International Court of Justice,
Optional Clause
Malgosia Fitzmaurice
Content type: Encyclopedia entries
Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: February 2021
Subject(s):
International organizations, practice and procedure — Jurisdiction
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
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A. Meaning of the Term
1 The term optional clause refers to Art. 36 (2)–(5) Statute of the International Court of
Justice (‘ICJ Statute’; → International Court of Justice [ICJ]). This provides a mechanism,
which enables parties to the Statute to lodge an optional clause declaration under which,
subject to a number of provisos which are described below, they recognize the jurisdiction
of the ICJ as compulsory as between themselves and other parties to the Statute which have
made similar declarations (→ Optional Clause Declarations: International Court of Justice
[ICJ]; → International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State
Applications). As between such parties, no special agreement to subject any particular
→ dispute to the jurisdiction of the Court is required. A plaintiff party, which has lodged
such a declaration, has only to file a case with the Court and submission to the jurisdiction
of the Court by a defendant party which has itself lodged a reciprocal declaration is then
compulsory.
B. Background and History
2 The idea of an international judicial institution, which would exercise compulsory
jurisdiction, was not a novel one. Such an idea was presented at the → Hague Peace
Conferences (1899 and 1907), where many participants wished to establish a → Permanent
Court of Arbitration (PCA) with compulsory jurisdiction. The idea was not implemented but
was not forgotten; and it attracted the support of public opinion and the interest of many
powers.
3 The optional clause system of compulsory jurisdiction under the ICJ Statute is based on
the regime devised under the Statute of the → Permanent Court of International Justice
(PCIJ) by the Advisory Committee of Jurists in 1920 and submitted for approval of the
Assembly of the → League of Nations. The system devised by the League of Nations was to
be one of the elements to safeguard → collective security to give effect to the provisions of
its covenant. It was decided that States which accepted the compulsory jurisdiction
included in Art. 36 (2) Statute of the PCIJ (‘PCIJ Statute’) had to sign a so-called Protocol of
Signature. The PCIJ Statute entered into force on 20 August 1921. The PCIJ held its last
public hearing on 4 December 1939.
4 The → Dumbarton Oaks Conference (1944) proposals were instrumental in elaborating on
the jurisdiction of the then proposed successor to the PCIJ, the ICJ. It was later followed up
by the Committee of Jurists, which convened on 9 April 1945. The majority of States
supported compulsory jurisdiction of the Court. The Union of Soviet Socialist Republics and
the United States were in favour of the scope of the optional clause not exceeding the
clause established by the PCIJ Statute. The final draft of the ICJ Statute was submitted to
the San Francisco Conference. At this conference, the judicial organization of the → United
Nations (UN) was vested in the Commission IV, which was composed of two committees, the
first of which was responsible for the ICJ and the second, for the remaining legal problems.
The final document of the ICJ Statute was officially adopted on 26 June 1945. Currently,
over 70 States have accepted the compulsory jurisdiction of the Court.
C. Voluntary Nature and the Question of Reservations
5 The definition of the optional clause as denoting compulsory jurisdiction does not reflect
its true character, as submission to this jurisdiction is entirely voluntary and affords a great
degree of flexibility. States are free to append reservations of any type to their declarations:
ratione temporis, ratione personae, and ratione materiae, which, though wider than the
express provisions of Art. 36 (3) ICJ Statute, has been strongly affirmed in the
jurisprudence of both the PCIJ, as in the → Phosphates in Morocco Case, and the ICJ, as for
instance in the → Military and Paramilitary Activities in and against Nicaragua Case
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(Nicaragua v United States of America) (‘Nicaragua Case’), the → Fisheries Jurisdiction
Case (Spain v Canada), and the Aerial Incident of 10 August 1999 Case (Pakistan v India)
(→ Aerial Incident Cases before International Courts and Tribunals). States decide upon the
limits of their acceptance of the Court’s jurisdiction. States have the freedom to
reformulate, limit, modify, and terminate their optional clauses. Such reservations
constitute an integral part of the declaration accepting the Court’s jurisdiction. However, in
the Nicaragua Case, the ICJ declared that withdrawal of a declaration of indefinite duration
requires, according to the principle of → good faith (bona fide) and by analogy to the law of
→ treaties, a reasonable time for withdrawal (Nicaragua Case [Jurisdiction and
Admissibility] para. 63; → Treaties, Multilateral, Reservations to; → Treaties, Termination).
