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III. The International Court of Justice
2.3. The Optional Clause
2.3.3. Reservations

¤ Aerial Incident of 10 August 1999
(Pakistan v. India)
Jurisdiction of the Court,
Judgment of 21 June 2000

[p. ] 29. Pakistan seeks, secondly, to found the jurisdiction of the Court on the declarations made by the Parties under Article 36, paragraph 2, of the Statute. Pakistan's current declaration was filed with the United Nations Secretary General on 13 September 1960; India's current declaration was filed on 18 September 1974. India disputes that the Court has jurisdiction in this case on the basis of these declarations. It invokes, in support of its position, the reservations contained in subparagraphs (2) and (7) of the first paragraph of its declaration; those reservations are formulated as follows:

"I have the honour to declare, an behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than:

(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;

(7) 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 or Government of India specially agree to jurisdiction;

34. The Court will begin by examining the reservation contained in subparagraph (2) of the first paragraph of India's declaration, namely the Commonwealth reservation.

35. In this regard the Court will first address Pakistans contention that this is an extra-statutory reservation going beyond the conditions allowed for under Article 36, paragraph 3, of the Statute. According to Pakistan, the reservation is neither applicable nor opposable to it in this case, in the absence of acceptance.

36. On this point, the Court recalls in the first place that its jurisdiction "only exists within the limits within which it has been accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 23). As the Court pointed out in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America):

"[d]eclarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations." (I.C.J. Reports 1984, p. 418, para. 59.)

37. The Court would further observe that paragraph 3 of Article 36 of its Statute has never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made. Already in 1928, the Assembly of the League of Nations, in a resolution adopted by it regarding "the Optional Clause of Article 36 of the Statute of the Permanent Court of International Justice", had indicated that

"attention should once more be drawn to the possibility offered by the terms of that clause to States which do not see their way to accede to it without qualification, to do so subject to appropriate reservations limiting the extent of their commitments, both as regards duration and as regards scope",

explaining that:

"the reservations conceivable may relate, either generally to certain aspects of any kind of dispute, or specifically to certain classes or lists of disputes, and . . . these different kinds of reservation can be legitimately combined" (Resolution adopted on 26 September 1928).

Moreover, when the Statute of the present Court was being drafted, the right of a State to attach reservations to its declaration was confirmed, and it was indeed considered unnecessary to clarify the terms of Article 36, paragraph 3, of the Statute on this point:

"The question of reservations calls for an explanation. As is well known, the article has consistently been interpreted in the past as allowing states accepting the jurisdiction of the Court to subject their declarations to reservations. The Subcommittee has considered such interpretation as being henceforth established. It has therefore been considered unnecessary to modify paragraph 3 in order to make express reference to the right of the states to make such reservations." (Report of Sub-Committee D to Committee IV/1 on Article 36 of the Statute of the International Court of Justice, 31 May 1945, UNCIO, Vol. XIII, p. 559.)

38. The Court notes that this right has been recognized in the practice of States, which attach to their declarations of acceptance of the jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute reservations enabling them to define "the parameters of [that] acceptance" (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 453, para. 44). Indeed, since 1929 a number of Commonwealth States have formulated reservations concerning other Commonwealth members, and such reservations are currently to be found in the declarations of eight of those States.

39. For all of the above reasons, the Court cannot accept Pakistan's argument that a reservation such as India's Commonwealth reservation might be regarded as "extra-statutory", because it contravened Article 36, paragraph 3, of the Statute. It need not therefore pursue further the matter of extra-statutory reservations.

40. Nor can the Court accept Pakistan's argument that India's reservation was a discriminatory act constituting an abuse of right because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It notes in the first place that the reservation refers generally to States which are or have been members of the Commonwealth. It would add, as it recalled in paragraphs 36 to 39 above, that States are in any event free to limit the scope ratione personae which they wish to give to their acceptance of the compulsory jurisdiction of the Court.

41. The Court will address, secondly, Pakistan's contention that the Commonwealth reservation was obsolete, because members of the Commonwealth of Nations were no longer united by a common allegiance to the Crown, and the modes of dispute settlement originally contemplated had never come into being.

42. The Court at the outset recalls that any declaration "must be interpreted as it stands, having regard to the words actually used" (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105), and that a reservation must be given effect "as it stands" (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27). Moreover, as the Court stated in the case concerning Fisheries Jurisdiction (Spain v. Canada), it

"will ... interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court" (I.C.J. Reports 1998, p. 454, para. 49).

43. The four declarations whereby, since its independence in 1947, India has accepted the compulsory jurisdiction of the Court have all contained a Commonwealth reservation. In its most recent form, that of 18 September 1974, the reservation was amended so as to cover "disputes with the government of any State which is or has been a Member of the Commonwealth of Nations".

