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Optional Clause Declarations: International Court of Justice (ICJ)
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Optional Clause Declarations:
International Court of Justice (ICJ)
Giovanni Distefano, Aymeric Hêche
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of International
Procedural Law [MPEiPro]
Article last updated: August 2018
Subject(s):
Compulsory jurisdiction — Consent to jurisdiction — Unilateral acts
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International
Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural
Law.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Media (Academic); date: 10 September 2019
A. Introduction
1 Optional clause declarations are governed by Article 36 (2) Statute of the International
Court of Justice (‘ICJ Statute’) (1945). As of September 2017, a total of 73 declarations
made pursuant to Article 36 (2) ICJ Statute were deposited with the Secretary-General of
the United Nations. Since optional clauses in the framework of the → International Court of
Justice (ICJ) (‘Court’) are tackled in a separate entry (→ International Court of Justice,
Optional Clause), the present contribution is solely focused on the → declaration itself as a
text, and on the considerations surrounding the declaration. Optional clause declarations
are defined as the text through which a State becomes part to the system instituted by
Article 36 (2) ICJ Statute. For instance, the Secretary-General of the United Nations (‘UN’)
received the following short declaration on 24 March 2006: ‘[t]he Commonwealth of
Dominica hereby accepts the → compulsory jurisdiction of the International Court of Justice
and makes this Declaration under Article 36 (2) of the Statute of the Court’ (Declaration by
Dominica recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36
(2) Statute of the Court (‘Declaration by Dominica’)).
2 We will first dwell in section B on the nature of optional clause declarations: they are a
specific form of unilateral act (→ Unilateral Acts of States in International Law), but also
have effects similar to a treaty. Section C surveys the key elements typically found in an
optional clause declaration and explains if, and why, they matter. Section D carefully
explains the principle of → reciprocity, a crucial component in the interplay of declarations.
Sections E, F, and H are devoted to the formal considerations of duration, withdrawal,
modification, nullity (→ Nullity in International Law), and interpretation of declarations. The
most common reservations are analysed in section G according to a threefold division
(reservations ratione materiae, personae, and temporis). Examples of the wording of the
reservations are provided, as well as the number of declarations containing the reservation.
3 Before diving into the core of the subject, the reader should note that a recent trend
shows a slow growth in the number of acceptations. Between April 2010 and September
2017, the total count of outstanding declarations deposited to the UN Secretary-General
rose from 66 to 73 (Kolb, 2013, 453). This means that a little less than 40 per cent of UN
members accepted the compulsory jurisdiction of the ICJ.
4 Additional lists, classifications, and surveys of optional clause declarations can be found
in scholarly writings (Farmanfarma, 1952, 172–86; Alexandrov, 1995, 129–59; Lamm, 2014,
270–303; Törber, 2015). The text of the declarations themselves can be accessed on the
ICJ’s website (available on the ‘Jurisdiction’ page) or in the ICJ’s Yearbook (available on the
‘Publications’ page), and on the United Nations Treaty Collection (‘UNTC’) website.
B. The Nature of Optional Clause Declarations

1. Optional Clause Declarations as Unilateral Acts
5 Optional clause declarations are deemed to be a unilateral act (Maus, 1959, 53). The
conditions of validity of unilateral acts are the will of the author State, a competent agent,
and a licit content. Acceptance by the recipient is not needed in order to produce effects
(unilateral acts are independent from acceptation). Among the five traditional unilateral
acts (renunciation, promise, recognition, protest, and notification), notification is the best
suited to match the features of optional clause declarations. On the other hand, the effects
of optional clause declarations are deemed to be of treaty-like nature.
6 If the author State’s will was vitiated at the time of the declaration, the optional clause
declaration cannot stand (ie the grounds listed in Articles 48–52 of the 1969 Vienna
Convention on the Law of Treaties). Although considered different from a treaty, unilateral
acts are widely governed by the customary rules reflected in the → Vienna Convention on
the Law of Treaties (1969) (‘VCLT’) (Military and Paramilitary Activities in and against
Nicaragua, 1984, 418; Törber, 2015, 79; International Law Commission, Guiding Principles
Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, [‘ILC
Guiding Principles’], ILC Guiding Principle No 7, 378).
7 The competent agent condition is equated with Articles 6–8 VCLT: only representatives of
the State entrusted with formal authorisations are allowed to file optional clause
declarations. Thus, the vast majority of optional clause declarations are signed by the
minister (whatever the nomenclature) of foreign affairs, or by the president, head of State,
head of government, prime minister, or by the ambassador, the plenipotentiary or
permanent representative to the United Nations. Accordingly, the Chinese government
revoked in 1972 the declaration made on 26 October 1946 on the ground that it ‘does not
recognize the statement made by the defunct Chinese government’ (Communication
received by the Secretary-General on 5 December 1972 indicating the revocation of the
declaration made by China on 26 October 1946 concerning the acceptance of the
compulsory jurisdiction of the ICJ).
8 The famous ‘Schultz letter’ (see Declaration by the United States of America relating to
its declaration of 14 August 1946 recognizing as compulsory the jurisdiction of the ICJ, 6
April 1984) received a few days before the beginning of the → Military and Paramilitary
Activities in and against Nicaragua Case (Nicaragua v United States of America) was only
signed by the United States Secretary of State (Military and Paramilitary Activities in and
against Nicaragua, 1984, 421 [‘Nicaragua’]). The Secretary-General of the United Nations
accepted the modification sought without questioning whether the Secretary of State had
the power to modify an optional clause declaration. Anyhow, the Secretary-General of the
United Nations confined himself to its depositary function (Art 36 (4) ICJ Statute; Arts 76–
78 VCLT). In this ambit, Article 77 (1) (b) VCLT provides that the depositary examines
‘whether the signature or any instrument, notification or communication relating to the
treaty is in due and proper form and, if need be, bringing the matter to the attention of the
State in question’. We might well conclude that officials as high as Secretary of State
represent the State in the opinion of the Secretary-General of the United Nations. By the
same token, the position of ‘Chancellor’ was deemed sufficient two times (see Declaration
by Australia recognizing as compulsory the jurisdiction of the ICJ under Art 36 (2) Statute
of the Court (‘Declaration by Australia’), 22 March 2002; Declaration by Switzerland
recognizing as compulsory the jurisdiction of the ICJ under Art 36 (2) Statute of the Court
(‘Declaration by Switzerland’), 28 July 1948); in those two cases it must be noted that the
declarations were co-signed by the Chancellor and the president.
9 Even if the signatory and his/her capacity do not appear in the declaration published on
the ICJ or UN website, it is possible to trace this back in the notification addressed to the
UN Secretary-General. The Declaration by the United Kingdom of Great Britain and
Northern Ireland recognizing as compulsory the jurisdiction of the ICJ in conformity with
Article 36 (2) Statute of the ICJ (‘Declaration by the United Kingdom’) of 22 February 2017,
as published on the ICJ’s website, does not mention the signatory, Matthew Rycroft, who
was permanent representative to the UN at the time. The notification itself is silent on his
official capacity. Although the validity of optional clause declarations is not put in jeopardy
if the signatory and official capacity are missing, it is important that they can be
ascertained in one way or another, such as the full-length notification addressed to the UN
Secretary-General. The lack of reference to the official capacity may cast a doubt and offer
a leeway for other States Parties to contest the validity of optional clause declarations.
10 The requirement of a licit content is best summarized by two principles: declarations

cannot contradict the ICJ Statute, and must not violate → ius cogens (ILC Guiding Principle
No 8, 378; Kolb, 2013, 501). In case of a contradiction with the ICJ Statute, the question of
severability (application of Article 44 VCLT by analogy) arises (see sec F below, on
withdrawal and modification of optional clause declaration). On the face of it, the non-
contradiction requirement with the ICJ Statute may appear as a self-evident, easy-to-apply,
principle. Instead, this requirement has been used to back up the fact that a declaration
cannot be withdrawn with immediate effect and that a reasonable period has to be
respected (Kolb, 2013, 524). The underpinning of this reasonable period is that the
rationale of the ICJ Statute is to favour the Court’s jurisdiction; therefore, States must not
be allowed to leave the network of compulsory acceptations with immediate effect (Kolb,
2013, 524).
11 Notifications are a kind of ‘unilateral declaration’. The features that put optional clause
declarations under the heading of notifications are the following: optional clause
declarations do not exist by themselves, they are based on the ICJ Statute—they are thus
‘dependent’, or ‘non-autonomous’, notifications (Kolb, 2013, 497). Optional clause
declarations are dependent in the sense that they belong to the framework of the ICJ
Statute which regulates their conditions and effects. They are also constituent: the issue of
an optional clause declaration is the only way to become part of the system instituted under
Article 36 (2) ICJ Statute. A mere internal law providing for an optional clause declaration is
not enough by itself; the international notification is the required step. Finally, optional
clause declarations are subject to reception by the Secretary-General of the United Nations.
Optional clause declarations allow the notifying State to institute proceedings as soon as
the Secretary-General has received the optional clause declaration. This last characteristic
has been exploited as an advantage by the notifying State. For instance, Portugal took
advantage of the few days between reception by the Secretary-General and communication
to the other State Parties to file an ‘ambush’ application against India (Right of Passage
over Indian Territory, 1957, 146)). This led to a practice of reservations against ‘ambush’
applications—see sec G.1.b below, titled ‘The “Anti-Ambush Application” Reservation’—eg
the Declaration by Australia does not allow jurisdiction if ‘the acceptance of the Court’s
compulsory jurisdiction on behalf of any other party to the dispute was deposited less than
12 months prior to the filing of the application bringing the dispute before the Court’. This
reservation allows States to quickly withdraw or modify their declaration in order to avoid
an unwanted case.
12 The Declaration by Canada recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (‘Declaration by Canada’) of 10 May 1994
and the Declaration by Norway recognizing as compulsory the jurisdiction of the ICJ in
conformity with Article 36 (2) Statute of the ICJ (‘Declaration by Norway’) of 24 June 1996
expressly requested the Secretary-General to communicate the declaration to other States
Parties and to the ICJ’s Registrar. Unless this is made a condition upon the validity of the
declaration, such request is useless. A more expedient means is to specify the date from
which the declaration will be binding—see the Declaration by Sweden recognizing as
compulsory the jurisdiction of the ICJ under Art 36 (2) Statute of the Court of 6 April 1957;
such arrangements do not contradict the ICJ Statute.
2. The Relevance of Treaty Law or the Optional Clause as an
‘Agreement’
13 Although conceptually distinguished from treaties, optional clause declarations are
mainly governed by treaty law rules (Törber, 2015, 160). The application of treaty law rules
weighs heavily on the interpretation of declarations (Arts 31–33 VCLT) (Fisheries
Jurisdiction, 1998 (→ Fisheries Jurisdiction Case (Spain v Canada)), 452–54; Törber, 2015,
158–60). The application of treaty law rules to optional clause declarations is made clear in
case law as well as in scholarly writings. As for case law, the 1984 Nicaragua Case (which
made reference to Nuclear Tests Case, 1974) emphasizes that optional clause declarations
‘establish a series of bilateral engagements with other States accepting the same obligation
of compulsory jurisdiction’ (Nicaragua, 418). Like a multilateral treaty, States that make
optional clauses declarations enter into a ‘network of engagements’ (Nicaragua, 418). This
comparison leads to an application by analogy of treaty law to optional clause declarations
(Fisheries Jurisdiction, 453). Scholarly writings go further and affirm that the optional
clause is to be considered a treaty (Maus, 1959, 60–62; Alexandrov, 1995, 9–16; Törber,
2015, 330).
14 Finally, issues of interpretations of optional clause declarations are mainly dealt with by
an analogous application of the law of treaties (Törber, 2015, 85 and 144). In the same vein,
the question of the possible withdrawal of a declaration on immediate notice is discarded
because treaty law does not allow it (Art 56 VCLT; Törber, 2015, 307). In the end, optional
clause declarations are dealt with according to the law of treaties. Nevertheless, the ICJ
underscores that in some cases a different ad hoc regime may exist for optional clause
declarations (Fisheries Jurisdiction, 453 para 46; Törber, 2015, 159–60).
C. The Key Elements of an Optional Clause Declaration

15 Not all declarations include the same elements. A minimal and straight to the point
declaration such as the Declaration by Dominica quoted in the introduction triggers the
mechanism of Article 36 (2) ICJ Statute and binds the State. What is essential is the
acceptance of the compulsory jurisdiction of the ICJ; States do not have to specify which of
the four classes of disputes of Article 36 (2) they accept. On the other hand, there is no
word limit to optional clause declarations (eg long declarations such as the Declaration by
India recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36 (2)
Statute of the ICJ [‘Declaration by India’], 18 September 1974, and the Declaration by
Djibouti recognizing as compulsory the jurisdiction of the Court in conformity with Article
36 (2) Statute of the ICJ [‘Declaration by Djibouti’], 2 September 2005). The elements
selected hereafter are not necessarily present in all declarations; neither do they appear in
the order given here.
16 The declarations were accessed on the ICJ’s website. One should note that the ICJ’s
website has no official value and it may happen that the declarations are not immediately
updated, as was the case for Bulgaria between December 2015 and July 2017. The Yearbook
of the ICJ (‘ICJ Yearbook’), which also has no official value (Nicaragua, 403; ICJ Yearbook,
2015–2016, 14 and 60 Find it in your Library) publishes only the new declarations since its
2010–11 edition. The most reliable source to consult all declarations and renewal
instruments is the UNTC’s website.
1. Date of Reception
17 Two dates appear, one at the beginning of the declaration, and one at the end—the
latter is the ‘place and date’ element. The front date is the date of reception of the
declaration by the Secretary-General of the United Nations and it is the date that matters
since reception creates jurisdiction. This date is not part of the original declaration but is
added to the declaration by the ICJ’s Registrar.
2. Translation
18 Declarations are available in French and English on the ICJ’s website. If translated, a
note ‘[Translation from …]’ appears at the beginning of the declaration. As with the date,
this note is added by the ICJ’s Registrar. Given Article 33 VCLT (‘Interpretation of treaties
authenticated in two or more languages’), only the untranslated version should be taken
into account for interpretation (ILC Guiding Principle No 7, 378).
3. Opening Remarks, General Considerations, Preamble

