
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE 153
(b) It may be a matter of controversy whether the last para-

graph of Article 36 is in any case binding upon every member of
the Court like every other provision of the Statute. For
it might be argued that the last paragraph of Article 36 has no
independent life of its own, that its binding force extends no
farther than the scope of the obligation undertaken in the three
preceding paragraphs of that Article, and that if there is no
obligation to arbitrate-or to the extent that there is no obliga-
tion-the last paragraph does not apply.
(c) For the same reason it could be maintained that, even
if the last paragraph of Article 36 is in principle binding upon
every member of the League of Nations, its binding force can
still be limited by reservations, and that such a reservation is
contained in the British declaration of acceptance, which other-
wise would be quite meaningless in this particular respect.33
33 It might be argued that in addition to the two possibilities here sug-
gested-namely, either that the reservation is meaningless or that it has
the result that the interested partv is entitled to determine the Court's
jurisdiction-there is a third possibility, i.e., of the Court determining whether
a matter is or is not according to international law within the exclusive
jurisdiction of the defendant State and, in the first alternative, refusing to
proceed with the matter. However, it is submitted that any decision as to
jurisdiction constitutes in such cases a decision on the merits. When the
Court is confronted with an action arising out of the enactment of an immi-
gration law in New Zealand, it may either determine that the enactment
of that particular law is a matter which, according to international law, is
within the exclusive jurisdiction of New Zealand and dismiss the claim or
find that in view of treaty or other international obligations New Zealand
was not at liberty to enact the law in question, that the matter was not there-
fore within her exclusive jurisdiction, and that the plaintiff State must
succeed. Tertium non datur. Whenever the Court declares itself compe-
tent, this necessarily means a judgment on the merits.
The writer is aware that the view put forward in the text finds no support
in the relevant pronouncement of the Permanent Court, namely, in its
fourth Advisory Opinion. But it is submitted that in so far as that Opinion
laid down that according to a preliminarv judgment a question may prima
facie be one regulated by international law but that a judgment on the
merits may reveal that the question is one of exclusive domestic jurisdiction,
it is of more theoretical than practical value. The argument that although
the Court may declare itself competent in a matter claimed by the defendant
State to be within its exclusive jurisdiction, but that this need not neces-
sarily result in a final judgment in favour of the plaintiff State is to a large
extent fallacious. In general there is no matter normallv belonging to the
sphere of exclusive domestic jurisdiction which cannot become the object
of an international obligation. Thus even the right to determine the form
of government or to select the head of the State may be regulated by a
treaty. As, therefore, there is nothing of which it could be predicted in
advance that it belongs to the sphere of exclusive jurisdiction, the only, task
of the Court is to decide whether in the particular case there exists a con-
crete rule of international law limiting the State's freedom of action. If,
for instance, an immigration law of a State is made the subject of judicial
proceedings on the ground that that law is in violation of a treaty obliga-
tion, and if the defendant State raises the plea of domestic jurisdiction,
it cannot be correctly maintained that the Court may find provisionally that
the treaty is relevant to the immigration law which is therefore not within
the domestic jurisdiction of their State, but that a judgment on the merits
may arrive at the conclusion that although the treaty is in principle
C
154 ECONOMICA [JUNE
This is the reason why this particular reservation may be

claimed to affect the applicability of the last paragraph of
Article 36, while other reservations do not. The other reserva-
tions have a specific content while the one relating to matters of
domestic jurisdiction only reiterates an uncontested principle
of international law, and the limitation of the power of the Court
to decide as to its jurisdiction mav, therefore, not without a show
of reason, be claimed as its sole raison d'etre.
These arguments have been adduced here, not because we
believe them to be sound law, but in order to draw attention to
the possibility of their being put forward and creating un-
certainty. In the writer's opinion, the Court would overrule
them on the ground that the last paragraph of Article 36 is an
essential part, not only of that Article, but of every scheme of
truly obligatory jurisdiction; that to deprive the Court of
the power to determine its scope of competence, and to leave
that right to the interested parties, is to deny the essence of the
obligation to arbitrate; that a party signing the Optional Clause
runs, apart from other risks, the risk that another State may
bring before the Court any dispute on the ground that it falls
within one of the four categories enumerated therein3"; and that
the idea of a highest ilnternational tribunal implies, as an essen-
tial condition of its proper functioning, the confidence on the
part of the States that it will not become guilty either of a usur-
pation of powers or of a disregard of international law.35 How-
relevant to the immigration law in question it does not in fact prohibit it.
For that would mean that the matter is within the domestic jurisdiction of
the defendant State, and that the relevancy as provisionally assumed did not
in fact exist. It would mean that the provisional judgment was based on a
general impression not substantiated by the investigation resulting in the
judgment on the merits.
At the risk of some repetition it is submitted: (a) In principle every ques-
tion may be governed by international law, and there is no necessity for a
preliminary judgment to this effect; (b) Any judgment on the question of
jurisdiction is in cases of this description tantamount to a judgment on the
merits. Thus no satisfactory interpretation of the reservation in question
can be derived from the possibility of the Permanent Court rendering merely
formal judgments as to jurisdiction without embarking upon the considera-
tion of the question on the merits.
34 It is believed that every conceivable dispute falls within one of the
four categories except when the plaintiff State affirms openly that its claim
is contrary to the existing law-in which case there would be no point in
bringing it before the Court which has to decide according to law.
35 This applies not only to the signature of the Optional Clause, but even
to the most specific article of a technical international convention conferring
upon the Court the power to interpret its provisions. Theoretically there
is nothing to prevent a State from availing itself of that article for the
purpose of citing before the Court another State on a matter entirely
unconnected with the provision in question. The defendant State could,
of course, challenge the jurisdiction of the Court which would then decide
in accordance with the last paragraph of Article 36. That paragraph applies
not only to the jurisdiction of the Court under the Optional Clause, but
1930] BRITISH RESERVATIONS To THE OPTIONAL CLAUSE 155
ever, in view of what has been said above, could not the very
competence -of the Court to overrule this particular objection to
its competence be questioned by a government determined to
remain judge in its own cause?-not only by any future British
government, but by a government of any signatory to the
Optional Clause who, in consequence of the operation of the
principle of material reciprocity, may avail itself of this reserva-
tion. For the fact remains that the question is a disputed one,
and that the controversy relates to a reservation which may cover
the widest possible range of disputes. As mentioned, in respect
of its wide and indeterminate scope, this reservation is only a
variation of the time-honoured reservation of independence and
vital interests.3' It may cover every act of legislative, judicial,
and administrative authorities within the territory of the State.
(d) The Suspensive Reservation on Bringing Disputes before
the Council of the League of Nations.-The object of the reser-
vation is to enable Great Britain to suspend, by means of bring-
ing the dispute before the Council, any action brought against
her before the Permanent Court. (Apparently the reservation
covers also the case of a State bringing before the Court an
action which is already before the Council; the effect of the
reservation is here to extend the competence of the Council for
one year in the first instance.) As this postponement of judicial
settlement is limited to a period of one year and as unanimity is
required for any further postponement, it would appear that-
apart from the fact that many other States went beyond the
British example37 to the length of not adopting any time limit
at all38-the disadvantages, if any, of this reservation are not
under any other international engagement conferring jurisdiction upon the
Court. See on this last question Fachiri, The Permanent Court of Inter-
national Justice (1925), pp. 84-86.
36 See on this matter Rousseau, La comp6tence de la Societe des Nations
dans le reglement des conflits internationaux (1927), pp. 202-205, and, in
particular, Verzijl in Revue de droit international et de la legislation com-
parde, 3rd ser., vol. VI (1925), pp. 747-750.
37 The above statement should perhaps be qualified to the extent of stat-
ing that although the British reservation constituted the first effective
example, it was France who first introduced it in her unratified signature
of October 2nd, 1924. The reservation was to the effect that if one of the
Parties to the dispute summons the other before the Council of the League
in conformity with Article i5 of the Covenant, during the attempt to settle
the dispute by conciliation, neither Party may have recourse to the Court.
38 The French declaration of acceptance was as follows:
" On behalf of the Government of the French Republic and subject to
ratification, I recognise as compulsory ipso facto and without special
agreement, in relation to any other Member or State accepting the same
obligation, the jurisdiction of the Court, in conformity with Article 36,
paragraph 2 of the Statute of the Court, for a period of five years, in any
disputes arising after the ratification, of the present declaration with
regard to situations and facts subsequent to this ratification, and which
156 ECONOMICA [JUNE
great. There are, however, weighty objections, both of practice

