This study examines the reservations to the acceptance of compulsory jurisdiction included in declarations made by States under Article 36(2) of the Statute of the Permanent Court of International Justice and of the Statute of the International Court of Justice and discusses the practical application by the Court of the principle of reciprocity to such reservations in contentious cases submitted to it under Article 36(2). It has been considered that, due to acceptance conditioned by so many diverse, and complicated reservations, the compulsory jurisdiction of the Court has been declining in significance. The recent trend of acceptance of the compulsory jurisdiction does not support such a conclusion. Since the practice of making declarations with reservations has continued, further study of the Court's jurisprudence in dealing with such reservations seems necessary.
This analysis attempts to show that reservations in unilateral declarations do not contribute to the decline of the Optional Clause. In fact, reservations provide for the flexibility which many States consider essential in accepting the compulsory jurisdiction of the International Court of Justice. Thus, the right to include a variety of reservations in unilateral declarations may in fact contribute to the wider acceptance of compulsory jurisdiction.
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Für Beruf und Forschung
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978-0-7923-3145-2 (9780792331452)
Schweitzer Klassifikation
Introduction. I: Nature of the compulsory jurisdiction of the International Court of Justice. A. The consent of the parties to adjudicate a specific dispute as a basis of the Court's jurisdiction. B. The compulsory jurisdiction as one of the options provided by the Statute for the States to express their consent to adjudicate disputes before the Court. II: Reservations in the unilateral declarations under Article 36(2) and the application of reciprocity. A. Permissibility and legal nature of reservations. B. Reciprocity as a reservation in a declaration. III: Application of reciprocity to reservations in unilateral declarations under Article 36(2). IV: Reservations ratione temporis and application of reciprocity. A. Reservations limiting jurisdiction ratione temporis. B. Time-limits of declarations: entry into force. C. Time-limits of declarations: duration and termination. V: Reservations ratione materiae and the application of reciprocity. A. Reservation excluding disputes falling under the domestic jurisdiction of a State. B. Reservation excluding territorial disputes. C. Reservations in declarations under the Optional Clause and reservations to treaties. D. Reservations excluding disputes in regard to which the parties agree to have recourse to another method of settlement. E. Disputes considered both by the International Court of Justice and the Security Council. F. The multilateral treaty reservations. VI: Reservations ratione personae and the application of reciprocity. Conclusions. Annexes.