19 Declarations may start with opening remarks, general considerations, or even with a
preamble (use of ‘whereas’, eg the Declaration by Australia, Declaration by Denmark
recognizing as compulsory the jurisdiction of the ICJ under Art 36 (2) Statute of the Court,
10 December 1956, Declaration by Greece recognizing as compulsory the jurisdiction of the
ICJ under Art 36 (2) Statute of the Court [‘Declaration by Greece’], 14 January 2015, and
Declaration by Paraguay recognizing as compulsory the jurisdiction of the ICJ under Art 36
(2) Statute of the Court, 25 September 1996). These initial statements are not a condition of
the validity of the declaration. They give the reasons why a declaration is made or details on
the preparation of the declaration. The Declaration by Djibouti uses sentences commonly
found in treaty preambles: it recites the will ‘to reach a peaceful and equitable settlement of
all international disputes’ and ‘to make a contribution to the further development and
consolidation of international law’. Preambles also refer to the ratifications of the → United
Nations Charter and of the ICJ Statute.
20 When the declaration overwrites a previous one, it is not uncommon that it expressly
acknowledges this. It comes from the fact that the State withdraws with immediate effect
the previous declaration and replaces it with the new one, eg the Declaration by Australia
‘gives notice effective immediately of the withdrawal of that declaration and replaces the
same with the following declaration’.
21 It is not uncommon as well that the first lines make known the author of the declaration
and on behalf of whom the declaration is made. The Declaration by Egypt recognizing as
compulsory the jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ
(‘Declaration by Egypt’) of 22 July 1957 starts with: ‘I, Mahmoud Fawzi, Minister for
Foreign Affairs of the Republic of Egypt, declare on behalf of the Government of the
Republic of Egypt’. Usually, declarations are made on behalf of the State, the government,
or the legislative assembly. In addition to these details, the internal legislative act (royal
decree, decree, law, Order of the Diet, etc) allowing the author to make the declaration is
sometimes mentioned, eg the Declaration by Honduras recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ of 6 June 1986.
Since States are free to organize themselves as they please, the competent authority
(executive, legislative) to decide to make an optional clause declaration and to issue it at
the international plane depends on the constitutional organization.
22 Analogously to the law of treaties, it can be contended that a declaration is voidable if

made without adequate powers or authorization (Arts 7 and 8 VCLT; ILC Guiding Principle
No 4, 372), or in a way that contradicts internal law of fundamental importance (Art 46
VCLT).
4. Acceptance of the Compulsory Jurisdiction

23 The acceptance of the compulsory jurisdiction is the most important part of the
declaration. A written declaration is necessary (Kolb, 2013, 459). It need not be elaborate; a
single sentence is enough, such as the Declaration by Dominica of 24 March 2006. The
usual extensive formula reads as follows: ‘in conformity with paragraph 2 of article 36 of
the Statute of the International Court of Justice, Japan recognizes as compulsory ipso facto
and without special agreement, in relation to any other State accepting the same obligation
and on condition of reciprocity, the jurisdiction of the International Court of
Justice’ (Declaration by Japan recognizing as compulsory the jurisdiction of the ICJ in
conformity with Article 36 (2) Statute of the ICJ [‘Declaration by Japan’], 6 October 2015).
The reference to Article 36 (2) ICJ Statute is not mandatory; eg the Declaration by Liberia
recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36 (2)
Statute of the ICJ (‘Declaration by Liberia’) of 20 March 1952 and the Declaration by
Pakistan recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36
(2) Statute of the ICJ (‘Declaration by Pakistan’) of 29 March 2017 do not mention it and are
perfectly valid. What is crucial is the acceptance of the compulsory jurisdiction of the Court.
24 The condition of reciprocity works as a reminder. Even if the declaration is silent about
reciprocity, States are allowed to invoke their adversaries’ reservations (Kolb, 2013, 461).
One must be aware that the reciprocity condition appearing in Article 36 (3) ICJ Statute, is
a ‘special’ reciprocity, the purpose of which is to subject the entry into force of a declaration
to the deposit of a given number of declarations by other States, or to the deposit of a
declaration by a specific State (Declaration by Brazil recognizing as compulsory the
jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ [‘Declaration by
Brazil’], 12 February 1948; Kolb, 2013, 475).
5. Four Classes of Disputes

25 As of September 2017, 18 declarations recite the four classes of disputes for which
jurisdiction is granted. These four classes are listed in Article 36 (2) ICJ Statute: ‘(a) the
interpretation of a treaty; (b) any question of international law; (c) the existence of any fact
which, if established, would constitute a breach of an international obligation; (d) the
nature or extent of the reparation to be made for the breach of an international obligation’.
If this enumeration is a copy of Article 36 (2) ICJ Statute, this is not a reservation and the
Court enjoys full jurisdiction, as if there was no enumeration. On the other hand, States can
be more specific toward one or more classes of disputes, for instance the Declaration by
Cyprus recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36
(2) Statute of the ICJ (‘Declaration by Cyprus’) of 3 September 2002 and the Declaration by
Sudan recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36 (2)
Statute of the ICJ (‘Declaration by Sudan’) of 2 January 1958 limited the jurisdiction to
treaties concluded after independence (reservations ratione temporis). The idea of the four
classes of disputes dates back to the 1907 Hague Conference; the goal was to let States
chose which one they agreed to submit to the Court (Törber, 2015, 175; Lamm, 2014, 20).
6. Reservations
26 Aside from selecting the classes of disputes, States are free to make additional
reservations. There are four common reservations: the safeguard of other peaceful means
of settlement (36 occurrences as of September 2017), the ‘domestic jurisdiction’ reservation
(23 occurrences), the ‘anti-ambush’ reservation (23 occurrences), and the ‘single dispute’
reservation (21 occurrences). Reservations must not violate the ICJ Statute, nor ius cogens
(ILC Guiding Principle No 8, 378; Kolb, 2013, 501; Armed Activities on the Territory of the
Congo (New Application: 2002), 2006, 3 [‘Armed Activities’]).
27 There is no limitation on the number of reservations, see the Declaration by Djibouti of

2 September 2005. The Egyptian Declaration of 22 July 1957 has significant limits, although
it may not appear so on the face of it: all disputes are reserved but those concerning the
Suez Canal. When possible, States tailor their reservations ahead of time: in the wake of
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament, 2016 (‘Nuclear Disarmament’), a ‘Vandenberg’ reservation was
introduced (see Declaration by the United Kingdom, para 1 (vi)) that now prevents States
from bringing cases related to nuclear weapons or nuclear disarmament against the United
Kingdom. The practice of tailor-made reservations is legal and not isolated, eg the third
reservation of Japan about whaling on 6 October 2015 (Declaration by Japan), or the 24
October 2001 reservation of Nicaragua excluding treaties prior to 1902 (Declaration by
Nicaragua recognizing as compulsory the jurisdiction of the ICJ in conformity with Article
36 (2) Statute of the ICJ). The list of reservations is usually introduced by sentences like
‘provided that this declaration shall not apply to’. One must pay close attention in order to
track down reservations since they are not always listed all together.
7. Withdrawal, Modification, Duration, and Renewal

28 The provisions on withdrawal, modification, duration, and renewal end the substantive
part of a declaration (for the sake of our argument, they can also be found at the beginning
of the declaration, especially the provision on duration).
29 Duration and renewal: according to Article 36 (3) ICJ Statute, the declarations may be
made ‘for a certain time’. Most of the States (56 occurrences) opted for an indefinite
duration clause. Declarations are of an indefinite duration when they are silent about their
duration or when they include formulations like ‘until such time as notice may be given to
terminate such acceptance’ (Declaration by India) or ‘[t]he present declaration has been
made for an unlimited period’ (Declaration by Cote d’Ivoire recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ, 29 August 2001).
States which chose a definite time period (17 occurrences) usually limited the declaration’s
validity to five years.
30 When a declaration expires by lapse of time, the Registrar erases it from the ICJ’s
website (Nauru, extension made on the 4 September 1992, Depositary Notification by the
Secretary-General, 16 November 1992). If the declaration is silent on its renewal, it implies
that the declaration automatically lapses at the end of the planned time period, eg the now
extinct Declaration by Turkey recognizing as compulsory the jurisdiction of the Court in
conformity with Article 36 (2) Statute of the ICJ (‘Declaration by Turkey’), 22 May 1947, and
the Declaration by Thailand recognizing as compulsory the jurisdiction of the Court in
conformity with Article 36 (2) Statute of the ICJ (‘Declaration by Thailand’), 20 May 1950,
that were made for five and ten years. Otherwise, declarations of definite duration provide
that they automatically renew for a new five-year period, or that they convert into indefinite
duration at the end of the five-year period.
31 We list together withdrawal and modification of reservations since the ICJ makes no
essential differences between them (Right of Passage over Indian Territory, 143–44). If
States are silent about these two issues, they still enjoy the right to modify or withdraw
their declaration within a reasonable time period (Nicaragua, 420). The vexed question is
whether declarations expressly mentioning modification or withdrawal with immediate
effect are valid; this will be dealt with in the ‘Withdrawal and Modification of Optional
Clause Declaration’, section F below.
32 If the withdrawal does not take place with ‘immediate notice’, States expressly bind
themselves to comply with a six—or sometimes twelve—months period before the
modification or withdrawal takes place (see the Declaration by Hungary recognizing as
compulsory the jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ
of 22 October 1992 for a six months period, and the Declaration by Switzerland of 28 July
1948 for a twelve months period). The standard clause for modification recites: ‘add to,
amend or withdraw any of the foregoing reservations’ (Declaration by the United Kingdom).
This is done in order to cover all kind of modifications, such as new reservations, change in
a reservation, and suppression of a reservation. A more expedient means would be to
reserve the overall right to modify the whole of the declaration since a modification and a
new declaration are the same in the Court’s eyes.
8. Place and Date of Signature

33 The declaration’s penultimate elements are the enumeration of place and date of
signature. The place where the declaration was signed is not always mentioned and really
has no bearing on the declaration: the Declaration by the Netherlands recognizing as
compulsory the jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ of
21 February 2017 (‘Declaration by the Netherlands’) was made in Bucharest. It may happen
that the place indicated is outside of the State, especially when the declaration was signed
by an ambassador, plenipotentiary, or permanent representative to the UN. The date of
signature is the date of creation of the declaration by an agent of the State (ambassador,
head of government, etc). In the past it was not unusual that a few weeks elapsed between
the signature and reception by the Secretary-General, eg the Declaration by the Philippines
recognizing as compulsory the jurisdiction of the Court in conformity with Article 36 (2)
Statute of the ICJ (‘Declaration by the Philippines’) was signed on 23 December 1971 and
received by the Secretary-General only on 18 January 1972.
34 As the → Right of Passage over Indian Territory Case taught us, ignorance on the part of
the adversary is not a bar to the Court’s jurisdiction. In this ICJ case, Portugal filed an
application against India a few days after accepting the Court’s compulsory jurisdiction,
and more importantly before India knew that Portugal chose to become party to the
network of compulsory jurisdiction.
9. Signatory and Official Capacity