and of general principle, to this reservation:
(i) One of the considerations underlying this reservation is
that the Council of the League is the proper body to be entrusted
with the preliminary function of conciliation and, generally, of
pacific settlement, whenever a State deems such a course to be
in its interest. The qualifications and limitations of the Council
acting in that capacity are discussed below. What is submitted
here is that the view, according to which the Council of the
League is the proper body to be invoked in the first instance
in regard to any dispute which may arise between two members
of the League, is essentially retrogressive. It is retrogressive
because it conceives of disputes between nations as of the typical
manifestation of their reciprocal relations and of the Council of
the League of Nations as of an agency called upon to devote most
of its time and energies to the work of settling disputes. The
primary task of the executive and directive organ of the League
of Nations must be the work of systematic and constructive
work in the field of international co-operation and government.
Such work it has hitherto been able to perform to a very limited
extent only because its main preoccupation has been in the field
of settling disputes. Thus, for instance, the cause of the failure
of the League of Nations to develop fully the possibilities of
Article 24 of the Covenant relating to the centralisation of
international technical government is largely due to the pre-
occupation of the Council with disputes of minor importance
between the members of the League. Undoubtedly, it has been
this feature which has made its work conspicuous both in
popular psychology and in the opinion of lawyers. However
necessary as its action, undertaken with the view to pre-
venting or stopping an actual outbreak of hostilities, was in
certain grave emergelncies, it is a duty of constructive states-
manship sincerely devoted to the future of the organised com-
munity of nations to ilncrease the Council's opportunities for
could not have been settled by a procedure of conciliation or by the

Council according to the terms of Article 15, paragraph 6 of the Cove-
nant, with reservation as to the case where the parties have agreed or
shall agree to have recourse to another method of settlement by arbitra-
tion.
" This declaration replaces the declaration of October 2nd, I924, which
has now lapsed."
The declarations of other States, like those of Italy, Czechoslovakia, and
others, went even bevond the French reservation inasmuch as, without fixing
a time limit, thev stipulated for the right " to submit the dispute, before
any recourse to the Court, to the Council of the League of Nations."
(Declaration on behalf of the Republic of Czechoslovakia.)
positive action within the sphere of international government,

rather than to hamper that work by entrusting the Council with
the functions of a universal conciliation commission.
(ii) From the point of view of the inherent ability of the
Council to act as a regular agency for settling international
disputes there is, both as a matter of law and experience, little
justification for enlarging the opportunities for its acting in that
capacity. The procedure of conciliation through the agency of
conciliation commissions has received little or no practical appli-
cation, but there are at least two theoretical advantages in that
particular machinery of settling disputes, namely, the absence
of a cumbrous and costly procedure and the prevalence of an
atmosphere of expert knowledge and impartial detachment.
These, however, are not the characteristic features of the con-
ciliation procedure by the Council, whose members are in law and
in fact representatives of their States and their interests; one of
whose most effective weapons has proved to be delay and adjourn-
ment; whose method is necessarily one of political bargaining; and
which, by virtue of its structure and methods, has the tendency
to magnify and to complicate any issue before it. As has been
mentioned, there is one field in which the Council has deve-
loped a spirit of collective responsibility coupled with undoubted
efficiency, namely, in the sphere of suppression of wanton dis-
turbances of the peace, but to generalise that function of a
supreme policeman and to charge the Council with the regular
duty of settling disputes on their merits is not only to distract it
from a field of activities which is more properly its own, but
also to expose it to grave risk of failure.39 It was stated in
the declaration accompanying the signature and elsewhere that
only important " political " matters will thus be submitted
before the Council. However, it is submitted that phrases like
that used in the Official Memorandum and referring to disputes
which, " though falling within one of the categories defined in
the Optional Clause, are really more of a political than a legal
nature,' are not possessed of any definite meaning.40 Every
dispute about which an action is brought before the Permanent
Court is as a rule " political " inasmuch as it raises important
issues and is the consummation of lengthy and abortive
diplomatic negotiations.
39 The meritorious and useful study of Mr. Conwell-Evans entitled The
League Council in Action (1929) is an example of this tendency to make the
Council of the League a regular agency for settling international disputes.
40 And see p. i6o below on the distinction between legal and political
disputes.
158 ECONOMICA [JUNE
(iii) One of the reasons which seems to have inspired this