44. While the historical reasons for the initial appearance of the Commonwealth reservation in the declarations of certain States under the optional clause may have changed or disappeared, such considerations cannot, however, prevail over the intention of a declarant State, as expressed in the actual text of its declaration. India has repeatedly made clear that it wishes to limit in this manner the scope ratione personae of its acceptance of the Court's jurisdiction. Whatever may have been the reasons for this limitation, the Court is bound to apply it.

[p. ] 45. Pakistan has further argued, in the alternative, that, if the reservation were held to be valid, India would in any event be prevented from relying upon it against Pakistan by the operation of estoppel. For this purpose, Pakistan has cited Article 1 of the Simla Accord, paragraph (ii) of which provides inter alia that

"the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them ..."

The Court regards this provision as an obligation, generally, on the two States to settle their differences by peaceful means, to be mutually agreed by them. The said provision in no way modifies the specific rules governing recourse to any such means, including judicial settlement. Thus the Court cannot interpret that obligation as precluding India from relying, in the present case, on the Commonwealth reservation contained in its declaration.

The Court cannot therefore accept the argument in the present case based on estoppel.

[pp. D.O. Al-Khasawneh] 12. The argument has however been made that even if the reservation was directed at Pakistan alone, this would be no more than a classic reservation ratione personae made under a system of compulsory jurisdiction where the practice has permitted a choice of partners, and that therefore the Indian reservation did not amount to discrimination or abuse of rights but is wholly within a declarant State's discretion.

13. I propose now to examine this issue bearing in mind that the Court has never had the opportunity to decide on the validity or otherwise of a reservation excluding disputes ratione personae.

14. As a general comment, it has long been recognized that the practice of the Court has tended to accord States more freedom to enter reservations in their declarations accepting its compulsory jurisdiction than the plain words of Article 36, paragraph 3, of the Statute provide for. One looks in vain for any reflection of the maxim inclusio unius est exclusio alterius. Be this as it may, the fact that a reservation is extra-statutory in the sense that it goes beyond Article 36, paragraph 3, cannot in itself, in view of the existence of settled practice, lead to invalidity. On the other hand, when all allowance is made for political realism and when cognizance is fully taken of the fact that the Courts jurisdiction operates only within the parameters of the declarations and that its jurisdiction has to be proved to the hilt, some room must be left for an objective assessment of the validity or otherwise of the reservations and conditions contained in declarations accepting its jurisdiction. To deny this is to abdicate responsibility. Where the Court strikes a delicate balance between the need for care and caution in asserting its jurisdiction on the one hand, and the duty to do justice on the other, has to be decided contextually in each case.

15. Another important consideration to be borne in mind in striking that delicate balance is that the system of international adjudication is not a static one. Indeed, implicit in the very notion of an optional system is a presumption of temporariness. When the concept of an optional clause system was born, it was not possible to gain universal support for a comprehensive system of adjudication and it is still doubtful that such a system can gain support in the foreseeable future, but this should not obscure the need to move towards that ideal.

16. In deciding the validity or otherwise of reservations, the Court cannot be oblivious to the fact that merely to take note of reservations without examining their content can hardly advance the cause of international adjudication. In the realm of questions relating to the determination of its own jurisdiction (la compétence de la compétence) the Court has never shied away from rejecting arguments that sought, under the guise of the unilateral nature of declarations, to reserve such matters to the discretion of the declarant State. There is no reason why the same reasoning should not apply to other areas where the Court's jurisdiction is invoked.

17. The distinction drawn between situations that fall under paragraph 6 of Article 36 and the remainder of that Article is an artificial one and, if maintained, will mean that the unity of purpose of the Article will collapse.

18. From the early days of the optional clause system, reservations ratione personae have been made in myriad ways, but they have invariably had a rationale, or at least a reasonably defensible justification. It would not be proper for me to comment on the validity or otherwise of those reservations that have not been considered by the Court - especially as most of them are contained in declarations that have either lapsed or were withdrawn. Suffice it to mention in general that reservations ratione personae meant to provide for alternative ways of peaceful settlement have a rationale that fortifies them against accusations of arbitrariness. Similarly, reservations that made acceptance of compulsory jurisdiction conditional upon a number of State Members of the League of Nations accepting similar commitments also have a justification. Likewise reservations that made recognition of the declarant State a prior condition to adjudication under the optional clause may be said to have a rationale. What sets the Indian Commonwealth reservation apart, as worded in the 1974 declaration, is that it does not even pretend to have a justification. To be sure, any reservation, even if made ratione materiae or rationae temporis or otherwise, will ultimately exclude jurisdiction in respect of disputes between the declarant State and one or more other States. The difference between such reservations and the Commonwealth reservation in this case might be no more than one of more careful concealment of intent, but declarant States are at least entitled to the benefit of the doubt in this regard. By entering a reservation that cannot be interpreted - when regard is given to its terms and the circumstances in which it was made - except as intended to bar jurisdiction with another State only, and when one also considers that removal of this bar to jurisdiction is not dependent on the fulfilment of an objective condition, and considers further that the State against whom the reservation is intended to operate maintains no similar reservation with regard to the declarant State and is entitled to reasonable expectations of adjudication under the network of engagements that constitutes the optional clause system, one appreciates that the Indian reservation, as presently worded, is of a truly unique nature. The Court could not have been clearer when it stated:

"the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases"1.