35 Declarations end with the signatory along with its official capacity. It consists of two
lines, first the name, then the capacity. Neither elements are mandatory, eg the Declaration
by the United Kingdom that abruptly ends with the date of issue. The signatory and the
official capacity are not mandatory, but they matter: only specific agents of the State are
deemed to enjoy the right to issue a declaration of acceptation (see above, sec B.1; ILC
Guiding Principle No 4, 372). It should thus be recommended that States specify the official
capacity of the signatory.
D. Reciprocity
36 Reciprocity is here intended within the meaning of Article 36 (2) ICJ Statute (‘[t]he
states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court’) and it must not be mistaken
with another kind of reciprocity mentioned in Article 36 (3) ICJ Statute (‘[t]he declarations
referred to above may be made … on condition of reciprocity on the part of several or
certain states’). According indeed to the interpretative principle of effectiveness (‘effet
utile’), Article 36 (2) and (3) ICJ Statute must be deemed as not addressing the same
phenomenon, otherwise we would not have two separate provisions.
37 Indeed, Article 36 (3) ICJ Statute envisages two different dimensions which are not
governed by Article 36 (2) ICJ Statute. The first one is enunciated in the phrasing: ‘on
condition of reciprocity on the part of several or certain States’. In other words, if a State
does express this condition of ratione personae reciprocity, its acceptance of the Court’s
jurisdiction will be operative once other States—specified in its declaration—have made
their own declaration under Article 36 (2) ICJ Statute. The former Declaration by Brazil,
framed in the following terms, illustrates this type of reservation whereby it recognized as
compulsory ‘the jurisdiction of the said Court for the period of five years, on condition of
reciprocity and as soon as it has likewise been recognized as such by two at least of the
Powers permanently represented on the Council of the League of Nations’ (Declaration by
Brazil (emphasis added); Kolb, 2013, 478). In so declaring, this State wished to ensure itself
that, for its declaration to be operative, at least two permanent members of the League of
Nations Council had accepted the same commitment. The second fragment of the sentence
(‘or for a certain time’) allows States to specify the duration of the validity of their
acceptance, which can thus be made for an indefinite or definite lapse of time.
38 This time dimension must not be confused with that related to ratione temporis
reservations restricting the Court’s jurisdiction; in fact, in one case, we are dealing with the
duration of the optional declaration itself, whilst in the other (ie reservation), the
declaration of acceptance is indeed in force but it cannot be applied since its temporal
scope of application is restricted by a State’s reservation.
39 The principle of reciprocity’s finality lies in the need to restore the judicial equality
between the two parties whenever there is a substantive discrepancy with regard of their
optional declarations, and in a certain way is integral to Article 36 (2) ICJ Statute itself. In
sum, the principle of reciprocity addresses the question of judicial fairness allowing the
defendant to avail itself of the claimant’s reservations that the latter could have invoked if
the role would have been switched. In fact, it would have been unfair to permit a State to
benefit from its own reservations when it is claimant and deny another State to enjoy them
when the roles are reversed.
40 The rule of reciprocity of Article 36 (2) ICJ Statute is aimed at the content of optional
clause declarations deposited by other States Parties. Article 36 (2) ICJ Statute’s reference
to the ‘same obligation’ when dealing with the optional declaration means that this
sameness must be established both on the formal and on the substantive plane for the
Court’s jurisdiction to be established. In fact, given the very wide diversity of declarations
as to content (substantive), containing or not—and what kind of—reservations, one ought to
ask what would be the Court’s jurisdiction ratione materiae in cases where there is a
substantive discrepancy between the declarations. The ICJ Statute does not provide a
solution in case of discrepancy, but the practice of the Court and States, as well as the
underlying principles of the ICJ Statute shed light on how to address the Court’s
jurisdiction. In light of the aforesaid, ‘same obligation’ (Nicaragua, 420–21) requires that
States have accepted the same commitment, not only from a formal point of view—that is to
say they have precisely made the optional declaration—but also that they have hereby
accepted the ‘same [content of this] obligation’. In other words, it does not suffice for the
Court’s jurisdiction to be founded that the two States to a dispute have made such a
declaration (formal requirement), but one has to verify the precise substantive scope of the
obligation they have committed to through Article 36 (2) ICJ Statute. The rationale of the
answer lies with the States’ consent conveyed by the optional declaration; since it founds
the Court’s jurisdiction, its substantive scope must be the ‘same’. Therefore, if there is a
substantive discrepancy whatsoever between the two declarations concerned, then the
Court’s jurisdiction will be established on the ‘same obligation’, that is to say, by the
common denominator (Anglo-Iranian Oil Co. Case, 1952, 103; Certain Norwegian Loans,
1957, 23; Land and Maritime Boundary between Cameroon and Nigeria, 1998, 298 [‘Land
and Maritime Boundary’]).
41 In sum, all the reservations—both of the claimant and of the defendant—will be taken
into account, thus restricting the Court’s jurisdiction. This means that—in order to
challenge the Court’s jurisdiction—the defendant is authorized to avail itself, by virtue of
the principle of reciprocity, not only of course of its own (possible) reservation(s), but also of
that (those) contained in the claimant’s optional declaration. It goes without saying, that, in
the same manner as for its own reservations, the defendant is free to invoke any of the
claimant’s reservations; if it does not, then the Court’s jurisdiction will be established on
the basis of → forum prorogatum.
42 It has to be emphasized that the ICJ does not take into account the claimant’s
reservations unless the defendant asks for it. The matter of the ICJ’s jurisdiction is more
simply approached by following a claimant vs defendant perspective. The claimant initiates
the proceedings; its memorial gives the scope of the dispute. For instance, the claimant can
perfectly choose to submit a territorial dispute to the ICJ even if it made a reservation about
such disputes in its optional clause declaration (the claimant is making a bet on a forum
prorogatum jurisdiction). Now, we have to focus on the defendant where two paths are
possible: (1) the defendant made a reservation on territorial disputes in its declaration; (2)
the defendant did not make such a reservation. In the first scenario, the defendant is free to
invoke its own reservation: if it waives its right to do so, the ICJ can entertain the dispute on
a forum prorogatum basis, but if the defendant invokes its reservation, the ICJ is barred. In
the second scenario, when the defendant has not made a reservation about territorial
disputes, it is free to look at, and invoke, or not, the claimant’s reservations. This either
leads to the ICJ’s jurisdiction (no invocation of the claimant’s reservation) or absence
thereof (invocation of the claimant’s reservation). Rather than a ‘pooling of reservation’
done in the abstract, the issue of reciprocity and jurisdiction is a chronological sequence
where the focus is more on the action and reaction of the claimant and defendant than on
their reservations. It is nonetheless obvious that in most cases the claimant will thoroughly
look at the defendant’s reservations and vice versa: if it has the chance, a defendant will
immediately invoke its own reservations or those of the claimant.
43 As to the time frame of reciprocity, ‘pre-seisin reciprocity’ is discarded (Kolb, 2013,

483). This means that reciprocity does not apply to the withdrawal or modification of
reservations. In the Right of Passage over Indian Territory case, India, in its second and
fourth preliminary objections, tried to extend reciprocity to the possibility of withdrawing a
declaration with immediate effect (the Declaration by Portugal recognizing as compulsory
the jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ [‘Declaration
by Portugal’] expressly included this right). The ICJ discarded India’s arguments on the
ground that the consensual bond is created at the time of reception of the optional clause
declaration: jurisdiction has to be scrutinized at the date of the deposit of the application
(Right of Passage over Indian Territory, 145–47, 2nd and 4th preliminary objections;
Nicaragua, 420–21). Reciprocity did not allow India to invoke the ‘immediate withdrawing’
of the Declaration by Portugal given that jurisdiction was already created. Allowing pre-
seisin reciprocity would jeopardize the ICJ’s jurisdiction since States could invoke their
adversaries’ provisions on immediate modification or withdrawal (Kolb, 2013, 483–86).
44 The absence of pre-seisin reciprocity seems to have prompted the third paragraph of
the Declaration of 29 October 1990 (<https://treaties.un.org/Pages/Declarations.aspx?
index=Spain&lang=_en&chapter=1&treaty=316> (accessed 24 May 2019)): ‘[t]he
withdrawal of the Declaration shall become effective after a period of six months has
elapsed from the date of receipt by the Secretary-General of the United Nations of the
relevant notification by the Spanish Government. However, in respect of States which have
established a period of less than six months between notification of the withdrawal of their
Declaration and its becoming effective, the withdrawal of the Spanish Declaration shall
become effective after such shorter period has elapsed’ (emphasis added). In other words,
the Declaration by Spain expressly provides for pre-seisin reciprocity. The Declaration by
Spain is an exception to the interdiction of pre-seisin reciprocity. Should withdrawal with
immediate effect be ruled lawful by the ICJ, Spain could enjoy this right against States that
issued a declaration providing for immediate withdrawal. On the face of it, the Declaration
by Spain is perfectly lawful given that (1) there are ongoing uncertainties whether or not
withdrawal with immediate effect is valid, and (2) Spain could have opted for withdrawal
with immediate effect (Alexandrov, 1995, 66; Kolb, 2013, 522; Törber, 2015, 189, 191).
45 To generally grasp which matters reciprocity applies to—the Declaration by Spain being
an exception—one has to see the distinction between ‘formal conditions’ and ‘substantive
matters’ in optional clause declarations (Kolb, 2013, 473–74; Törber, 2015, 181–83). Formal
conditions refer to the duration, modification, and withdrawal of the declaration. The
‘substantive part’ relates to the scope of jurisdiction given to the Court. Only the
‘substantive part’ is subject to reciprocity.
E. Duration of Optional Clause Declarations

46 Duration is here understood as the period of validity of the declaration, while
reservations ratione temporis deal with the time scope of disputes eligible for application
(see sec G.1 below, ‘Reservations ratione temporis’). Thus, a declaration made in 2017 for a
five-year period (duration) may allow application for disputes existing much prior to the
declaration (ratione temporis). Duration is part of the ‘formal conditions’ of optional clause
declarations (Törber, 2015, 181–83).
47 Duration of optional clause declarations are encompassed under Article 36 (3) ICJ
Statute: ‘[t]he declarations referred to above may be made unconditionally or on condition
of reciprocity on the part of several or certain states, or for a certain time’ (emphasis
added). The undefined time period is the default rule of the ICJ Statute. As of September
2017, most of the declarations (56 out of 73) were made for an undefined time period.
Among the remaining 17 declarations, 10 were made for an initial period of five years and
then automatically converted to an unlimited period (eg Declaration by Bulgaria
Statute of the ICJ, 27 November 2015). So it is safe to say that the overwhelming majority
(66 out of 73 declarations) are now of an undefined time period.
48 The Declaration by Norway of 24 June 1996 and the Declaration by Canada of 10 May
1994 requested that: ‘this notification be communicated to the governments of all the
States that have accepted the Optional Clause and to the Registrar of the International
Court of Justice’. This request is useless on two levels: first because it duplicates Article 36
(4) ICJ Statute (‘[the Secretary-General of the United Nations] shall transmit copies thereof
to the parties to the Statute and to the Registrar of the Court’), and second since the entry
into force of declarations is not dependent on reception by other States or the ICJ’s
Registrar.
49 The default rule is that entry into force is not dependent on subsequent ratification
(Kolb, 2013, 457; Törber, 2015, 91). Among the declarations made under condition of
ratification, only the Declaration by Liberia, 20 March 1952, and the Declaration by the
Dominican Republic, 30 August 1924, are still standing (ratifications were deposited
respectively in 1953 and 1933) (Alexandrov, 1995, 144). States may validly make their
declaration dependent on ratification (Farmanfarma, 1952, 66–67; Maus, 1959, 107; Törber,
2015, 92–93). Thus far, the issue of ratification has never been brought before the ICJ. In
any case, no declaration was made on condition of ratification since 1952.
50 If declarations are not made for an unlimited period, they are usually made for a fixed
period of five years (except the Declaration by Cambodia recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ [‘Declaration by
Cambodia’], 19 September 1957, made for ten years). At the end of the initial five-year
period, declarations are divided into three categories: (1) convertible declarations, (2)
‘tacit’ renewal, and (3) ‘express’ renewal.
51 After the initial period, the bulk of declarations are automatically converted into
unlimited period declarations. The formula reads as follows: ‘[t]he present Declaration shall
be in force for a period of five years from the date of its deposit with the Secretary-General
of the United Nations. It shall continue in force thereafter until six months after a notice of
its denunciation is given to the Secretary-General of the United Nations’ (Declaration by
Bulgaria). We may ask whether such declarations are considered as not withdrawable
during the initial period (Törber, 2015, 168). This issue is even more pressing with the next
category.
52 In the ‘tacit renewal’ category, States provide: ‘this declaration shall thereafter be
tacitly renewed for additional periods of five years, unless notice of termination is given not
less than six months before the expiration of the current period’ (Declaration by Norway). It
means that at the end of the initial period, and thereafter at the end of every five year
period, the declaration is renewed and can only be withdrawn no later than six months
before the end of a period. The wording ‘unless notice of termination is given not less than
six months before the expiration of the current period’ seems to indicate that States have
waived the right to withdraw before the end of a period. The optional clause declaration
works as a fixed-term declaration in these cases. The renewal is not ‘tacit’ per se since the
renewal process is expressly provided for in the declaration. ‘Tacit’ here implies that States
have nothing to do in order to remain part to the optional clause system: the renewal is
automatic.
53 In the ‘express renewal’, a State provides for an initial period of five, or more, years,
but at the end the declaration automatically lapses, save for an express renewal coming
from the State. As of September 2017, there is no declaration that provides for an express
renewal. The best past example is the 22 May 1947 Declaration by Turkey that was
renewed four times. The mechanism of express renewal is less burdensome than issuing a
new declaration—a mere notification expressing the will to renew the past declaration with
a date from which the new period begins is enough. In particular, there is no need to copy
the extensive original declaration each time it is renewed. The fixed term period is deemed
to end on the same day of the same month, eg from 22 May 1947 to 22 May 1952.
54 The Declaration by Djibouti of 2 September 2005 escapes this classification. The
wording ‘[t]his declaration is made for a period of five years’ is very clear and indicates a
fixed term period that automatically lapsed on 2 September 2010 (Lamm, 2014, 276).
However, it does not seem that Djibouti renewed its declaration, and the subsequent Annual
Reports of the ICJ up to 2016–2017 list Djibouti as part of the system of Article 36 (2) ICJ
Statute. Either the two renewal instruments could not be found on the various websites of
the UN, or the extensions were never deposited.
55 Optional clause declarations lapse either when the fixed term period is reached (as in
the Declaration by Turkey) or when they are withdrawn. Optional clause declarations may
be withdrawn at the end of a five-year period (‘tacit renewal’ category), or, depending on
the text of the declaration, with twelve or six months’ notice, or ‘with immediate effect’: we
will see in the next section whether it is valid. If the declaration is silent on the right to
withdraw, the default rule is to comply with a reasonable time period (Nicaragua, 420;
Törber, 2015, 216–19).
56 Optional clause declarations are not deemed to lapse when they are modified or
overwritten; if the State is continuously party to the system of Article 36 (2) ICJ Statute, the
modified or overwritten declaration immediately follows the preceding one. A ‘modified’
declaration refers to slight changes in the reservations such as the addition, amendment, or
withdrawal of a reservation. An ‘overwritten’ declaration is a modification beyond slight
changes, for example a new period is introduced to withdraw the declaration. This
distinction has no practical significance, but States sometimes specify that their declaration
overwrites the preceding one, eg the third paragraph of the Declaration by Australia.
F. Withdrawal and Modification of Optional Clause Declaration