reservation is the view, which has gained currency in the last
decade, that as there does not yet exist an effective international
legislature able to modify obsolete rules of law, the unlimited
competence of a Court bound to give judgment in accordance
with strict law, far from removing friction, may prove dan-
gerous to the peace of the world4 ; that it is necessary to provide
a check on unlimited judicial action, and that, in view of the
British Government's determination to accept in principle obliga-
tory judicial settlement, such a check should at least take the
form of suspending the procedure before the Court and of giving
the Council an opportuiity for bringing pressure of reason
to bear upon a State sittinlg obstinately on its alleged
rights. Will the suspension have this effect? Is there
any reason to suppose that the atmosphere of reasonableness
which, it is maintained, is peculiarly within the province of the
Council, will cause the plaintiff State to give up any of its
alleged rights? Is it not to be feared that the original righteous-
ness of the plaintiff State will be stiffened and rendered more
aggressive as the result of the suspicion and the grievance-
real or imaginary-that an attempt is being made to deprive
it of its rights by resorting to political pressure to be exercised
through the Council? Before the law has been ascertained by
the appropriate agency, that is, the Court, there is little
practical vision in the insistence on the necessity for letting
reason prevail through the Council. In the first stages of the
dispute it is law that the parties want. As a matter of fact, in
a great number of cases which have come before the Council
that body itself deemed it necessary to have the legal rights
ascertained before proceeding further with the matter.42
This does not mean that there is no intrinsic value in the
suggestion that a safeguard may be required against the conse-
quences of a judgment rendered in accordance with a rigid rule
of law. But the way to achieve this end lies not in preventing
or postponing the ascertainment of existing rights by a com-
41 See on this point Huber in Zeitschrift fur Vt1kerrecht, XII (1922), p.

I4 and in Annuaire de 1'Institut de Droit International, vol. XXXIII (2)
(1927), pp. 763-764; Hostie in Revue de droit international et de la legislation
cornparee, 3rd ser., vol. IX (I928), pp. 263-28I, 568-587; Brierly, lhe Law of
Nations (I928), p. 189; Sir John Fischer Williams, Chapters on Current
International Law and the League of Nations (1929), pp. 34-35; Morgenthan,
Die internationale Rechtspfiege, ilir Wesen und ihre Grenzen (I929).
42 From the strictly British, as distinguished from the international point
of view, it is difficult to see why it should be left to Great Britain to insist
on checks meant to facilitate a challenge of the existing political status quo.
petent tribunal and in aggravating thereby the original contro-

versy. The proper remedy is the devising of a machinery
through which such judgments of the Court as may prove dan-
gerous to the peace of the world could be rendered inoperative
or their execution suspended by political action of the Council
or the Assembly or both, acting in a legislative or quasi-legis-
lative capacity-possibly at the advice of the Court rendered
independently of its strictly judicial pronouncement. The devis-
ing of such a machinery, which would not be incompatible either
with the judicial function of the Court or with the authority of
its judgments, is admittedly a difficult problem, but it is far
from being insoluble. Its solution could certainly prove a power-
ful factor in overcoming the impasse of the present position of
Article I9 of the Covenant.
There is in the spirit of this reservation, namely, in the wish
to protect this country from unreasonable and aggressive claims,
a vague apprehension of danger, as exhibited in this nervous
quest for security from the law, which it is difficult to compre-
hend. It is not always Great Britain who has been in the past
or will be in the future the defendant.43 She is just as likely
to be the plaintiff and see the justice of her claims delayed
as the result of the very same reservation which she formulated
in order to strengthen her position as defendant. Any nation
may, as against Great Britain (or as against the signatories who
have followed the British example) avail itself of this reservation
not only in regard to matters " which are really political in
character " but in respect, for instance, of any claim for damages
based on an alleged denial of justice.
It may be assumed that it is not intended to have recourse to
this reservation in regard to minor claims, whose political nature
would lie merelv in their vexatious character, in order to
prevent or delay proceedings deemed to be derogatory to the
dignity of this country. That dignity is not necessarily pre-
served by the velntilation of the matter in the forum of the
Council.
43 It is difficult not to gain the impression that the framers of the reserva-
tion visualised Great Britain in the part of the defendant eager to postpone
the jurisdiction of the Court rather than in that of the plaintiff interested
in securing prompt recognition for his just claim. In cases in which
Great Britain is the defendant there are two alternatives: (a) either this
country is assured of the soundness of its legal position-in which case
there will be no inducement to jeopardise the issue bv submitting it to the
Council; or, (b) Great Britain is convinced of the justice of the claim put
forward by her opponent, in which case there seems to be little chance,
from reasons stated above, of making the plaintiff State give up legal rights
in which it believes in all good faith.
i6o ECONOMICA [JUNE
Finally, attention should perhaps be drawn to the un-