One controversial type of reservation is the so-called self-judging (or automatic)
reservation, an example of which was the French reservation accepting the compulsory
jurisdiction of the Court: ‘This Declaration does not apply to differences relating to matters
which are essentially within the national jurisdiction as understood by the Government of
the French Republic’ (Norwegian Loans Case 21) (see also → Connally Reservation). Judge
Lauterpacht, in his separate opinion in the → Norwegian Loans Case, considered the French
reservation as:
an instrument incapable of producing legal effects before this Court and of
establishing its jurisdiction. This is so for the double reason that: (a) it is contrary to
the Statute of the Court; (b) the existence of the obligation being dependent upon
the determination by the Government accepting the Optional Clause, the
Acceptance does not constitute a legal obligation. That Declaration of Acceptance
cannot, accordingly, provide a basis for the jurisdiction of the Court (at 44).
6 He further stated that such a reservation deprives the Court of the possibility of
exercising the powers bestowed upon it by Art. 36 (6) ICJ Statute (see → Competence-
Competence). In Judge Lauterpacht’s view, such a reservation, or part of it, is invalid. The
same views were expressed by Judge Guerrero in his dissenting opinion in the Norwegian
Loans Case. This question was raised with regard to the US reservation in the 1957
→ Interhandel Case, which also contained a domestic jurisdiction reservation. Several
judges, such as Judges Lauterpacht, Spender, and the president of the Court, Judge
Klaestad, raised objections to such reservations. At present, there are 23 declarations in
force with the domestic jurisdiction reservations.
7 The differences between the compulsory jurisdiction of the Court and other types of
jurisdiction are that the former is based on declarations formulated unilaterally
(→ Unilateral Acts of States in International Law), which are not the product of
negotiations, and that the jurisdiction under Art. 36 (2) ICJ Statute allows States to pick and
mix in an abstract and general manner the types of disputes they are willing to submit
before the Court, should the opportunity so arise. In the cases before the ICJ concerning the
legality of the use of force against Yugoslavia (→ Yugoslavia, Cases and Proceedings before
the ICJ), the Court decided that on its terms, Yugoslavia’s declaration ‘accepted the Court’s
jurisdiction ratione temporis in respect only, on the one hand, of disputes arising or which
may arise after the signature of its declaration and, on the other hand, of those concerning
situations or facts subsequent to that signature’ (Legality of Use of Force [Yugoslavia v
Portugal] para. 25; [Yugoslavia v Netherlands] para. 26; [Yugoslavia v Canada] para. 25;
[Yugoslavia v Belgium] para. 26). The Court further stated that in order to determine
whether it had jurisdiction in the case, it was ‘sufficient to decide whether, in terms of the
text of the declaration, the dispute brought before the Court “arose” before or after 25 April
1999, the date on which the declaration was signed’ (ibid). Having decided that the dispute
arose one month before the signing of the declaration, the Court held that consequently, the
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parties’ declarations under Art. 36 (2) ICJ Statute did not constitute a basis on which the
jurisdiction of the Court could prima facie be founded.
D. Reciprocity
8 The principle of → reciprocity is one of the fundamental characteristics of the optional
clause. It is embodied in Art. 36 (2) ICJ Statute, which states that States accept the
compulsory jurisdiction of the Court ‘in relation to any other state accepting the same
obligation’. In the Nicaragua Case, the Court said:
The notion of reciprocity is concerned with the scope and substance of the
commitments entered into, including reservations, and not with the formal
conditions of their creation, duration or extinction. It appears clearly that
reciprocity cannot be invoked in order to excuse departure from the terms of a
State’s own declaration, whatever its scope, limitations or conditions (para. 62).
9 As the Court explained in the Norwegian Loans Case, reciprocity in relation to the
Court’s jurisdiction also meant that it was conferred upon the Court only to the extent to
which the declarations coincided in conferring it. Consequently, the common will of the
parties, which was the basis of the Court’s jurisdiction, existed within the narrower limits
indicated by the French reservation. In accordance with the condition of reciprocity,
Norway was entitled to invoke the French optional clause, which excluded the compulsory
jurisdiction of the Court in relation to disputes understood by France to be essentially
within its national jurisdiction. The reservation of France is a so-called automatic
reservation, the legality of which was questioned, as Art. 36 (6) ICJ Statute explicitly
authorized the Court and not the State to decide whether the Court has jurisdiction in the
event of a dispute. This principle was also emphasized by the Court in, for example, the
Fisheries Jurisdiction Case. A reservation in which the State reserves for itself the right to
determine whether a dispute is essentially within its national jurisdiction may be assessed
as contrary to an express provision of the Statute, and therefore, must be deemed invalid.