57 Withdrawal is the exit from the system created by Article 36 (2) ICJ Statute.
Modification is a change (addition, amendment, or erasing) of a part of the existing optional
clause declaration. Most changes are in fact the addition of new reservations; they thus
restrict the Court’s scope of jurisdiction. Withdrawal and modification is the same matter
(Nicaragua, 417). Scholarly works too consider withdrawal and modification as one topic
(Kolb, 2013, 526; Törber, 2015, 121 and 278). Withdrawal and modification are part of the
‘formal conditions’ of a declaration, reciprocity does not apply to them. The notification to
withdraw or to modify the clause is addressed to the Secretary-General (principle of
parallelism and Article 36 (4) ICJ Statute).
58 In most declarations, withdrawal and modification are dealt with in separate

paragraphs: ‘until such time as notice may be given to terminate the
acceptance’ (withdrawal; second paragraph of the declaration), while eg
[t]he Government of Canada also reserves the right at any time, by means of a
notification addressed to the Secretary-General of the United Nations, and with
effect as from the moment of such notification, either to add to, amend or withdraw
any of the foregoing reservations, or any that may hereafter be
added’ (modification; third paragraph Declaration by Canada).
59 States usually see these issues as unrelated which can sometimes be troublesome given
that a declaration may address modification, but not withdrawal, eg the Declaration by
Malawi recognizing as compulsory the jurisdiction of the Court in conformity with Article 36
(2) Statute of the ICJ of 12 December 1966; Declaration by Senegal recognizing as
compulsory the jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ
of 2 December 1985. In such cases, it would seem in line with the considerations specific to
the ICJ Statute to apply the time period of modification to withdrawal, given that they are
essentially the same. Declarations that have a different time period, eg the Declaration by
Spain of 29 October 1990 that provides for a six months period for withdrawal and for
immediate effect in respect of modification, should be respected as long as the time periods
selected are valid (Törber, 2015, 278).
60 It may well be that declarations say nothing about their withdrawal or modification: 15
out of 73 declarations are silent on withdrawal and 22 out of 73 declarations are silent on
the modification of reservations. This does not mean that silent declarations preclude States
from modifying or withdrawing their declaration: if silent, a ‘reasonable time’ notice applies
(Nicaragua, 420).
61 When States select a time period for withdrawal, it is either at the time of reception by
the United Nations Secretary-General (immediate effect, the ‘until such time as notice may
be given’ formula), or on a six, or twelve, months’ notice.
62 As to modification, the picture is similar: three States have selected a six months’ time
period for modification, the others have chosen modification with immediate effect or are
silent about the issue. If silent, the default reasonable time notice’s rule applies. Aside from
Timor-Leste (Declaration by Timor-Leste recognizing as compulsory the jurisdiction of the
ICJ in conformity with Article 36 (2) Statute of the ICJ, 21 September 2012), States that
have made no reservations are all silent on the issue.
63 There are at least two occurrences where a State wanted to withdraw its declaration,
notwithstanding it did not contain a clause about withdrawal. The former declaration of
Paraguay made under the Permanent Court of International Justice (‘PCIJ’) was silent about
modifications and in 1938 some States initially successfully opposed its withdrawal (Maus,
1959, 76–77; Briggs, 1958, 273). This success was short-lived given that Paraguay was not
listed as a Party to Article 36 (2) ICJ Statute until it made a new declaration of acceptation
in 1996. So, under the ICJ Statute and modern practice, silent declarations do not preclude
States from withdrawing their declaration. The Declaration by Colombia of 30 October 1937
was withdrawn in 2001 despite this option not being enumerated in the text of the
declaration; the withdrawal prompted no reaction from the other States Parties.
64 Objections to new reservations or to an overwriting declaration were spotted in two

instances: firstly, between El Salvador and Honduras, and secondly between Nicaragua and
Costa Rica. On the 26 November 1973, El Salvador decided to overwrite its previous
declaration of 26 May 1930 (Declaration by El Salvador [‘1930 El Salvador Declaration’]),
and to add numerous reservations in respect of its 1930 declaration (Declaration by El
Salvador recognizing as compulsory the jurisdiction of the Court in conformity with Article
36 (2) Statute of the ICJ [‘1973 Declaration by El Salvador’], 26 November 1973). Honduras
objected in July 1974 (Objection by Honduras to the Declaration of El Salvador recognizing
as compulsory the jurisdiction of the ICJ, 3 July 1974) on the main ground that given the
absence of any time limit in the 1930 El Salvador Declaration, El Salvador could not avail
itself of the right to add new reservations. El Salvador answered to the objection in
September 1974 (Declaration by El Salvador relating to the objection notified by the
Government of Honduras on 3 July 1974, 9 September 1974). The answer included a
reappraisal of the Court’s practice on new reservations and showed that the Honduran
claim that a declaration cannot be modified is unsound and at variance with States’
practice. The new 1973 Declaration by El Salvador was deemed valid and replaced the 1930
one.
65 The Nicaragua and Costa Rica controversy led to a more original solution; on 23
October 2001, Nicaragua made a reservation ratione temporis covering treaties concluded
before 1902. The reservation was directly aimed at a potential dispute with Costa Rica and
prompted its objection in January 2002. In the end, the objection resulted in a three year
moratorium between the two States. In the Tovar-Caldera Agreement of 26 September
2002, Nicaragua accepted that its declaration stayed the same (without the new
reservation), and Costa Rica undertook not to file an application before an international
tribunal (third paragraph of the Tovar-Caldera Agreement). The moratorium period was but
one of the issues tackled by the bilateral treaty; overall it cost Nicaragua nothing to
suspend its reservation for three years given that Costa Rica renounced to file an
application to the ICJ for the same period. Costa Rica complied with the Tovar-Caldera
Agreement and filed an application against Nicaragua on 29 September 2005 (Navigational
and Related Rights, 2009, 219 and 231), only three days after the end of the moratorium
period instituted by the bilateral agreement.
66 So far, objections to reservations failed because they were ill-founded. Only objections
prompted by a violation of the ICJ Statute or of ius cogens may be successful (ILC Guiding
Principle No 8; Kolb, 2013, 501; Armed Activities, 33).
67 We will now dwell on the most sensitive issue regarding withdrawal and modification:
the legality of withdrawing or modifying declarations ‘with immediate effect’. The two
interconnected topics are, first, whether States may withdraw or modify their declaration
with effect on reception by the UN Secretary-General, and, second, if a clause of ‘immediate
effect’ is illegal, whether all or only a part of the declaration is void (severability of the
declaration).
68 On the first topic, with regard to an optional declaration not containing any time notice
for its termination or modification, the analogy with the law of treaties is striking (Art 56
VCLT). Indeed, the Court puts the emphasis on the requirement of a ‘reasonable time’ for
their withdrawal or modification (Nicaragua, 420). In consequence, the Court concluded
that: ‘the right of immediate termination of declarations with indefinite duration [and thus
not containing any specific time notice] is far from established. It appears from the
requirements of good faith that they should be treated, by analogy, according to the law of
treaties, which requires a reasonable time for withdrawal from or termination of treaties
that contain no provision regarding the duration of their validity’ (Nicaragua, 420)
(emphasis added). In brief, the immediate withdrawal of a declaration or its termination
within an ‘unreasonable’ time is invalid and the declaration continues to wield its legal
effects as to the jurisdiction of the Court.
69 Therefore, if the withdrawal of a unilateral declaration does not comply either with the
specific time notice or, failing that, with the general requirement of reasonable period of
time stemming from the principle of good faith, the jurisdiction of the Court, founded on the
declarations in point, is nonetheless established. Indeed, as the Court said: ‘according to its
settled jurisprudence, its jurisdiction must be determined at the time that the act instituting
proceedings was filed … On 17 October 2000, the date that the Congo’s Application
instituting these proceedings was filed, each of the Parties was bound by a declaration of
acceptance of compulsory jurisdiction, filed in accordance with [Art 36 (2) ICJ
Statute]’ (Arrest Warrant of 11 April 2000, 2002, 12–13).
70 The rationale of Nicaragua, 1984, was further elaborated in Land and Maritime
Boundary, 1998. The Court clung to its jurisprudence, notwithstanding Nigeria’s claim of it
being allegedly ‘out-dated’, and in a long paragraph that deserves to be reproduced in
extenso, affirmed:
The Court considers that the foregoing conclusion in respect of the withdrawal of
declarations under the Optional Clause is not applicable to the deposit of those
declarations. Withdrawal ends existing consensual bonds, while deposit establishes
such bonds. The effect of withdrawal is therefore purely and simply to deprive other
States which have already accepted the jurisdiction of the Court of the right they
had to bring proceedings before it against the withdrawing state. In contrast, the
deposit of a declaration does not deprive those States of any accrued right.
Accordingly, no time period is required for the establishment of a consensual bond
following such a deposit. The Court notes moreover that to require a reasonable
time to elapse before a declaration can take effect would be to introduce an element
of uncertainty into the operation of the Optional Clause system. As set out in
paragraph 26 above, in the case concerning the Right of Passage over Indian
Territory, the Court had considered that it could not create such uncertainty. The
conclusions it had reached then remain valid and apply all the more since the
growth in the number of States party to the Statute and the intensification of inter-
State relations since 1957 have increased the possibilities of legal disputes capable
of being submitted to the Court. The Court cannot introduce into the Optional
Clause an additional time requirement which is not there (Land and Maritime
Boundary, 295–96) (emphasis added).
71 The Court makes here a fundamental distinction between the withdrawal of a

declaration—and the corresponding requirement of good faith entailing the reasonable
lapse of time—and its deposit, in the light precisely of the rights affected by each of the two
acts. In one case, ie withdrawal, the termination affects ‘accrued rights’, that is to say
rights vested in those States which have made an optional declaration, whilst in the other
case, ie deposit, there are no such rights vested with these same States. Moreover, the
Court rightly highlights that, to affirm the opposite, would have engendered a ‘[further]
uncertainty’ in addition to the already existent ‘element of uncertainty’ inherent in the very
system of the optional clause.
72 The 1984 Nicaragua case is widely quoted when it comes to the ‘reasonable time
period’. However, it must be noted that the judgment only applies to declarations silent
about withdrawal. The Court did not address withdrawal with immediate effect when
expressly provided for in the declaration (Törber, 2015, 304). So far, the Court has never
expressly ruled out withdrawal with immediate effect (Törber, 2015, 307). It is among
scholarly works that the ban on immediate effect appears and that the ‘reasonable period’
is sometimes equated to a minimum six months’ period. The main grounds to discard
immediate effect according to scholarly works revolve around the intrinsic logic of optional
clause declarations and of the ICJ Statute, as well as a parallel with treaty law (Art 56
VCLT).
73 The parallel with treaty law (Törber, 2015, 309) was initiated in Nicaragua (Nicaragua,
420) and we will not dwell more on it (see sec B.2, above, ‘The Relevance of Treaty Law or
the Optional Clause as an “Agreement”’) but mention that treaties which are not concluded
for a fixed time may be nonetheless terminated (Art 56 (2) VCLT).
74 To some extent, scholarly works also draw on Nicaragua, 1984, to explain why
withdrawal with immediate effect is void. Törber refers to various authors and makes a
clear case that a declaration providing for immediate effect goes against the grain of the
ICJ’s Statute and allowing them would in the end undermine the ICJ’s jurisdiction (2015, at
216). If allowed, withdrawal with immediate effect would jeopardize the functioning of the
ICJ (Törber, 2015, 218). In conclusion, withdrawal (or modification) with immediate effect
may be void and is severable from the rest of the declaration (Kolb, 2013, 525 and 528).
75 The equation of a ‘reasonable time period’ to six months does not flow from an ICJ
ruling or from the ICJ Statute. If the analogy with treaty law were strict, a twelve month
period would be the rule (Art 56 (2) VCLT). Since the analogy with treaty law is, though,
imperfect, it is on grounds related to the ICJ Statute and to principles surrounding the
Court’s jurisdiction that the ‘reasonable time period’ must be assessed. For instance, Kolb
emphasizes that the time period must ‘prevent undesirable ad hoc manipulation’ (Kolb,
2013, 524).
76 The Declaration by Spain of 29 October 1990 takes advantage of the uncertainty about
the time period (third paragraph of the declaration) (Alexandrov, 1995, 66). However, and
according to Kolb, given that the most recent declarations that specify a time period
provided for six months—and that these declarations were not challenged by other States
Parties—a six months’ notice established itself as more in line with the ICJ Statute
principles (Kolb, 2013, 524).
77 There is an exception to the prohibition of immediate withdrawal. Erasing a reservation