intelligible wording of the first part of the reservation. The
sentence " And subject to the condition that His Majesty's
Government reserve the right to require that proceedings in the
Court shall be suspended in respect of any dispute which has
been submitted to and is under consideration by the Council of
the League of Nations, provided that notice to suspend is given
after the dispute has been submitted to the Council and is given
within ten days of the notification of the initiation of the pro-
ceedings in the Court " is not clear at all. Surely, it was not
intended that this right of suspension should be exercised only
in regard to any dispute which has already been submitted to
and is under the consideration of the Council? On the contrary
the tendency seems to have been to reserve the right of bringing
before the Council a matter which has previously been brought
before the Court. The passage as it stands now is so involved
as to be incomprehensible."
(e) "Legal" Disputes.-The observatiolns of this paragraph do
not refer to any reservation expressly attached by the British
Government, but only to the use made by it of the term " legal "
preceding the enumeration of the four classes of disputes appear-
ing in the Optional Clause of Article 36 of the Statute of the
Court. This term, by reason of its confusing and unscientific
character, was deliberately omitted from the first so-called Phil-
limore draft of the Covenant of the League of Nations"; it
re-appeared in Article 36 partly as the result of what may be
described as an accident,46 and partly owing to the insistence
of one member of the Committee of Jurists, appointed in 192o to
draft the Statute of the Court, who urged the view that the omis-
sion of this time-honoured phrase would astound the legal con-
44 Qazere. Does the right to bring a matter before the Council apply to
disputes to be submitted to some other method of settlement as stated in
the first reservation? Apparently not, as such disputes are altogether
exempted from the operation of the declaration of acceptance.
45 See the Interim Report of the Phillimore Committee on Article 3 of the
Phillimore Plan for a League of Nations (R. S. Baker, Woodrow WVilson and
WForld Settlemnent (I922), vol. III, p. 75), from which it appears that although
that article, containing the substance of the Optional Clause, was adapted
from Article 38 of the Hague Convention of I907 for the-Pacific Settlement
of International Disputes, the term " legal " which formed part of Article
38 was omitted.
46 The term " legal " formed part of the original draft of the Committee
of Jurists of 1920 providing for the obligatory jurisdiction of the Court in
the matters enumerated in the Optional Clause. It was inserted as a con-
cession granted in the form of a qualification of an obviously extensive
interpretation of the provisions of the Covenant. This extensive interpre-
tation was rejected by' the Assembly and the Council, but the qualifying
term remained.
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE i6i
science of mankind.47 For reasons, the elaboration of which

lies outside the scope of this memorandum, we believe that the
term " legal " as used in Article 36, far from being in the
nature of a reservation and from qualifying and limiting the
scope of the four classes of disputes enumerated therein, is
merely descriptive.48 But the repeated use by the British Govern-
ment of this term on frequent occasions and in various forms is
likely to create the impression that it is used as a limitation of
the scope of disputes covered by the Optional Clause. Thus the
Official Memorandum on the Signature of the Optional Clause
refers throughout to " legal disputes," " juridical disputes,"
and " justiciable disputes "-in particular to the last.49 It
47 The original draft of the Statute which Lord Phillimore laid before the
Committee, while reproducing the four classes of disputes mentioned in
Article I3 of the Covenant, contained no reference to " legal " disputes.
Baron Descamps, the learned President of the Committee, had taken a lead-
ing part in the deliberations of the Hague Conferences of I899 and I907, and
he found it difficult to discard a notion which was both time-honoured
and generally believed to safeguard an important aspect of State sovereignty.
However, judging from the subsequent discussion before the Committee,
there is reason to believe that the purpose of the proposed qualifying term
was more in the nature of an expression of respect for a phrase which
has become dear to the hearts of lawyers and statesmen, than of the
wish to formulate actual reservations. When another member of the Com-
mittee proposed the oi:iission of the expression " questions of a legal
nature " the sole reason for the President's opposition to this amendment
was that the term played an important part in the Conferences of I899
and 1907, and that " legal conscience and world opinion would be
astonished not to find this term in the Committee's plan." (Procas-Verbaux
of the Proceedings of the Committee, p. 283). That the term " legal "
was not regarded as qualifying in any way the subsequent enumeration may
be seen from the fact that in the Root-Phillimore plan, in which, following
upon the insistence of the President, the term " legal " was included, the
relevant passage ran as follows : " The Permanent Court of International
Justice shall be competent to hear and determine cases between States con-
cerning questions of a legal nature, that is to say (italics are the writer's),
which affect : (a) the interpretation of a treaty," etc. (ibid., p. 547). Little
importance was subsequently attached to the proposed addition, and in the
scheme prepared by the drafting sub-committee the term "1 legal " did not
appear at all (ibid., p. 566) (Article 29 of the Draft). When the draft was
considered by the Committee during the final stages of its work, the Presi-
dent again reverted to this subject. That his insistence upon the retention
of the term was largely calculated to insure continuitv of terminology, may
again be seen from the fact that the wording proposed by him at that final
meeting was : " Between States which are members of the League of
Nations, the Court shall have jurisdiction (and this without any special con-
vention giving it jurisdiction) to hear and determine cases of a legal
nature, that is to say, cases concerning . . ." (ibid., p. 582). This shows
that even with the President, who was most insistent on the subject, that
term did not serve the purpose of qualifying or timiting the enumeration.
" This wording was adopted," it is then stated in the Procgs-Verbaux,
except that the words " that is to sav, cases " were deleted (ibid.). Nothing
is said of the reasons for this fateful omission. Was it due to a misguided
passion for economy in speech?
48 See on this point Fischer Williams, Chapters on Current International
Law and the League of Nations (I929), p. 38.
49 See, for instance, paragraph 6 of the Official Memorandum: "His
Majesty's Government in the UTnited Kingdom believe that the first step
in thus building up barriers against war is to secure the general acceptance
I62 ECONOMICA [JUNE
is submitted that these terms when used in this connection have