10 In the 2014 case → Whaling in the Antarctic (Australia v Japan: New Zealand
Intervening), both parties had made declarations under Art. 36 (2) ICJ Statute, accepting
the Court’s jurisdiction. The parties disagreed on the interpretation of para. (b) of
Australia’s declaration, which excludes from the ICJ’s jurisdiction:
any dispute concerning or relating to the delimitation of maritime zones, including
the territorial sea, the exclusive economic zone and the continental shelf, or arising
out of, concerning, or relating to the exploitation of any disputed area of or adjacent
to any such maritime zone pending its delimitation.
11 Japan argued that the dispute over whaling in the Antarctic fell within the terms of
para. (b) of Australia’s declaration, because it is a dispute ‘arising out of, concerning, or
relating to the exploitation of any disputed area of or adjacent to any such maritime zone
pending its delimitation’ (Whaling in the Antarctic para. 32). This argument was rejected by
Australia, which claimed not to have a delimitation dispute with Japan. It argued that the
reservation applied to ‘exploitation of resources covered by a potential delimitation
arrangement’ and not to any exploitation unrelated to the existence of the delimitation that
occurred in the geographic area in question (para. 34). The dispute was about the Whaling
Programme JARPA II of Japan, not relating to the delimitation. The ICJ accepted the
reasoning of Australia that its reservation should be limited to disputes where there are
overlapping claims relating to maritime areas (para. 41).
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12 On 6 October 2015, Japan submitted an amended declaration, which, inter alia, has
excluded from the Court’s jurisdiction ‘(3) any dispute arising out of, concerning, or relating
to research on, or conservation, management or exploitation of, living resources of the
sea’ (312 UNTS 155).
E. Commencement and Duration of Reciprocal Obligations
13 Art. 36 (4) ICJ Statute, which provides that declarations have to be deposited with the
UN Secretary-General (→ Depositary; → United Nations, Secretary-General), who, in turn
has to transmit copies to the parties to the Statute and to the registrar of the Court, is
particularly important since it pertains to the point in time from which the reciprocal
obligations of States arising from the optional clause declarations come into existence. In
the → Right of Passage over Indian Territory Case, the Court interpreted Art. 36 (4) ICJ
Statute as containing two separate, unrelated elements: the deposit of the State’s optional
clause declaration with the UN Secretary-General, on one hand, and the duty of the UN
Secretary-General to forward the declaration to the parties to the ICJ Statute, on the other.
The Court further explicitly asserted that the date from which the reciprocal obligation of
States arises and the legal nexus is established is the date when the declaration is
deposited with the UN Secretary-General, not the date of receipt of the notification from
the UN Secretary-General by the parties to the Statute. The Right of Passage over Indian
Territory Case doctrine was re-affirmed by the Court in the → Land and Maritime Boundary
between Cameroon and Nigeria Case (Cameroon v Nigeria). It should be noted, however,
that in that case, Nigeria put forward strong arguments as to why the Right of Passage over
Indian Territory Case should be reconsidered, in particular, on the basis of a lack of equity
and reciprocity between the parties which it could entail (see also → Equity in International
Law); and those arguments were supported in that case by the significant dissenting
opinion of Vice-President Weeramantry.
14 In practice, the process of notification of the submission of such declarations by the UN
Secretary-General may be delayed and in such a case, as a result of the doctrine in the
Right of Passage over Indian Territory Case, a State may be sued on the basis of the
compulsory jurisdiction of the Court without actually having prior knowledge that the suing
State had joined the system of optional clauses. In order to avoid such situations, several
States, such as the United Kingdom and Spain, exclude the jurisdiction of the Court in
relation to lawsuits filed less than 12 months prior to the other party’s acceptance of the
ICJ’s compulsory jurisdiction. This provision successfully provided a ground for lack of
jurisdiction in relation to both the UK and Spain in the cases before the ICJ concerning the
legality of the use of force against Yugoslavia, in which Yugoslavia filed its acceptance of the
Court’s compulsory jurisdiction three days before it filed its 10 complaints.
F. Legal Character of the Declarations and the Principles of
Their Interpretation
15 The legal character of optional clause declarations has a direct bearing on the rules of
their interpretation, as was explained by the ICJ. In the Nicaragua Case, the Court made the
following statement:
In fact, declarations, even though they are unilateral acts, establish a series of
bilateral engagements with other States accepting the same obligation of
compulsory jurisdiction, in which the conditions, reservations and time-limit clauses
are taken into consideration. In the establishment of this network of engagements,
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which constitute the Optional Clause system, the principle of good faith plays an
important role (para. 60).