may be done with immediate effect on reception by the UN Secretary-General since it has
the consequence of widening the scope of jurisdiction of the Court. Widening the scope of
jurisdiction is considered as being in line with the ICJ Statute principles (Kolb, 2013, 463).
78 If clauses providing for immediate withdrawal of reservation or declaration are null,

what does that mean for the rest of the declaration? Does the whole declaration become
ineffective or only the ‘immediate effect’ part? Bearing in mind the analogy to treaty law,
the answer lies in the severability (or ‘separability’) of the clause (Art 44 VCLT; Kolb, 2013,
528). Article 44 (3) VCLT reads as follows: ‘[i]f the ground relates solely to particular
clauses, it may be invoked only with respect to those clauses where: (a) the said clauses are
separable from the remainder of the treaty with regard to their application; (b) it appears
from the treaty or is otherwise established that acceptance of those clauses was not an
essential basis of the consent of the other party or parties to be bound by the treaty as a
whole; and (c) continued performance of the remainder of the treaty would not be unjust’.
The three conditions that have to be fulfilled in order to allow the severability. For our
subject matter—severability of clauses relating to immediate withdrawing or modification—
conditions (a) and (c) are unproblematic. According to Kolb the major burden lies with
condition (b), the clause as an ‘essential basis of the consent’ (2013, at 528). Only a close
examination of the wording and preparatory works of the declaration can shed light on the
immediate effect as an ‘essential basis of the consent’.
79 The issue of severability has been thoroughly tackled by Judge Hersch Lauterpacht in a
1957 separate opinion. More specifically, he addressed the severability of a self-judging
domestic jurisdiction reservation (→ Connally Reservation). He concludes by writing that:
‘[i]t might perhaps be possible—I express no view on the subject—to disregard and to treat
as invalid some other reservation which is contrary to the Statute and thus to maintain the
Acceptance as a whole. This is not possible with regard to a reservation directly referring to
and excluding the jurisdiction of the Court’ (Certain Norwegian Loans, Judgement
(Separate Opinion of Judge Lauterpacht), 1957, 59) (emphasis added). For Lauterpacht, the
Connally reservation is not severable from the declaration given that it is an essential
motive in the French acceptance of the Court’s jurisdiction (Certain Norwegian Loans,
Judgement (Separate Opinion of Judge Lauterpacht), 59). The nullity of the specific
reservation thus affects the whole declaration, which does not exist (Certain Norwegian
Loans, Judgement (Separate Opinion of Judge Lauterpacht), 66).
80 For all other reservations or elements under the threshold of being an ‘essential part’ of
the declaration, partial severability is allowed. For instance, Kolb argues that provisions
allowing withdrawal with immediate notice are void and can be severed (2013, at 528). In
opposition to this view, Lamm underlines that severing an invalid reservation should not be
allowed since it results in widening the Court’s Jurisdiction without the State’s consent
(2014, at 218).
G. Taxonomy of Reservations
81 The traditional categories of reservations are time-related (ratione temporis), State-
related (ratione personae), and matter-related (ratione materiae). Not all reservations fit
perfectly into one of the three categories. For the most part, reservations are not unique;
we can find them in more than one declaration. It must be acknowledged that the names of
the reservations are not uniform in the scholarly writings, for example the ‘anti-ambush’
reservation and the ‘twelve month’ reservations are one and the same (Kolb, 2013, 470;
Törber, 2015, 116–19). We will sometimes specify what the ‘default regime’ is if there were
no reservations.
1. Reservations Ratione Temporis

(a) Narrowly Defined
82 These reservations aim to exclude disputes, facts and situations, or treaties, which
existed prior to a certain date. Since States benefit from a wide margin of appreciation,
they are free to mix reservations ratione temporis and materiae. For instance, Portugal
excluded disputes related to ‘territorial titles or rights or to sovereign rights or jurisdiction,
arising before 26 April 1974 or concerning situations or facts prior to that
date’ (Declaration of 25 February 2005). Only a close reading can tell us which kind of
reservation was made. Reservations ratione temporis are very common, with around 35
declarations including it. In the absence of such reservations, the ICJ’s jurisdiction will
encompass any dispute whatsoever, even if the dispute may be traced back well before the
deposit of the declarations concerned—see the Declaration by Suriname Declaration
Statute of the ICJ of 31 August 1987.
83 The simplest formula is usually found in the preamble of the declaration, next to the
acceptance of compulsory jurisdiction: ‘over all disputes arising after the present
declaration with regard to situations or facts subsequent to this declaration’ (Declaration by
Canada). Without any other details, the date of reception constitutes the dies a quo.
Otherwise, that date can be freely chosen by the State concerned: eg a specific date around
the time of deposit or any other date before (date of independence: Declaration by Nigeria
recognizing as compulsory the jurisdiction of the ICJ in conformity with Article 36 (2)
Statute of the ICJ [‘Declaration by Nigeria’], 30 April 1998; Declaration by Cyprus;
Declaration by Kenya recognizing as compulsory the jurisdiction of the ICJ in conformity
with Article 36 (2) Statute of the ICJ [‘Declaration by Kenya’], 19 April 1965; Declaration by
Sudan).
84 States’ genius in respect of this type of reservation has gone a long way, constructing
what can be termed double reservation ratione temporis, as opposed to simple reservation
ratione temporis that only exclude disputes arising after the declaration (Maus, 1959, 133–
45). This reservation is also known as the ‘Belgian formula’ since it originated in the 1925
PCIJ declaration of Belgium (Alexandrov, 1995, 40).
85 Indeed, while in the latter case the reservation takes into account the date of the
emergence of the dispute only, in its double version such as the Declaration by Canada, the
State adds a further limitation to the ICJ’s jurisdiction thus restricting it even more, also
encompassing disputes arising out of facts and situations before that (same) date (see in
this regard Art 27 (a) European Convention for the Peaceful Settlement of International
Disputes).
86 In the Phosphates in Morocco case before the PCIJ, France’s declaration of acceptance
contained precisely such a double reservation ratione temporis: ‘[t]he French Government
bases its objection on the following passage in its declaration: ‘‘in any disputes which may
arise after the ratification of the present declaration with regard to situations or facts
subsequent to this ratification’’’ (Phosphates in Morocco, 1938, 22). This double temporal
lock required thus, for the Court to entertain the claim based under the French declaration
(the defendant), that the applicant (Italy) managed (but it didn’t eventually) to convince the
Court that the dispute not only arose after the date of the deposit of the French declaration
but also that it originated in ‘situations and facts’ having occurred also before that date;
thence the ‘double’ label attached to this kind of reservation.
87 States are particularly fond of this type of reservation: 22 declarations contain this
reservation ratione. Under the ICJ, the effect of the clause was illustrated in Legality of Use
of Force, 1999. Yugoslavia accepted the Court’s competence according to the Belgian
formula (Legality of Use of Force, 550). Yugoslavia then argued that the Court was
competent to consider all bombing attacks carried out by NATO member States after the
date of its declaration (Legality of Use of Force, 551). The ICJ ruled that the NATO bombing
had to be considered as a whole, hence rejecting the provisional measures sought by
Yugoslavia (Legality of Use of Force, 552).
88 The dies a quo has to be determinable: some declarations refer to ‘the date of
independence’ (Declaration by Nigeria; Kolb, 2013, 469) which is not always clear cut (date
of overthrow of the old regime, date of formal independence, date chosen by the new State).
Another example is the Declaration by the Netherlands, which chose a travelling (or
‘mobile’) dies a quo linked to the date of application: ‘disputes arising out of situations or
facts that took place no earlier than one hundred years before the dispute is brought before
the said Court’ (emphasis added).
(b) The ‘Anti-Ambush Application’ Reservation

89 Aside from the stricto sensu ratione temporis reservations just described, there exist
reservations that are not related to the date of the dispute, but which use a time frame in
order to eschew the ICJ’s jurisdiction. The goal of the reservation is to alleviate the effect of
the immediate entry into force of a new declaration. The Right of Passage over Indian
Territory case prompted this reservation: India was drawn before the ICJ by Portugal thanks
to a distorted utilization by the applicant of the optional declaration. Indeed, Portugal had
in quite a short lapse of time (three days) carried out all the required steps to bring a
dispute before the ICJ.
90 With such a reservation, States that have issued a declaration have to wait a year (or
whatever the duration of the anti-ambush clause) before filing an application. On account of
reciprocity and if the clause is invoked, the States already party to the system of Article 36
(2) ICJ Statute also have to wait one year before filing an application. This clause also
allows a State to withdraw its declaration before the newcomer files an application. Twenty-
three out of 73 declarations include this reservation.
91 The formula is the following: ‘where the acceptance of the Court’s compulsory
jurisdiction on behalf of any other party to the dispute was deposited or ratified less than
twelve months prior to the filing of the application bringing the dispute before the
Court’ (Declaration by Greece). It is worth observing that this reservation is most of the
time coupled with the ‘single dispute’ reservation. This makes sense since the general
purpose of these two reservations (anti-ambush and single dispute) is to avoid an
unforeseen dispute before the ICJ or its instrumentalization to the benefit of a newcomer
State.
2. Reservations Ratione Personae

(a) The Commonwealth Reservation
92 Reservations ratione personae aim at defeating the Court’s jurisdiction on the grounds
of the States which are parties to the dispute. First and foremost, we have to cite the
‘Commonwealth reservation’, that is to say, the reservation by members (or former
members) of this international organization by which the State in point either prefers a
specific dispute mechanism (such as the Privy Council in London) or refuses outright a
judicial means of dispute settlement. In the latter case, the reservation is often framed in
the following terms: ‘disputes with the government of any State which is or has been a
Member of the Commonwealth of Nations’ (Declaration by India). The formula ‘is or has
been’ is important (Maus, 1959, 146). Gambia also made a Commonwealth reservation but
withdrew from the Commonwealth in 2013. Its declaration plainly recites: ‘[d]isputes with
any country in the Commonwealth’ (Declaration by Gambia recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ, 22 June 1996). The
effect of the clause is wide given that as of September 2017, 52 States are members of the
Commonwealth and eight States have made this reservation.
93 This reservation is still highly relevant nowadays: the Jadhav Case, 2017, between India
and Pakistan could be affected by this reservation. In 2000, the reservation was successfully
invoked by India (Aerial Incident of 10 August 1999, 2000, 25–26 and 32 [‘Aerial Incident’]).
Among other arguments that did not convince the Court, Pakistan asserted that the
Commonwealth reservation had fallen into desuetude (Aerial Incident, 27). The Declaration
by the United Kingdom of 22 February 2017 still includes the reservation. The reservation
prevented from the start Mauritius filing an application against the United Kingdom
relating to the separation of the Chagos Archipelago from Mauritius (both States having
made a Commonwealth reservation). Instead, the UN General Assembly requested an
advisory opinion from the ICJ (Legal consequences of the separation of the Chagos
Archipelago from Mauritius in 1965, 2017).
94 Although not a Commonwealth reservation, it is also worth mentioning the Irish

declaration of 15 November 2011: ‘with the exception of any legal dispute with the United
Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland’.
(b) The Diplomatic Relations, Non-Sovereign States, and Unrecognized States

Reservations
95 Reservations dealt with in this section share the common goal of avoiding disputes
between States or entities not entertaining diplomatic relations. They are only found in the
Declaration by India (18 September 1974), Declaration by Nigeria (30 April 1998), and
Declaration by Djibouti (2 September 2005). For India, its declaration recites: ‘(8) disputes
with the Government of any State with which, on the date of an application to bring a
dispute before the Court, the Government of India has no diplomatic relations or which has
not been recognized by the Government of India; (9) disputes with non-sovereign States or
territories’.
96 The grounds of the lack of diplomatic relations reservation are easy to understand.
What is more difficult to assess is what ‘no diplomatic relations’ means. Is it no embassy, or
is it no bilateral treaties, or even no relations at all between the two States? The matter is
left open as no dispute has raised this issue so far.
97 The same applies to the lack of recognition: does it refer to an express recognition, or
also encompasses a tacit recognition? There is hitherto no case law on this matter.
98 The last reservation is a source of wonder: ‘disputes with non-sovereign States or

territories’. In effect, the practical usefulness of this clause may easily be challenged. If the
State in point is party to the ICJ Statute (Art 34), the declarant State cannot by dint of this
reservation exclude the jurisdiction of the Court; to do so it should have framed its
declaration by relying on the lack of (State) recognition, if applicable. Therefore, as such
this limitation is void of any practical effect since either it is contrary to the ICJ Statute or it
merely reaffirms what the latter says (and it is thus redundant).
3. Reservations Ratione Materiae

99 This is by far the most common and larger category. The goal of reservations ratione
materiae is to exclude specific subject-matter disputes from the ICJ’s jurisdiction. We will
cluster together reservations that share a common denominator.
(a) ‘Disputes’ Reservations