no, or no definite, meaning' at all, and that their use is undesir-
able seeing that they convey the impression of a limitation which
does not in fact exist. It is not clear to what disputes the
Official Memorandum refers when it uses the expression " jus-
ticiable disputes." Does it refer to disputes which are capable
of a solution by the application of an existing rule of inter-
national law? Or to disputes of minor importance as distin-
guished from political disputes involving grave issues? Or to
disputes in which the plaintiff State puts forward its demand in
the form of a legal proposition? Or does it refer to disputes in
which the application of legal rules is likely to yield results com-
patible with justice and the progress of international relations?
The term "legal" has been applied in the last thirty years in each
of these meanings. Baffled by the impasse into which its use
has led them, some international lawyers believe that, although
it mav be theoretically correct, its practical importance is neg-
ligible others express the view that, although difficult to estab-
lish and to maintain as a matter of theory, it may render useful
service in practice. As shown by experience, the term is
untenable in theory and harmful in practice. It has served to
perpetuate the false idea that there are international disputes
inherently incapable of judicial settlement, and to give emphasis
to that aspect of the doctrine of sovereignty which gives to the
State the right to decide for itself what the law is. In the last
thirty years, so far as the use of legal terms may have this
effect, it has proved a powerful obstacle in the way of establish-
ing a working system of obligatory arbitration. The time has
now passed when it was necessary to smooth the path of obli-
gatory judicial settlement by means of re-assuring statements
implying that there is a large residuum of cases left behind the
" justiciable " disputes. With the acceptance of the principle
of obligatory judicial settlement there is no reason for retaining
a mischievous term which more than anything else has been the
embodiment of the negation of the supremacy of law in the inter-
national sphere. It would be unfortunate and inaccurate if
official countenance were to be given to the opinion that the
meaning of the British signature and of subsequent declarations
is that although a dispute may fall within one of the four cate-
gories of Article 36 it nevertheless will not fall within the scope
of the Optional Clause if it is not a legal dispute.
of a system under which justiciable disputes will be settled by the operation

of the Iaw."
1930] BRITISH RESERVATIONS To THE OPTIONAL CLAUSE I63
III
THE OMITTED RESERVATION AS TO THE LAWS OF WAR ON SEA
The possible effects in the international sphere of the omission

of the reservation as to Prize Law and its bearing upon the
problem of reservations in general appear to the writer to justify
a discussion in this article of a reservation which the Govern-
ment of this country deliberately refrained from including within
the scope of its signature. In addition, the question of the
reservation as to Prize Law figured most prominently in the
public discussion preceding the ratification of the signature
and in the Official Memorandum on the Optional Clause, and
the relevant legal argument put forward in the latter is of such
a nature as to call for an examination of its premises.
In I924, when the British Government, in connection with the
so-called Geneva Protocol of September of that year, offered
to submit future disputes to the compulsory jurisdiction of the
Permanent Court, it made an express reservation to the effect
that disputes arising out of warlike operations undertaken bv the
British Empire in support of the League should not be referred
to the Court. In 1929, relying largely on the change in the
legal position believed to have been effected by the Treaty of
Paris for the Renunciation of War, the British Government
refused to recognise the continued necessity for that reservation.
This attitude was defended in the Official Memorandum on the
Optional Clause on the ground that in view of the legal position
created by the obligations of the Covenant there is no likelihood
of the lawfulness of British belligerent action being effectively
challenged by other signatories to the Optional Clause.
It was pointed out in the Official Memorandum that if this
country were engaged in belligerent action, in fulfilment of
Article I6 of the Covenant, against a Covenant-breaking State,
"so far from the other members of the League being in the
position of neutrals with a right to trade with our enemy, which
might conflict with our belligerent rights and thus produce a
justiciable dispute, they would be bound under that article to
sever all relations with him; they could neither trade direct with
him nor allow their territories to be used for the passage of
commerce between him and any other States." The passage
continues as follows: " This being so, the conditions which
might produce a justiciable dispute between this country as a
belligerent and another Member of the League as a neutral would
not exist; either the other Members of the League would fulfill
I64 ECONOMICA [JUNE
their obligations under Article i6, in which case we should not

require to effect any interference with their commerce, or if they
did not, and such interference on our part therefore became
necessary, they would have no ground on which to protest against
our action, since any protest must be based on a claim to trade
with the enemy, which would be inconsistent with their obliga-
tions under the Covenant. In other words, as between Members
of the League, there can be no neutral rights, because there can
be no new neutrals."50 It may be doubted whether the above
view is an accurate statement of the actual legal position. The
very opposite of the official contention seems to be the case. If
a member of the League resorts to war in alleged disregard of its
obligations under the Covenant and if Great Britain decides to
treat such alleged breach as an act of war to be answered by
belligerent action in the enforcement of the Covenant, it is in law
possible for a number of members of the League to remain
neutral and to claim the rights of neutrality. This may happen
in all cases in which those States either are of the opinion
that no breach of the Covenant has been committed and that
there is no occasion for belligerent action, or in which they
go to the length of maintaining that Great Britain is enforcing
Article i6 against a State which is in fact the attacked party
and which they may wish to support by applying sanctions in
the opposite direction. It is now generally agreed that this is
the correct interpretation of the Covenant, and that the applica-
tion of sanctions, far from being a matter for an authoritative
decision of the Council binding upon all members of the League,
is a question left to the free appreciation of the several members
of the League.5" The attitude taken up by one of them in
no way binds the other. The Permanent Court has no juris-
diction to decide whether the situation calls for the application
of Article i6. Such a right will perhaps be conferred upon it
in the future, and then its decision might or might not be in
favour of British belligerent action. The same considerations
apply to the case in which Great Britain should deem herself
attacked in violation of the provisions of the Covenant. Other
States may be of a different opinion, and if they do not, as the
50 Ibid., p. io.
51 The whole question of neutrality in connection with Article I6 of the
Covenant is treated with admirable luciditv in ?? 292a and 292b of Oppen-
heim's International Law, vol. II (1926), 4th edition, by Dr. McNair in the
Section on Neutrality and the League of Nations, added by the editor. See
also Schucking und Wehberg, Die Satzung des Volkerbundes, 2nd edition
(I924), pp. 6oo-636, 667-668, and the paper by Professor A. Pearce Higgins on
The British Acceptance of Compulsory Arbitration under the Optional
Clause and its Implications (I929), Addendum.
I930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE i65
result, apply sanctions against Great Britain, they may at least