16 In the Fisheries Jurisdiction Case, the ICJ stressed even more strongly the dual, sui
generis character of the optional clause declaration: on the one hand, a declaration
accepting the compulsory jurisdiction of the Court ‘is a unilateral act of State sovereignty’;
on the other, it establishes a ‘consensual bond’, ie a nexus of obligations, and a ‘potential
for jurisdictional link with other States’ (para. 46) and makes a ‘standing offer to the other
States party to the Statute which have not yet deposited a declaration of acceptance’ (Land
and Maritime Boundary between Cameroon and Nigeria Case para. 25).
17 Therefore, the Court stated in the Fisheries Jurisdiction Case that the interpretation of
declarations under Art. 36 (2) ICJ Statute and any reservation appended thereto, ‘is
directed at establishing whether mutual consent has been given to the jurisdiction of the
Court’ and that ‘[a]ll elements in a declaration under Art. 36 (2), of the Statute which, read
together, comprise the acceptance by the declarant State of the Court’s jurisdiction are to
be interpreted as a unity, applying the same legal principles on interpretation
throughout’ (para. 44). Further, since reservations to the declarations define the
parameters of the State’s acceptance of the ICJ’s jurisdiction, there is no need to interpret
them restrictively.
18 The general principle of interpretation of declarations and reservations
(→ Interpretation in International Law), deeply entrenched in the Court’s practice and
enunciated in many cases, such as the → Anglo-Iranian Oil Company Case and the
Norwegian Loans Case, is that every declaration ‘must be interpreted as it stands, having
regard to the words actually used’ (Anglo-Iranian Oil Company Case 105) and must be given
effect ‘as it stands’ (Norwegian Loans Case 27). In the Anglo-Iranian Oil Company Case, the
Court observed that since the declaration is a unilaterally drafted instrument, the Court
placed a certain emphasis on the intention of the depositing State.
19 As the Court further explained in the Fisheries Jurisdiction Case, the interpretation of
the relevant words of the declaration and the reservation follows the ‘natural and
reasonable way, having due regard to the intention of the State concerned at the time when
it accepted the compulsory jurisdiction of the Court’ (at para. 49). It should be particularly
noted that the emphasis intended by the Court is on the individual and subjective intention
of the depositing State, which is derived not only from the text of the relevant clause, but
also from the context in which the clause is to be read and even from the examination of
evidence regarding the circumstances of its preparation and the purposes intended to be
achieved. In this respect, the rules of interpretation of declarations differ significantly from
those relating to the interpretation of treaties themselves, in which it is the mutual
intention of the parties which has to be established, requiring an altogether more objective
approach.
20 Although the optional clause declaration results in a nexus of mutual relations, due to
the unilateral character of declarations, the regime of interpretation of declarations is not
identical with that of the → Vienna Convention on the Law of Treaties (1969). In the
Fisheries Jurisdiction Case, the Court noted: ‘the provisions of that Convention may only
apply analogously to the extent compatible with the sui generis character of the unilateral
acceptance of the Court’s jurisdiction’ (at para. 46).
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G. Optional Declarations and Other Fora of Settlement of
Disputes
21 The 2017 case Maritime Delimitation in the Indian Ocean (Somalia v Kenya)
(Preliminary Objections) is an example of a case in which the relationship between the
declarations under the optional clause of the ICJ Statute and Part XV United Nations
Convention on the Law of the Sea was analysed by the Court. Somalia instituted
proceedings against Kenya before the ICJ in 2014 concerning a dispute in relation to ‘the
establishment of the single maritime boundary between Somalia and Kenya in the Indian
Ocean delimiting the territorial sea, exclusive economic zone … and continental shelf,
including the continental shelf beyond 200 nautical miles’ (Maritime Delimitation in the
Indian Ocean [Application Instituting Proceedings] ICJ Doc 2014 General List No 161, para.
2). It relied upon optional declarations made by both States. Kenya raised a preliminary
objection as to the jurisdiction of the Court and submitted that the Court should treat
Somalia’s application as inadmissible.
22 The basis of the disagreement was the formulation in the declaration of Kenya ‘in
regard to which the parties to the dispute have agreed or shall agree to have recourse to
some other method or methods of settlement’ (Maritime Delimitation in the Indian Ocean
[Preliminary Objections] para. 31, referring to 531 UNTS 114; → Law of the Sea, Settlement
of Disputes; → Annex VII Arbitration: United Nations Convention on the Law of the Sea
[UNCLOS]). Kenya raised an objection regarding Part XV (‘Settlement of disputes’) of the
1982 United Nations Convention on the Law of the Sea. It contended that the Convention’s
dispute settlement system constitutes an accord regarding the method of settlement for its
maritime boundary dispute with Somalia. It contended that this falls within the scope of
Kenya’s reservation to its optional clause declaration, which excludes ‘[d]isputes in regard
to which the parties to the dispute have agreed or shall agree to have recourse to some
other method or methods of settlement’. The argument was based on a Memorandum of
Understanding signed between Kenya and Somalia in which they had agreed to have resort
to some other methods of settlement and that therefore the matter was covered by the
Kenyan reservation. The ICJ decided that the MOU in question was a binding treaty but not
sufficient to exclude the jurisdiction of the Court under the terms of Kenya’s reservation.