100 Under this heading, we list three types of reservations: the ones safeguarding other
means of peaceful settlement, the ones excluding the ICJ’s jurisdiction in favour of other
international bodies, and the ones excluding jurisdiction for a ‘single dispute’.
101 As to the first one, a State can for instance exclude disputes for which another
‘dispute resolution mechanism’ may be available and accordingly triggered. The Declaration
by Germany recognizing as compulsory the jurisdiction of the Court in conformity with
Article 36 (2) Statute of the ICJ (‘Declaration by Germany’) of 1 May 2008 may be cited as
an illustration of this kind of reservation: ‘any dispute which the Parties thereto have
agreed or shall agree to have recourse to some other method of peaceful settlement or
which is subject to another method of peaceful settlement chosen by the Parties’. This
reservation is moreover in line with Arts 2 (3) and 33 United Nations Charter enshrining the
principle of the free (common) choice of peaceful means of dispute settlement (Maus, 1959,
123). This reservation is quite common given that 36 out of 73 declarations include it. And
it is also of a narrow reaching scope since it structures the peaceful modes of settlement
rather than restrict the ICJ’s jurisdiction (Kolb, 2013, 465).
102 Side by side with this reservation, a similar formula exists: ‘disputes the resolution of
which the parties shall entrust to other tribunals by virtue of agreements already in
existence or which may be concluded in the future’ (Declaration by Pakistan). A few
declarations (five) encompass this reservation whose goal is to give priority to arbitration
clauses or compulsory dispute settlement clauses (such as the WTO’s Dispute Settlement
Understanding) contained in treaties (Maus, 1959, 122).
103 It is also an option to exclude the ICJ’s jurisdiction following a treaty’s provision:
‘disputes relating to any matter excluded from compulsory adjudication or arbitration under
any treaty, convention or other international agreement or instrument to which Malta is a
party’ (Declaration by Malta recognizing as compulsory the jurisdiction of the Court in
conformity with Article 36 (2) Statute of the ICJ [‘Declaration by Malta’], 6 December 1966).
The Declaration by Cambodia, Declaration by Mauritius recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ (‘Declaration by
Mauritius’) of 23 September 1968, and Declaration by Lithuania recognizing as compulsory
the jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ of 21
September 2012 have a similar reservation.
104 More commonly, the reservation to exclude the ICJ’s jurisdiction is framed in the spirit
of the anti-ambush reservation and aims to avoid an instrumentalization of the Court:
‘disputes in respect of which any other Party to the dispute has accepted the compulsory
jurisdiction of the International Court of Justice only in relation to or for the purposes of the
dispute’ (Declaration by Malta).
105 The 21 States having made this ‘single dispute’ reservation thus avoid that a claimant
accepts the ICJ’s jurisdiction on an extremely narrow basis (Kolb, 2013, 471). On the
systematic plane, this reservation goes hand in hand with the anti-ambush reservation as
the two are usually included in the same paragraph. We may wonder when exactly a
declaration is framed for the purpose of bringing one specific dispute before the Court. It
may not be the case with the Declaration by Egypt that encompasses all disputes related to
the Suez Canal, but it may be the case with the Equatorial Guinea declaration that recites:
‘all disputes relating to the privileges and immunities of States, senior State officials and
State property’ (Declaration by Equatorial Guinea recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ [‘Declaration by
Equatorial Guinea’], 11 August 2017). The Declaration by Equatorial Guinea itself is
preceded by an introductive letter that reads as follows:
[o]n behalf of the Ministry of Foreign Affairs and Cooperation, for the record, I have
the honour to attach herewith the Declaration by the Republic of Equatorial Guinea
under article 36 (2), of the Statute of the International Court of Justice on all
disputes relating to the privileges and immunities of States, senior State officials
and State assets, on the occasion of the trial, in Paris, of the Vice President of the
Republic, Teodoro Nguema Obiang Mangue (Depositary Notification by the
Secretary-General, 30 August 2017) (emphasis added).
On this account, the Declaration by Equatorial Guinea may fit the definition of a ‘single
dispute’ reservation.
(b) ‘Escape’ Reservations

106 By ‘escape’ reservations we mean that the declarant State frames a way to avoid the
ICJ’s jurisdiction at will. If granted, these reservations deeply paralyze the system of Article
36 (2) ICJ Statute. They are of two kinds: the ‘domestic jurisdiction’ reservation, and the
‘multilateral treaties’ reservation, the latter also being labelled the ‘Vandenberg
reservation’ (Kolb, 2013, 467; Lamm, 2014, 200; Törber, 2015, 138).
107 In the first reservation, States try to exclude from the Court’s jurisdiction disputes
bearing on the domestic (or national) jurisdiction. The reservation reads as follows:
‘disputes with regard to questions which by international law fall exclusively within the
jurisdiction of Malta’ (Declaration by Malta). Albeit being particularly popular among States
(23 occurrences), this kind of limitation raises some questions: it has to be remembered
that the Court may only entertain claims which are based on the existing rules of public
international law (Briggs, 1958, 363). Hence, according to the → jura novit curia principle
as well as in accordance with Article 36 (6) ICJ Statute (→ Competence-competence) and
Article 53 ICJ Statute, the Court has the exclusive competence of determining whether or
not the dispute submitted to it does or doesn’t fall within the States concerned domestic
jurisdiction (Farmanfarma, 1952, 123; Alexandrov, 1995, 75; Thirlway, 2013, 757–58). In so
doing, the Court must decline its jurisdiction if the dispute falls ‘essentially within the
domestic jurisdiction of’ the State concerned (Art 2 (7) United Nations Charter)
(Farmanfarma, 1952, 89).
108 Where the boundary between international and national law (reserved domain of the
State) lies is a question of public international law (Nationality Decrees Issued in Tunis and
Morocco, 1923, 24). But even absent a reservation on domestic jurisdiction, this question is
automatically tackled by the Court in a given case (Farmanfarma, 1952, 93). Indeed, the
Court can only pronounce itself if the matter is international in nature, or, put differently, if
the issue at hand is encompassed by public international law rules (Certain Norwegian
Loans, Judgement (Separate Opinion of Judge Lauterpacht), 37–38). In the end, a domestic
jurisdiction reservation offers to the State an opportunity to ask the Court to explicitly
verify the boundaries of public international law, an evaluation that the Court always has to
make in order to apply the relevant law (Maus, 1959, 112). According to Kolb, ‘this
reservation therefore does not have any tangible legal value’ (2013, at 466–67).
109 There is another, harder, version of the reservation, the aforementioned Connally
reservation, which reads as follows: ‘[d]isputes with regard to matters which are essentially
within the domestic jurisdiction of the United States of America as determined by the
United States of America’ (Declaration by the United States of America recognizing as
compulsory the jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ,
14 August 1946). The wording is self-judging: States that make such a reservation put
themselves in a position to decide whether or not the issue may be entertained by the Court
(Certain Norwegian Loans, 21 and 27). As the Connally reservation is discussed elsewhere
(see eg para 79 above), we will not dwell further on it here.
110 Similar to this ‘domestic jurisdiction’ reservation is the ‘national security’ reservation;
it is as elusive and deceptive in nature (Alexandrov, 1995, 91). The Declaration by Pakistan
of 29 March 2017 reads as follows: ‘all matters related to the national security of the
Islamic Republic of Pakistan’. The sensitive issue is to define the precise scope of ‘national
security’. The Jadhav Case (Jadhav Case, 2017) may shed light on this notion.
111 In the second kind of ‘escape’ reservations, a few States (five occurrences) have
strived to exclude disputes arising from the interpretation and application of multilateral
treaties. In other words, if the Court established its jurisdiction it cannot rely on this kind of
international agreement in order to settle the difference between the States concerned.
Aptly labelled the ‘Vandenberg reservation’ after the name of the United States Senator
who was its initiator, its exact scope of application was elucidated by the Court in its
landmark judgment in the 1984 Nicaragua case. The reservation purported to exclude from
the jurisdiction of the Court ‘disputes arising under a multilateral treaty, unless (1) all
parties to the treaty affected by the decision are also parties to the case before the Court,
or (2) the United States of America specially agrees to jurisdiction’ (Nicaragua, 421–22).
112 Specifically to the case in point, the Court recalled that Nicaragua’s claims were not
confined to multilateral agreements but the claimant ‘invokes [that] a certain number of
principles of customary and general international law [had] been violated by the United
States’ (Nicaragua, 424). Therefore, the reservation has no impact on these principles on
account that they (also) stem from custom and not (only) from multilateral agreements.
113 More generally, the Court conspicuously diluted the practical effect of the Vandenberg
reservation through its interpretation of the words ‘all parties to the treaty affected by the
decision’. The Court, by claiming that the ‘determination of the States ‘affected’ could not
be left to the parties [in the case in point notably to the defendant, ie USA] but must be
made by the Court’, added that ‘this is a question concerning matters of substance relating
to the merits of the case [and not] in itself a jurisdictional problem’ (Nicaragua, 425).
114 Another, stronger, version of the Vandenberg reservation exists that reads as follow:
‘disputes concerning the interpretation or application of a multilateral treaty unless all the
parties to the treaty are also parties to the case before the Court’ (Declaration by Djibouti)
(emphasis added). The verb ‘affected’ disappears, leaving no room for interpretation
(Lamm, 2014, 202–7). India and the Philippines have also chosen this wording (Declaration
by India of 18 September 1974 and Declaration by the Philippines of 18 January 1972).
(c) ‘Spatial’ Reservations

115 This set of reservations deals with the different spaces under State’s sovereignty
(Alexandrov, 1995, 95). They mostly deal with the delimitation of boundaries or the
exploitation of the territorial sea. The same State usually makes a reservation for its
territory, sea, and aerial space.
116 For instance, the Declaration by Djibouti of 2 September 2005 reads as follows:
‘[d]isputes with the Republic of Djibouti concerning or relating to: (a) [t]he status of its
territory or the modification or delimitation of its frontiers or any other matter concerning
boundaries; (b) [t]he territorial sea, the continental shelf and the margins, the exclusive
fishery zone, the exclusive economic zone and other zones of national maritime jurisdiction
including for the regulation and control of marine pollution and the conduct of scientific
research by foreign vessels; (c) [t]he condition and status of its islands, bays and gulfs; (d)
[t]he airspace superjacent to its land and maritime territory; and (e) [t]he determination
and delimitation of its maritime boundaries’. The reservations are thus far-fetched; every
single spatial category is enumerated, up to ‘bays and gulfs’ (Art 10 UN Convention on the
Law of the Sea). The overall goal is clearly to avoid disputes relating to a specific space
with a special emphasis on delimitation. States can put disputes arising in spaces outside of
their competence—eg the high sea—outside of the Court’s jurisdiction (Fisheries
Jurisdiction, para 74).
117 The will to avoid territorial disputes aside, some States have made reservations
relating to: ‘any dispute arising out of, concerning, or relating to research on, or
conservation, management or exploitation of, living resources of the sea’ (Declaration by
Japan). Whatever the formula adopted, the goal is to keep control of the resources of the
sea. In the case of Japan, the reservation appeared shortly after Whaling in the Antarctic,
2014.
(d) ‘Use of Force’ and ‘Military’ Reservations

118 This set of reservations deals with various topics more or less connected to the use of
force between States, or to military issues.
119 The Declaration by Mauritius of 23 August 1968 reads as follows: ‘disputes concerning
any question relating to or arising out of belligerent or military occupation or the discharge
of any functions pursuant to any recommendation or decision of an organ of the United
Nations, in accordance with which the Government of Malta have accepted obligations’. The
Declaration by Kenya and Declaration by Malta encompass this reservation as well. Given
the period, this reservation seems to have been prompted by the advisory opinion in Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), 1971 (→ South West Africa/
Namibia (Advisory Opinions and Judgments)). The reservation’s scope is twofold: it
addresses ‘belligerent or military occupation’ and deals with the implementation of United
Nations policy. The Court is deprived of jurisdiction whenever the State troops are outside
its territory. The State does not want to bear responsibility when it acts in the framework of
the United Nations decisions or recommendations.
120 Romania made a similar reservation on 23 June 2015:
any dispute relating to, or connected with, hostilities, war, armed conflict, individual
or collective self-defense or the discharge of any functions pursuant to any decision
or recommendation of the United Nations, the deployment of armed forces abroad,
as well as decisions relating thereto.
121 The Declaration by Greece of 14 January 2015 is a variation on this theme but does
not refer to international organizations: ‘any dispute relating to military activities and
measures taken by the Hellenic Republic for the protection of its sovereignty and territorial
integrity, for national defense purposes, as well as for the protection of its national
security’. Here, the focus is on the ‘measures’ taken by the State outside of its capacity of
member of an international organization. Originally, the reservations dealing with the use of
force were aimed at avoiding disputes arising out of the Second World War (Maus, 1959,
143).
122 Germany has made a reservation relating to: ‘the use for military purposes of the
territory of the Federal Republic of Germany, including its airspace, as well as maritime
areas subject to German sovereign rights and jurisdiction’. Romania made a similar
reservation. Germany’s reservation covers both the acts of the German army and the
accountability of Germany for the acts of a foreign army with a military base on its soil
(such as a United States air base).
(e) ‘Environmental Protection’ Reservations