wish to remain neutral.
There must also be taken into account the position
of States which are not members of the League, but which
are mentioned in the Annex to the Covenant and which
may therefore become co-signatories to the Optional Clause.
Thus Brazil, who, by virtue of the terms of her signature
in 1921, is now bound bv the Optional Clause, 2 may challenge
the legitimacy of British action before the Court.53 The United
States are potentially in the same position. The probability of
that country signing the Optional Clause is at present remote,
but it is at liberty to do so at any time, and it would be rash
to prophesy that it will not adopt this course whenever the con-
comitant disadvantages and apprehension are likely to be out-
weighed by tangible advantages. Such a contingency might
arise in a war to which Great Britain is a party and in which
the United States are neutral. Would not the United States
be in a position to sign the Optional Clause in order to have
the validity of British belligerent action tested before the Perma-
nent Court? (There is a formal flaw in the machinery of
signing the Optional Clause which may work in an unfair man-
ner: Great Britain will be bound by her signature as from I930
to I940, but any other State which now refuses to sign the
Optional Clause may do it at any moment convenient for it,
with the avowed intention of compelling Great Britain to appear
before the Court in an action in which that State hopes to be
successful.)
As the Covenant of the League cannot be adduced in support
of the view as to the abolition of the traditional conception of
neutrality, how far can this view be supported by reference to
the Treaty for the Renunciation of War? It is submitted that,
while the reference to the Treaty may be relevant in support of
the major issue of the necessity of all-inclusive judicial settlement
of international controversies, it has no legal bearing upon the
attitude of neutrality on the part of its signatories. There is
no legal duty-according to the United States there is even no
moral obligation-upon the signatories of the Treaty to take
belligerent action or even to order, sanction, or facilitate the
52 On November ist, 19-1, Brazil ratified the Optional Clause subject to

the suspensive condition of the acceptance of the Clause by two at least
of the Powers permanently represented in the Council.
53 The reader will note the interesting situation created by the fact that
the tertns of the British signature compel certain States to submit to the
jurisdiction of the Council of the League of which they are not niembers.
I66 ECONOMICA [JUNE
withholding of supplies from the State which has broken the

Treaty. Even if the Treaty were to be strengthened by a
machinery of sanctions identical with that of Article i6 of the
Covenant-a development which is not likely to materialise in
the near future-that, as has been shown, would not substan-
tially alter the situation. The same applies to the proposed
amendment of the Covenant in which it is intended, inter alia,
to extend the application of sanctions to the breaches of the
obligation not to resort to war. Only one change, radically
removing the shadow of unreality which niow envelops the Cove-
nant and the Treaty for Renunciation of War, would have that
effect, namely, the establishment of the competence of the
highest political or judicial authority of the international com-
munity to determine by a simple or qualified majority in whom
the responsibility for the breach of the Covenant and the Treaty
lies, and to decide, in a manner binding upon all members and
signatories, upon the course of action to be taken. But this is a
vision of the future.
In the light of the above observations one; may feel reluctant
to accept the view put forward in the Official Memorandum that
any future occasion on which the question of application of
Prize Law becomes relevant will, in fact, mean that the
Covenant and the Treaty for Renunciation of War have broken
down, and that " this catastrophe would sweep away the Optional
Clause as well." If this view were correct then, clearly, the
other arguments advanced in the Official Memorandum would
be superfluous.5' However, as shown, this pessimistic view
can hardly recommend itself. The Covenant or the Treaty
for the Renunciation of War may break down in part, without
S4 The satne lack of consistencv is evidenced in the argument that as

questions of Prize Law are covered bv the reservation as to the submission
of disputes to the Council and that as it is intended to bring questions
of this nature before the Council, there is in actual fact no danger of their
being decided by the Court. In so far as this argument is based on
the hope that the procedure before the Council will probably result in the
vindication of the British position, it is open to the charge of undue
optimism. Such a consummation would require unanimitv on the part
of the Council, but should there be such a measure of agreement between
the members of the League as to render probable a unanimous decision of
the Council then it is not likely that British belligerent action- would be
challenged. The very fact of a challenge of the British action would be
a clear indication of the impending disagreement among the members of the
Council and the consequent necessity for bringing the matter before the
Court.
Also if in the event of a catastrophe the Optional Clause will be swept
away, does it matter whether Prize Law is excluded from its operation or
not? Politically the inclusion of this reservation would have had the effect
of removing the most important cause of opposition in this country to the
signature of the Optional Clause.
breaking down as a whole; they may partly break down either

as the result of open defiance of their obligations or of disagree-
ment as to their application. In regard to both, neutrality is
still possible-bona fide neutrality, neutrality for the sake of
commercial profits, or neutrality for fear of entanglements. As
a matter of policy it is doubtful whether a state of mind should
be created in which any partial failure of the machinery for
pacific settlement should be regarded as a breakdown of the best
hopes of mankind henceforth to become submerged in the sea
of general lawlessness, cynicism, and despair. As a matter
of principle, there is little force in an argument justifying the
submission of a category of disputes to obligatory arbitration on
the ground that there will be no occasion for its application or
that, should there be such an occasion, both the obligation and
the Court called upon to give effect to it will be swept away.
From an international, as distinguished from the British,
point of view there is much to be said, as a matter of future
policy, in favour of appending a reservation as to Prize Law-a
reservation which is specific in its nature and of a clearly deter-
minable content, and therefore free from the disadvantages of the
general reservations in the British signature. Both in I924 and
in I929 the British Government expressly deprecated the possi-
bility of the Permanent Court becoming a body for controlling
military operations. However, failing a reservation as to Prize
Law, nothing-barring the suspensive jurisdiction of the Coun-
cil of limited duration-can save it from the danger of having
to perform that function in case of a dispute as to the exercise
of belligerent rights at sea. Should there unfortunately arise
an occasion for the action of the British fleet and for the British
prize court being challenged before the Court, in what position
would that Court be placed? It would have to decide on con-
troversies in regard to which history has shown with convincing
clearness the inherent and insoluble contradictions of a legal
regulation of war. The absence of a concordant practice of
States in these matters would not absolve the Court from
pronouncing a judgment on the merits any more than
it did in the Lotus case. The wide terms of Article
38 of the Statute which empower the Court to decide not only
in accordance with customary international law but also accord-
ing to general principles of law effectively make it impossible
for the Court to pronounce a non liquet. But, in the circum-
stances, its decisions upon these questions must necessarily be a
matter of uncertainty and discretion. In view of the dis-
i68 ECONOMICA [JUNE
crepancies in practice, will it proceed on the basis of the rule,