H. Assessment
23 The optional clause system is a compromise between a system of purely consensual, ad
hoc jurisdiction of international tribunals, which reflects the theory of the broadly voluntary
basis of the subjection of States to international law (→ Consent), and the desire to
introduce a full compulsory basis for the jurisdiction of the ICJ. As originally drafted, the
system might have gone some way towards achieving the objective of compulsory
jurisdiction if the making of unconditional declarations had become the general practice of
States. In fact, however, the widespread practice of making reservations, which goes far
beyond the limited reservations, as expressly allowed by Art. 36 (3) ICJ Statute, has
weakened the whole system. The withdrawal of the declarations by some of the permanent
members of the UN Security Council did not raise the status of this system. As the practice
stands at present, the preferred manner of submitting to the Court’s jurisdiction remains
the ad hoc agreement (→ Compromis). On the other hand, the new democracies in Europe,
such as Poland, willingly submitted themselves to the optional clause system, thereby
confirming their commitment to the jurisdiction of the ICJ. UN Secretary-General Kofi
Annan appealed in his 2001 Report on Prevention of Armed Conflict for a broader
participation in the optional clause system as a means of avoiding potential conflicts (UN
Doc A/55/985-S/2001/574). This statement of the Secretary-General is commented upon by
Judge Elaraby in his declaration to the 2006 judgment of the Court in the Armed Activities
on the Territory of the Congo Case (New Application: 2002), where he states: ‘thus, while
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consent forms the cornerstone of the system of international adjudication, States have a
duty under the Charter to settle their disputes peacefully. Recognition of the compulsory
jurisdiction of the Court fulfils this duty’ (Declaration of Judge Elaraby para. 9). He also
points out that:
some built-in limitations of the Statute, resonant of limitations of the international
legal system generally, are relics of a past era which need to be revisited…The
Court may thereby play a stronger role in the peaceful settlement of international
disputes and in enhancing respect for international law among States, thus
contributing in fact to ‘bring[ing] about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace (Art.
1, para. 1, of the Charter of the United Nations)’ (ibid para. 10).
24 This statement shows in a very persuasive manner the paramount role of the ICJ and its
compulsory jurisdiction.
25 It may be said that the future of the optional clause system is bright and since States
make optional declarations to use them, the worthy ideal of the draftsmen of the optional
clause retains its value (Merrills [2015] 915).
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JG Merrills and MD Evans ‘The Aerial Incident of 10 August 1999 (Pakistan v. India),
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Select Documents
Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12.
Anglo-Iranian Oil Co (United Kingdom v Iran) (Preliminary Objection) [1952] ICJ Rep
93.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v Rwanda) (Jurisdiction of the Court and Admissibility of the
Application) [2006] ICJ Rep 6.
Certain Norwegian Loans (France v Norway) [1957] ICJ Rep 9.
Declaration by Australia recognizing as Compulsory the Jurisdiction of the ICJ under
Art. 36 (2) Statute of the Court (International Court of Justice) (signed 22 March
2002) 2175 UNTS 493.
Fisheries Jurisdiction Case (Spain v Canada) (Jurisdiction) [1998] ICJ Rep 432.
Interhandel (Switzerland v United States of America) (Interim Measures of
Protection) [1957] ICJ Rep 105.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)
(Preliminary Objections) [1998] ICJ Rep 275.
Legality of Use of Force (Yugoslavia v Belgium) (Provisional Measures) [1999] ICJ Rep
124.
Legality of Use of Force (Yugoslavia v Canada) (Provisional Measures) [1999] ICJ Rep
259.
Legality of Use of Force (Yugoslavia v Netherlands) (Provisional Measures) [1999] ICJ
Rep 542.
Legality of Use of Force (Yugoslavia v Portugal) (Provisional Measures) [1999] ICJ Rep
656.
Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) [1999] ICJ Rep
761.
Legality of Use of Force (Yugoslavia v United States of America) (Provisional
Measures) [1999] ICJ Rep 916.
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Preliminary Objections)
[2017] ICJ Rep 3.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: University of Newcastle; date: 16 December 2024
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: University of Newcastle; date: 16 December 2024