123 These reservations are quite short and do not elaborate on the notion of environment:
‘any dispute regarding to the protection of the environment’ (Declaration by Romania
Statute of the ICJ [‘Declaration by Romania’], 23 June 2015). As of September 2017, they
are found in three declarations (Declaration by Slovakia recognizing as compulsory the
jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ, 28 May 2004;
Declaration by Poland recognizing as compulsory the jurisdiction of the Court in conformity
with Article 36 (2) Statute of the ICJ, 25 March 1996; Declaration by Romania). References
to the ‘marine environment’ could also be found in ‘spatial’ reservations, but in the present
category, the reservation encompasses the entire environment, not just the marine one or
transboundary damages (Kolb, 2013, 469). As of 2017, there was no case law relating to
this reservation. The reservation of Slovakia may have been inserted in order to avoid a new
case relating to the Gabčíkovo-Nagymaros lock system (Gabčíkovo-Nagymaros Project,
1997) (→ Gabčíkovo-Nagymaros Case (Hungary/Slovakia)).
(f) Sundry Reservations

124 Some reservations are unique: they are not found in any other declaration and they do
not fit in any of the sub-categories previously listed. The underpinning of these declarations
may be to avoid a specific dispute, or they are just general in nature.
125 The reservation of Poland relating to ‘foreign liabilities or debts’ is generic in nature.
This means that financial engagements of Poland may not be settled before the ICJ (Kolb,
2013, 468).
126 Canada made a very specific reservation that requires a careful reading:
disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as
defined in the Convention on Future Multilateral Co-operation in the Northwest
Atlantic Fisheries, 1978, and the enforcement of such measures’ (Declaration by
Canada).
In the end, the scope of the Canadian reservation is to avoid disputes based on the
implementation of a specific treaty as explained in the 1998 ICJ case between Spain and
Canada (Fisheries Jurisdiction, para 74).
127 The Declaration by the United Kingdom was a clear reaction to the nuclear
nonproliferation case brought by the Marshall Islands (Nuclear Disarmament): ‘(v) any
claim or dispute in respect of which the claim or dispute in question has not been notified to
the United Kingdom by the State or States concerned in writing, including of an Intention to
submit the claim or dispute to the Court failing an amicable settlement, at least six months
in advance of the submission of the claim or dispute to the Court; (vi) any claim or dispute
that arises from or is connected with or related to nuclear disarmament and/or nuclear
weapons, unless all of the other nuclear-weapon States Party to the Treaty on the Non-
Proliferation of Nuclear Weapons have also consented to the jurisdiction of the Court and
are party to the proceedings in question’. Both reservations were added in 2017. Number
(v) has a wide scope, but would have prevented the nuclear non-proliferation case (Nuclear
Disarmament). As to number (vi), the ground of such a reservation is crystal clear once the
case comes to mind.
128 It must be stated that reservations made in order to escape a specific dispute are not
void as States are free to accept the ICJ’s jurisdiction within the envisioned boundaries.
States that made their declaration conditional to express renewal did not hesitate to leave
the Court after they ‘lost’ a case. For instance, Thailand did not renew its ten year
declaration after the Temple of Preah Vihear case (Temple of Preah Vihear, 1962, 36;
Declaration by Thailand, 20 May 1950). On the other hand, declarations made with a view
to quickly filing an application are not illegal. States that want to avoid that can make an
‘anti-ambush’, or a ‘single dispute’ reservation. Portugal adopted a surprise strategy in the
Right of Passage over Indian Territory case; it almost simultaneously accepted the ICJ’s
jurisdiction and filed its application. The Marshall Islands submitted its declaration on 24
April 2013, and, due to anti-ambush reservations of the defendant States, filed its
applications on 24 April 2014 against India, Pakistan, and the United Kingdom. This shows
that—like Marshall Islands—States that want to file an application can find a way to submit
the case, even if a long wait is necessary.
H. Nullity and Interpretation of Reservations

129 Reservations may be affected by nullity (Kolb, 2013, 499). Up to September 2017,
there is no case law on such a nullity. The Court had the occasion twice to pronounce on it,
but refrained from assessing the validity of the reservation given that the parties did not
challenge it (Certain Norwegian Loans, 27; Fisheries Jurisdiction, 451 and 455–56). For its
part the European Court of Human Rights already engaged in the nullity of reservation in
two cases (Bellilos v Switzerland, 1998, paras 50 ff; Loizidou v Turkey, 1995; → Loizidou
Case, paras 65 ff). For the most part, the same considerations elaborated prior in section F
above, ‘Withdrawal and Modification of Optional Clause Declaration’, are applicable to the
nullity of reservations.
130 Short of nullity, the Court has found other ways to avoid a decision on the legality of a
reservation, or not to apply the reservation altogether. In the → Norwegian Loans Case, the
Court was facing a Connally reservation (a kind of ‘self-judging’ or ‘automatic’ reservation)
(Certain Norwegian Loans, 21). Given that neither State invoked the nullity of the
reservation, the Court limited itself to a finding of lack of jurisdiction. In the Nicaragua case
(Nicaragua, 421–25), the Court, facing the first version of the Vandenberg reservation
(States ‘affected’ by a multilateral treaty), interpreted the reservation in the framework of
the ICJ Statute, and notably of the right to intervene (Art 62 ICJ Statute), in such a way to
put it under its jurisdiction.
131 Overall, the Court can easily find a way to narrow the scope of a reservation, or not to
pronounce on its validity. A finding of nullity is a last resort device and has to be avoided
since it can prompt a domino effect of withdrawal of declarations, which would ultimately
harm the jurisdiction of the Court.
132 Reservations have to be interpreted in order to delimit their scope. Flowing from the
position that envisions an optional clause as an ‘agreement’, rules on treaty interpretation
apply to Article 36 (2) ICJ Statute declarations (Törber, 2015, 160). This means that the
Court can rely on Articles 31 (general rule of interpretation), 32 (supplementary means of
interpretation), and 33 VCLT (interpretation of treaties authenticated in two or more
languages) when facing optional clause declarations.
133 Specific considerations pertaining to optional clause declarations override treaty rules
on interpretation (Fisheries Jurisdiction, para 46; Törber, 2015, 144 and 160), but case law
does not show conspicuous occurrences of such variance.
134 A translation of the declaration, unless authoritative under the terms of Article 33
VCLT, must not be used, eg the Declaration by Costa Rica recognizing as compulsory the
jurisdiction of the ICJ in conformity with Article 36 (2) Statute of the ICJ, 20 February 1973,
was in Spanish and then translated by the Registrar. States are permitted to file a
declaration in whatever language they please (Kolb, 2013, 457; Temple of Preah Vihear,
1961, 32; Declaration by Brazil, in Portuguese). The Declaration by Germany was
authentically filed in German and English.
135 Nonetheless, some elements are of peculiar importance to optional clause declarations
and may bear on the interpretation process. For instance, States copy the previous
declarations of other States since original formulae are a risk given that it is unpredictable
how the ICJ will interpret them. This may lead to a kind of ‘transversal’ interpretation: a
reservation is not interpreted in isolation, but in comparison to other similar reservations:
eg, in a ratione temporis reservation, does the State only exclude previous disputes, or also
previous ‘facts and situations’ (Belgian formula). Past or incoming disputes have to be taken
into account (they already are in Article 31 VCLT relating to the ‘context’): they explain and
shape the reservations made in order to avoid the same dispute (or to dodge an incoming
application). Another example: the four classes of disputes listed in Article 36 (2) ICJ
Statute are underpinned by historical reasons; they thus cannot be interpreted as
reservations when they are copied in a declaration.
I. Appraisal
136 Overall, optional clause declarations are complex. From their nature (unilateral acts
having treaty-like effects) to their duration, every step in their making, wording, and
withdrawal raises numerous issues. The ICJ Statute gives little to no help in finding clear-
cut solutions: it only provides general guidelines as to what is allowed. Case law has
clarified the limits in framing an acceptance of the Court’s jurisdiction. In so doing, the ICJ
has refrained from deciding on sensitive issues like the nullity of self-judging domestic
jurisdiction (Connally reservation) or the possibility to withdraw a declaration with
immediate effect. Looking at the numbers, 28 of the 138 contentious cases submitted to the
Court were based exclusively on optional clause declarations (ICJ Yearbook 2015–2016, 61).
This head of jurisdiction ranks second, behind the 50 contentious cases submitted thanks to
a compromissory clause (ICJ Yearbook 2015–2016, 61). It must also be noted that 23 cases
were submitted on the account of both a compromissory clause and an optional clause
declaration (ICJ Yearbook 2015–2016, 61).
137 Reciprocity and reservations are the key components of optional clause declarations.
Their interplay defines the scope of the Court’s jurisdiction. All kinds of reservations may be
made as long as they stay within the ambit of the ICJ Statute’s provisions. Indeed, States
have created many different reservations. Some of them exclude jurisdiction on account of
the time of the dispute, some others on the personality of the defendant, and, finally, the
bulk of reservations are related to the material scope of the dispute (environmental matters,
use of force, etc). Reciprocity allows a State to use its adversary’s reservations in order to
shield itself from the Court’s jurisdiction. Reciprocity only applies to reservations—not to
provisions on duration, withdrawal, and modification.
138 In the ICJ Statute’s system, optional clause declarations are but one of the bases of
consensual jurisdiction of the Court (Kolb, 2013, 375–77). Their characteristic feature is
that once made, every other State can take advantage of them on condition of accepting the
compulsory jurisdiction too. Article 36 (2) ICJ Statute thus creates a ‘network’ of
jurisdiction between States, akin to a multilateral treaty.
139 States are completely free to accept, or not, the compulsory jurisdiction of the Court
(Aerial Incident, 29–30). This guiding principle means that States enjoy a great deal of
freedom in drafting their declarations. They can just accept the compulsory jurisdiction,
with no additional details. Or they can draft long, elaborate declarations that contain
manifold and various reservations. This freedom does not go unchecked: the ICJ Statute
limits States’ liberty in this respect. This freedom does not mean heterogeneity:
declarations adopt the same formulae and standard clauses. States copy previous
declarations when they make a new one or when they add a reservation.
140 This freedom has not been abused even if a small fraction of States have long lists of
reservations—to the point of narrowing the scope of jurisdiction to a few subject matters.
Cited Bibliography
AN Farmanfarma, The Declarations of the Members Accepting the Compulsory
Jurisdiction of the International Court of Justice (Ganguin & Laubscher Montreux
1952). Find it in your Library
HW Briggs, ‘Reservations to the Acceptance of Compulsory Jurisdiction of the

International Court of Justice’ (1958) 93 RdC 223–367. Find it in your Library
B Maus, Les réserves dans les déclarations d’acceptation de la juridiction obligatoire

de la Cour internationale de Justice (Droz Genève 1959). Find it in your Library
SA Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory

Jurisdiction of the International Court of Justice (Nijhoff Dordrecht 1995). Find it in
your Library
R Kolb, The International Court of Justice (Hart Oxford 2013). Find it in your Library
H Thirlway, The Law and Procedure of the International Court of Justice vol 1 (OUP
Oxford 2013). Find it in your Library
V Lamm, Compulsory Jurisdiction in International Law (Elgar Cheltenham 2014). Find

it in your Library
G Törber, The Contractual Nature of the Optional Clause (Hart Oxford 2015). Find it in
your Library
Further Bibliography
CHM Waldock, ‘Decline of the optional clause’ (1957) 32 BYIL 244–87. Find it in your
Library
E McWhinney, ‘Acceptance, and Withdrawal or Denial, of World Court Jurisdiction:

Some Recent Trends as to Jurisdiction’ (1985) 20 IsLR 148–166. Find it in your Library
R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Nijhoff

Dordrecht 1993). Find it in your Library
M Fitzmaurice ‘The Optional Clause System and the Law of Treaties: Issues of
Interpretation in Recent Jurisprudence of the International Court of Justice’ (1999) 20
AustYBIL 127–59. Find it in your Library
S Oda, ‘The compulsory jurisdiction of the International Court of Justice’ (2000) 49

ICLQ 251–77. Find it in your Library
SA Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice:

How Compulsory Is It?’ (2006) 5 Chinese Journal of International Law 29–38. Find it in
your Library
RP Anand, The Compulsory Jurisdiction of the International Court of Justice (2nd edn
Hope India Publications 2008). Find it in your Library
M Fitzmaurice, ‘International Court of Justice, Optional Clause’ in R Wolfrum (ed),

The Max Planck Encyclopedia of Public International Law (OUP 2011) <https://
opil.ouplaw.com/home/EPIL> (accessed 1 August 2018).
JJ Quintana Aranguren, Litigation at the International Court of Justice: Practice and

Procedure (Nijhoff Leiden 2015). Find it in your Library
Y Shany, Questions of Jurisdiction and Admissibility before International Courts (CUP

Cambridge 2016). Find it in your Library
H Thirlway, The International Court of Justice (OUP Oxford 2016). Find it in your
Library
C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat, K Oellers-Frahm, and CJ