adopted in the Lotus case, namely, that in the absence of
explicit limitation of freedom of action no rule restricting it can
be presumed and that the measures of the belligerent are there-
fore not contrary to the law? Or will it adopt the principle of
freedom of the sea as the basic rule, and, in the absence of
general agreement as to certain applications of the law of contra-
band and blockade, will it pronounce the action of the belligerent
to be unlawful? There are many other possibilities. It is
assumed here that the Court will survive the catastrophe, and
that it will continue to function as one of the few remnants of a
shattered legal order. To expose it at a time like that to the
necessity of pronouncing on matters in regard to which there is
mostly no recognised law but only a conflict of policies would
mean discrediting this last bulwark of order, in addition to
exposing it to an inglorious end as the result of internal dis-
sension or of the determination of belligerents to disobey its
judgment.
IV
CONCL-USIONS
The Effect of the Reservations on the British Signature and on

the Optional Clause in General
Before summing up the effect of the British reservations a word
should be said on the admissibility of reservations to the Optional
Clause in general. For the opinion has been expressed that as
the Statute of the Court does not explicitly allow reservations,
they are not permissible so that a State acting in disregard of
that implied prohibition runs the risk of the Court ignoring
either the reservation or the signature as a whole.55 There is
little that can be said in support of that opinion. It is true that
the Optional Clause does not provide expressis verbis for the
possibility of reservations being made, but there is no necessity
for any such express provision. As a general rule a State may
qualify any treaty obligation by such reservations as it deems
necessary; treaties of arbitration, as their history shows, cer-
tainly do not constitute an exception in this respect. In addi-
tion, according to paragraph 2 of Article 36, the jurisdiction of the
Court may be accepted in regard to all or any of the classes of
the disputes appearing in the enumeration. This may mean, not
T5 The latter is the view expressed bv Professor Higgins, op. cit., p. 6 and
Professor Brierly, in The Timnes, of October ist, i929.
unreasonably, that a State may not only limit its acceptance to

three or two or one class of disputes, but also that it may restrict
the scope of the obligation in regard to all or any of the four
classes of disputes. In fact, several signatures before I929
contained certain limited reservations. In the compromissory
clauses of special conventions conferring jurisdiction upon the
Permanent Court there is as a rule a reservation to the effect that
there shall be no recourse to proceedings before the Court before
negotiations have taken place, and the Court, far from refusing
to act upon this reservation, in a series of judgments made im-
portant contributions towards eliciting the meaning and the
function of previous negotiations."6 Possibly it might be argued
that sweeping and indefinite reservations might be regarded as
contrary to the very purpose of the Optional Clause and as such
invalidating its signature. As such, for instance, might be
regarded a reservation offending against the fundamental
principle of the Statute of the Court in regard to its right to
determine its own jurisdiction.57
The limitation of the duty of judicial settlement to disputes

arising out of events subsequent to the signature, to the exclusion
of territorial claims and of an indeterminate class of other disputes
falling within that reservation; the possible implications of the
reservation concerning other methods of settlement, in particular
its failure to clarify the position in regard to other arbitration
treaties including their broad reservations; the manner of
exclusion of disputes of domestic jurisdiction, which, by
introducing the question of the decision as to the applicability
of the reservation, threatens to bring the British signature
within the category of pre-war arbitration treaties; the confer-
ment of certain jurisdictional rights tupon the Council of the
League in a mannier prejudicial to the proper functioning of that
body in the wider field of international government-all these
drawbacks arising from the British reservations have
here been discussed at some length. To these possible
disadvantages must be added the unsatisfactory position created
by the omission of the reservation as to Prize Law, a reservation
whose insertion would have been in the interest of the Perma-
56 See, for instance, Judgment No. 2, pp. 13-15, 6I-65, and Jumgment No.
II, pp. 10-12.
57 It will be observed that Article 3 of the Geneva Protocol of 1924,
referring to the Optional Clause, provided for the possibility of " reserva-
tions compatible with that clause."
170 ECONOMICA [JUNE
nent Court itself. The imperfections of the denunciation clause,

the doubts raised by the question as to the admissibility of reser-
vations, and the undue emphasis laid upon the term " legal "
preceding the enumeration of the four classes of disputes covered
by the Optional Clause, are additional reasons for viewing with
apprehension the uncertainty created by the British reservations,
which, in consequence of the operations of the principle of
material reciprocity, are automatically extended, so far as Great
Britain is concerned, to all States signing the Optional Clause.
The effect of these reservations on the institution of the
Optional Clause as a whole is obvious. The Optional Clause,
which is the most comprehensive multilateral arbitration con-
vention in existence, constitutes a decisive advance upon previous
general arbitration treaties not onlv by virtue of the scope of dis-
putes included within the sphere of compulsory arbitration-the
range of disputes comprised within the four categories of disputes
of Article 36 is practically and theoretically almost unlimited-
but also as the result of the absence of the traditional reservations
encountered in other general arbitration treaties. Therein,
namely, in the absence of restrictive clauses which not only limit
the obligation, but also, by introducing an element of uncertainty
and doubt, defeat the very object of obligatory arbitration, lies
its real strength. The signatures of the Clause which were rati-
fied prior to September I929 did not contain any reservations
except the formal reservation of reciprocity, and the few reserva-
tions as to past disputes and disputes in regard to which the
parties have agreed to have recourse to some other method of
pacific settlement. To the extent to which the British declara-
tion of acceptanice has saddled the Optional Clause with an ele-
ment of uncertainty and conjecture it has undermined the
Optional Clause itself. Any shortcomings from this point of
view of the British acceptance are not limited to the British
signature. The British formula was generally followed by other
governments which signed the Optional Clause last September.
Some of them, by subtle omissions, went beyond the British
reservations. Thus, as we have seen, Italy, France, and several
other States, while reserving the right to submit a dispute to the
Council, omitted to lay down the time limit during which this
right of suspension may be exercised and thus largely nullified
the effects of their signatures. It may be said, without indulg-
ing in undue generalisation, that the history of the Optional
Clause may so far be divided into two periods; one, prior to the
British acceptance, in which it preserved the simplicity of a
1930] BRITISH RESERVATIONS TO THE OPTIONAL CLAUSE 17I
straightforward obligation, with all its concomitant advantages

as an instrument for preserving the peace of the world; the
other, largely inaugurated by the British acceptance, in which
its meaning, like that of typical pre-war arbitration treaties, has
become the object of uncertainty and discussion.
These are the reasons why the form of the British signature
is open to criticism. The value of treaties of obligatory
arbitration consists not so much in the actual submission
of cases to international courts as in the general moral
and political result of the provisions of these treaties
-the Permanent Court has not so far rendered a single
judgment under the terms of the Optional Clause-in the fact
that they furnish evidence of the will of the contracting parties
to substitute the reign of law for the different manifestations of
force and that they create and foster an atmosphere of security
and goodwill. These advantages are seriously impaired by the
inclusion of reservations of an indeterminate nature reminiscent
of a period when arbitration treaties served the purpose of con-
cealing the true attitude of governments inimical to obligatory
judicial settlement. It may be assumed with confidence that
no British Government will ever make unfair use of the ambigui-
ties of the reservations in order to evade its obligations. Justice
compels us to make a similar assumption in regard to other
nations both in their relations with Great Britain and in their
reciprocal relations in respect of the reservations accepted fol-
lowing upon the British example. But there is a disadvantage
in an arbitration convention in which comparative certainty fol-
lowing upon a clear-cut obligation must give way to assumptions
and hopes. Although the Optional Clause has now, as the
result of a lead given by Great Britain, gained powerful
adherents, its authority as a general obligation of straightforward
simplicity has been considerably weakened.
The writer is reluctant to conclude this article without a note
of explanation as to the nature of his criticism. The article is
concerned with the British reservations, and not with the mean-
ing and the value of. the British signature as a whole. It is
concerned with the elucidation of the implications of a number
of limitations upon a definite obligation, and it may therefore
have created the impression of being merely negative and pole-
mical. This certainly has not been the intention of the writer.
The drawbacks of the British acceptance do not materially alter
the fact that, as said at the beginning of this article, the signa-
ture of the Optional Clause by this country is one of the most
172 ECONOMICA [JUNE
important events in the history of obligatory arbitration. It

marks so great and radical an advance upon the provisions of the
Covenant of the League, and indeed upon any other arbitration
commitment hitherto undertaken by this or any other country
in a similar position of power, that the British reservations must
not be allowed to obscure the significance of the signature as
such. Apart from the reservations-whose effect, as we have
seen, consists less in any limitation of the principal obligation
than in the introduction of an element of uncertainty and contro-
versy as to its meaning-the Optional Clause embraces all
possible disputes in which the parties are content to abide by the
existing rules of international law. 'With the British signature,
followed by that of other great and small Powers, obligatory
arbitration may be said to have ceased to be a problem discussed
by academic lawyers and pacifists and to have become
part of the positive law. However, the verv significance
of the act imposes upon the international lawyer the duty
to scrutinise closely its terms. And, it should be added, he may
without impropriety examine them from the point of view of
their approximation to the fulfilment of the duty of States-
which is as yet an imperfect duty in the present stage of inter-
national law-to confer upon other nations the benefit of judicial
settlement not as a concession carefully circumscribed by reser-
vations, but as a recognition of their just claim to have their
contested legal rights ascertained by an independent tribunal
impartially administering the law of nations.

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London School of Economics

The British Reservations to the Optional Clause

The British Reservations to the

The signature by Great Britain, on September igth, i929, of

ment on the question of the Optional Clause1; thirdly, the

" On behalf of His Majesty's Government in the United

1 Misc., No. 12 (1929), Cmd. 3452.

(a) The Reservation of Reciprocity.-The effect of a

3 For the text of these reservations see Publications of the Permanent

formula.4 The reservation restricting the duty to arbitrate to

territorial disputes, and claims arising out of the operations of

draftsmen, led by a misguided passion for juristic definition,

14 The Dutch and Belgian reservations, obviously designed to meet the

major difference connected with the status of the territory in

16 See, for instance, the dissenting opinions of Judge Pessoa in Judgments

(d) Reservation of Disputes in regard to which the parties to

Netherland Government which shall at once communicate a duly certified

effect of substituting the jurisdiction of the Permanent Court of

The second main reason which prompted this reservation was

23 This circumstance probablv explains whv several States-like Estonia,

tion treaty in regard to previous signatories and to a binding offer

results from international law itself "-and that " it is merely

domestic jurisdiction from the purview of the recommendations

Court might decide: firstly, that the right of foreigners to

invoked or not. The discussions on obligatory arbitration at the

31 See, for instance, the remarks of Mr. Choate on Article II of the

(b) It may be a matter of controversy whether the last para-

This is the reason why this particular reservation may be

great. There are, however, weighty objections, both of practice

could not have been settled by a procedure of conciliation or by the

positive action within the sphere of international government,

(iii) One of the reasons which seems to have inspired this

41 See on this point Huber in Zeitschrift fur Vt1kerrecht, XII (1922), p.

petent tribunal and in aggravating thereby the original contro-

Finally, attention should perhaps be drawn to the un-

science of mankind.47 For reasons, the elaboration of which

is submitted that these terms when used in this connection have

of a system under which justiciable disputes will be settled by the operation

THE OMITTED RESERVATION AS TO THE LAWS OF WAR ON SEA

The possible effects in the international sphere of the omission

their obligations under Article i6, in which case we should not

result, apply sanctions against Great Britain, they may at least

52 On November ist, 19-1, Brazil ratified the Optional Clause subject to

withholding of supplies from the State which has broken the

S4 The satne lack of consistencv is evidenced in the argument that as

breaking down as a whole; they may partly break down either

crepancies in practice, will it proceed on the basis of the rule,

The Effect of the Reservations on the British Signature and on

unreasonably, that a State may not only limit its acceptance to

The limitation of the duty of judicial settlement to disputes

nent Court itself. The imperfections of the denunciation clause,

straightforward obligation, with all its concomitant advantages

important events in the history of obligatory arbitration. It

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