Tams (eds), The Statute of the International Court of Justice: A Commentary (3rd edn
OUP Oxford 2019) 712–98. Find it in your Library
Cited Documents
Communication received by the Secretary-General on 5 December 1972 indicating the
revocation of the declaration made by China on 26 October 1946 concerning the
acceptance of the compulsory jurisdiction of the ICJ. (5 December 1972).
Declaration by Australia recognizing as compulsory the jurisdiction of the ICJ under

Art 36 (2) Statute of the Court (22 March 2002) 2175 UNTS 493.
Declaration by Brazil recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (12 February 1948) 15 UNTS 222.
Declaration by Bulgaria recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (27 November 2015).
Declaration by Cambodia recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (19 September 1957) 277 UNTS 77.
Declaration by Canada recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (10 May 1994) 1776 UNTS 9.
Declaration by Costa Rica recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (5 February 1973) 857 UNTS 105.
Declaration by Cote d’Ivoire recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (29 August 2001).
Declaration by Cyprus recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Denmark recognizing as compulsory the jurisdiction of the ICJ under

Art 36 (2) Statute of the Court (10 December 1956) 257 UNTS 35.
Declaration by Djibouti recognizing as compulsory the jurisdiction of the Court in

Declaration by Dominica recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the Court (24 March 2006) 2363 UNTS 325.
Declaration by Egypt recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (22 July 1957) 265 UNTS 299.
Declaration by El Salvador recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (26 November 1973) 899 UNTS 99.
Declaration by El Salvador relating to the objection notified by the Government of

Honduras on 3 July 1974 (9 September 1974) 948 UNTS 531.
Declaration by Equatorial Guinea recognizing as compulsory the jurisdiction of the ICJ

in conformity with Article 36 (2) Statute of the ICJ (11August 2017).
Declaration by Gambia recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (22 June 1966) 565 UNTS 21.
Declaration by Germany recognizing as compulsory the jurisdiction of the Court in
Declaration by Greece recognizing as compulsory the jurisdiction of the ICJ under Art
36 (2) Statute of the Court (14 January 2015) 1761 UNTS 99.
Declaration by Honduras recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Hungary recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (22 October 1992) 1692 UNTS 477.
Declaration by India recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Japan recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Kenya recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (19 April 1965) 531 UNTS 113.
Declaration by Liberia recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (20 March 1952) 163 UNTS 117.
Declaration by Lithuania recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (21 September 2012).
Declaration by Malawi recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (12 December 1966) 581 UNTS 135.
Declaration by Malta recognizing as compulsory the jurisdiction of the Court in

Declaration by Marshall Islands s recognizing as compulsory the jurisdiction of the

ICJ in conformity with Article 36 (2) Statute of the ICJ (24 April 2013).
Declaration by Mauritius recognizing as compulsory the jurisdiction of the ICJ in

Declaration by the Netherlands recognizing as compulsory the jurisdiction of the ICJ

in conformity with Article 36 (2) Statute of the ICJ (21 February 2017).
Declaration by Nicaragua recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Nigeria recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (30 April 1998) 2013 UNTS 507.
Declaration by Norway recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Pakistan recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (29 March 2017).
Declaration by Paraguay recognizing as compulsory the jurisdiction of the ICJ under
Art 36 (2) Statute of the Court (25 September 1996) 1935 UNTS 305.
Declaration by the Philippines recognizing as compulsory the jurisdiction of the Court

in conformity with Article 36 (2) Statute of the ICJ (18 January 1972) 808 UNTS 3.
Declaration by Poland recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (25 March 1996) 1918 UNTS 41.
Declaration by Portugal recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Portugal recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (25 February 2005).
Declaration by Romania recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (23 June 2015).
Declaration by Senegal recognizing as compulsory the jurisdiction of the Court in

Declaration by Slovakia recognizing as compulsory the jurisdiction of the Court in

Declaration by Sudan recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (2 January 1958) 284 UNTS 215.
Declaration by Suriname recognizing as compulsory the jurisdiction of the Court in

conformity with Article 36 (2) Statute of the ICJ (31 August 1987) 1480 UNTS 211.
Declaration by Sweden recognizing as compulsory the jurisdiction of the ICJ under Art
36 (2) Statute of the Court (6 April 1957) 264 UNTS 221.
Declaration by Switzerland recognizing as compulsory the jurisdiction of the ICJ

under Art 36 (2) Statute of the Court (28 July 1948) 17 UNTS 115.
Declaration by Thailand recognizing as compulsory the jurisdiction of the Court in

Declaration by Timor-Leste recognizing as compulsory the jurisdiction of the ICJ in

conformity with Article 36 (2) Statute of the ICJ (21 September 2012).
Declaration by Turkey recognizing as compulsory the jurisdiction of the Court in

Declaration by the United Kingdom of Great Britain and Northern Ireland recognizing
as compulsory the jurisdiction of the ICJ in conformity with Article 36 (2) Statute of
the ICJ (22 February 2017).
Declaration by the United States of America recognizing as compulsory the

jurisdiction of the Court in conformity with Article 36 (2) Statute of the ICJ (14 August
1946) 1 UNTS 9.
Declaration by the United States of America relating to its declaration of 14 August
1946 recognizing as compulsory the jurisdiction of the ICJ (6 April 1984) 1354 UNTS
452.
Depositary Notification by the Secretary-General (16 November 1992) C.N.

313.1992.TREATIES-2.
Depositary Notification by the Secretary-General (30 August 2017) C.N.

499.2017.TREATIES-I.4.
European Convention for the Peaceful Settlement of Disputes (signed 29 April 1957,
entered into force 30 April 1958) ETS No 23; 320 UNTS 243.
ILC, Guiding Principles Applicable to Unilateral Declarations of States Capable of

Creating Legal Obligations, with Commentaries thereto (1 May–9 June and 3 July–11
August 2006) UN Doc A/61/10, 367–81.
Objection by Honduras to the Declaration of El Salvador recognizing as compulsory

the jurisdiction of the ICJ (3 July 1974) 942 UNTS 339.
Statute of the International Court of Justice (adopted 26 June 1945, entered into force
24 October 1945) 67 UKTS 25 (1947) (ICJ Statute).
Tovar-Caldera Agreement (Costa Rica–Nicaragua) (adopted and entered into force 26

September 2002) 2197 UNTS 75.
Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered

into force 5 March 1970) 729 UNTS 161.
United Nations Convention on the Law of the Sea (adopted 10 December 1982,
entered into force 16 November 1994) 1833 UNTS 3.
United Nations Treaty Collection, <https://treaties.un.org/> (accessed 2 August

2018).
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force
27 January 1980) 1155 UNTS 331.
Cited Cases
Aerial Incident of 10 August 1999, Pakistan v India, Jurisdiction of the Court, 21 June
2000, ICJ Rep 12.
Anglo-Iranian Oil Co. Case, United Kingdom v Iran, Preliminary Objections, 22 July
1952, ICJ Rep 93.
Armed Activities on the Territory of the Congo (New Application: 2002), Democratic
Republic of the Congo v Rwanda, Jurisdiction and Admissibility, 3 February 2006, ICJ
Rep 6.
Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium,

Judgment, 14 February 2002, ICJ Rep 3.
Bellilos v Switzerland, Judgment, ECtHR, 29 April 1998, Series A No 132.
Certain Norwegian Loans, France v Norway, Judgment, 6 July 1957, ICJ Rep 9.
Certain Norwegian Loans, France v Norway, Separate Opinion of Judge Sir Hersch
Lauterpacht, 6 July 1957, ICJ Rep 34–66.
Dispute regarding Navigational and Related Rights, Costa Rica v Nicaragua,

Judgment, 12 July 2009, ICJ Rep 213.
Fisheries Jurisdiction, Spain v Canada, Jurisdiction of the Court, 4 December 1998,

ICJ Rep 432.
Gabčíkovo-Nagymaros Project, Hungary/Slovakia, Judgment, 25 September 1997, ICJ

Rep 7.
Jadhav Case, India v Pakistan, Application instituting proceeding, 2017.
Land and Maritime Boundary between Cameroon and Nigeria, Cameroon v Nigeria,
Preliminary Objections, 11 June 1998, ICJ Rep 275.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
opinion, 21 June 1971, ICJ Rep 16.
Legal consequences of the separation of the Chagos Archipelago from Mauritius in

1965, 2017, Request for Advisory Opinion.
Legality of Use of Force, Yugoslavia v Netherlands, Provisional Measures, 2 June

1999, ICJ Rep 542.
Loizidou v Turkey, Preliminary Objections, ECtHR, 23 March 1995, Series A No 310.
The Mavrommatis Palestine Concession, Greece v United Kingdom, Preliminary

Objections, 30 August 1924, PCIJ Series A no 2, 6.
Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United

States of America, Preliminary Objections, 26 November 1984, ICJ Rep 392.
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 7 February 1923,
PCIJ Series B no 4, 7.
Nuclear Tests Case, New Zealand v France, Judgment, 20 December 1974, ICJ Rep
457.
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race

and to Nuclear Disarmament, Marshall Islands v United Kingdom, Preliminary
Objections, Judgment, 5 October 2016, ICJ Rep 2016.
Phosphates in Morocco, Italy v France, Preliminary Objections, 14 June 1938, PCIJ

Series A/B no 74, 9.
Right of Passage over Indian Territory, Portugal v India, Preliminary Objections, 26

November 1957, ICJ Rep 125.
Temple of Preah Vihear, Cambodia v Thailand, Judgment, 15 June 1962, ICJ Rep 6.
Temple of Preah Vihear, Cambodia v Thailand, Preliminary Objections, 26 May 1961,
ICJ Rep 17.
Whaling in the Antarctic, Australia v Japan; New Zealand intervening, Judgment, 31

March 2014, ICJ Rep 226.
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Optional Clause Declarations: International Court of Justice (ICJ)

Article · September 2019

Giovanni Distefano Aymeric Hêche

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Content type: Encyclopedia entries

B. The Nature of Optional Clause Declarations

10 The requirement of a licit content is best summarized by two principles: declarations

12 The Declaration by Canada recognizing as compulsory the jurisdiction of the ICJ in

C. The Key Elements of an Optional Clause Declaration

3. Opening Remarks, General Considerations, Preamble

22 Analogously to the law of treaties, it can be contended that a declaration is voidable if

4. Acceptance of the Compulsory Jurisdiction

5. Four Classes of Disputes

27 There is no limitation on the number of reservations, see the Declaration by Djibouti of

7. Withdrawal, Modification, Duration, and Renewal

8. Place and Date of Signature

9. Signatory and Official Capacity

43 As to the time frame of reciprocity, ‘pre-seisin reciprocity’ is discarded (Kolb, 2013,

E. Duration of Optional Clause Declarations

F. Withdrawal and Modification of Optional Clause Declaration

58 In most declarations, withdrawal and modification are dealt with in separate

64 Objections to new reservations or to an overwriting declaration were spotted in two

71 The Court makes here a fundamental distinction between the withdrawal of a

77 There is an exception to the prohibition of immediate withdrawal. Erasing a reservation

78 If clauses providing for immediate withdrawal of reservation or declaration are null,

1. Reservations Ratione Temporis

(b) The ‘Anti-Ambush Application’ Reservation

2. Reservations Ratione Personae

94 Although not a Commonwealth reservation, it is also worth mentioning the Irish

(b) The Diplomatic Relations, Non-Sovereign States, and Unrecognized States

98 The last reservation is a source of wonder: ‘disputes with non-sovereign States or

3. Reservations Ratione Materiae

(a) ‘Disputes’ Reservations

(b) ‘Escape’ Reservations

(c) ‘Spatial’ Reservations

(d) ‘Use of Force’ and ‘Military’ Reservations

120 Romania made a similar reservation on 23 June 2015:

(e) ‘Environmental Protection’ Reservations

(f) Sundry Reservations

H. Nullity and Interpretation of Reservations

HW Briggs, ‘Reservations to the Acceptance of Compulsory Jurisdiction of the

B Maus, Les réserves dans les déclarations d’acceptation de la juridiction obligatoire

SA Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory

V Lamm, Compulsory Jurisdiction in International Law (Elgar Cheltenham 2014). Find

E McWhinney, ‘Acceptance, and Withdrawal or Denial, of World Court Jurisdiction:

R Szafarz, The Compulsory Jurisdiction of the International Court of Justice (Nijhoff

S Oda, ‘The compulsory jurisdiction of the International Court of Justice’ (2000) 49

SA Alexandrov, ‘The Compulsory Jurisdiction of the International Court of Justice:

M Fitzmaurice, ‘International Court of Justice, Optional Clause’ in R Wolfrum (ed),

JJ Quintana Aranguren, Litigation at the International Court of Justice: Practice and

Y Shany, Questions of Jurisdiction and Admissibility before International Courts (CUP

C Tomuschat, ‘Article 36’ in A Zimmermann, C Tomuschat, K Oellers-Frahm, and CJ

Declaration by Australia recognizing as compulsory the jurisdiction of the ICJ under

Declaration by Brazil recognizing as compulsory the jurisdiction of the Court in

Declaration by Bulgaria recognizing as compulsory the jurisdiction of the Court in

Declaration by Cambodia recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Canada recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Costa Rica recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Cote d’Ivoire recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Cyprus recognizing as compulsory the jurisdiction of the ICJ in

Declaration by Denmark recognizing as compulsory the jurisdiction of the ICJ under