19. An assessment of the terms of the Indian Commonwealth reservation (addition of the words "or has been" a Member of the Commonwealth of Nations), the absence of a reference to alternative means of peaceful settlement agreed upon or to be agreed upon, and a consideration of the circumstances under which the reservation was made together with the actual text, reveal a clear will of arbitrary exclusion and give the reservation an exceptional nature that puts it outside the purview of permissibility. I am compelled therefore to the conclusion that the reservation is invalid and cannot bar the Courts jurisdiction.

[pp. D.O. Al-Khasawneh] 36. Thus, in paragraph 3 of Article 44, the principle of separability is established in cases where the ground relates solely to particular clauses (which is self-evidently the case with respect to the Commonwealth reservation) and where:

(a) The said clauses are separable from the remainder of the treaty with regard to their application which is again self-evident in the case of the Commonwealth reservation.

(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.

The International Law Commission's commentary on what was to become Article 44, paragraph 3 (c), makes it clear that whether the condition is met "would necessarily be a matter to be established by reference to the subject-matter of the clauses, their relation to the other clauses, to the travaux préparatoires and to the circumstances of the conclusion of the treaty"2.

In this regard, the subject-matter of the Commonwealth reservation - being particular to a group of States and not representing a general attitude towards the concept of compulsory jurisdiction such as would be, for example, the exclusion of matters falling within the domestic jurisdiction of the declarant State - does not give rise to an inference that acceptance of the reservation was an essential or crucial basis of consent to submit to compulsory jurisdiction. Moreover, the relationship of the reservation to other reservations or conditions or other parts of the declaration cannot support such an inference. The only inference that can be drawn is that the reservation is readily separable from the remainder of the declaration. As for the travaux préparatoires (or their equivalent in the area of the optional acceptance of compulsory jurisdiction) no evidence whatsoever was provided by India that, with reference to those sources, its consent depended crucially on inseparability of declaration and reservation.

The words "and to the circumstances of the conclusion of the treaty" may give credence prima facie to the argument that, since the revised version of India's latest declaration in 1974 took place in circumstances where India was trying to avoid Pakistan's invocation of the Court's jurisdiction, it represented an essential basis of India's consent. Again in the absence of supporting evidence and given that the subject-matter of the reservation is confined to a particular class of disputes, any conclusion that goes beyond acknowledging that the reservation was an important - as distinct from an essential - basis of consent would be unwarranted. Indeed the very fact that India chose to renew its declaration - with modifications - under those circumstances would support this conclusion.

(c) Continued performance of the remainder of the treaty would not be unjust. As is well known, this condition has been criticized as being inevitably subjective, adding little to the underlying basis of condition (b)3. Against this, the rationale for the paragraph seems to be that it is useful to deal with situations where -with the passage of time - certain provisions may gain or lose in importance in a way not foreseen in the negotiations. Whatever the merits or demerits of this condition, it is apparent that the continued binding force of the Indian declaration without the reservation would not be unjust for India, given that Pakistan maintains no such reservation with regard to India. Moreover, while opinions differ as to the obsolescence stricto sensu of the Commonwealth reservation, there can be little doubt that the reservation is losing in relevance as time passes4, as can be seen not only from the diminishing number of Commonwealth members who maintain such a reservation but also from the phenomenon - admittedly still in statu nascendi - of greater readiness on the part of States, including Commonwealth members, to submit to compulsory jurisdiction in other fora and under important instruments, for example under the 1982 Law of the Sea Convention and within the framework of the World Trade Organization.

37. It would seem therefore that the reservation in question is likely to decline further in importance over time, which would support the conclusion that striking out the Commonwealth reservation is unlikely to lead to unjust results for India by reason of the continued performance of its remaining obligations under its declaration.

38. It would follow, therefore, that the reservation is separable from the rest of the declaration.

[p. D.O. Pirzada] 52. Having regard to recognised principles of the doctrine of severability, clause (2), "disputes with the government of any State which is or has been a Member of the Commonwealth of Nations" can be separated from the rest in the declaration of India of 18 September 1974.

The "Commonwealth members reservation" is not so central as to constitute "an essential basis of the consent of India" to be bound by its declaration under the optional clause. It is not made in good faith. It serves no rational or legitimate purpose, as there exists no separate procedure for the compulsory jurisdiction of disputes between Commonwealth countries. It is purposeless and of no legal effect. Hence its severance does not affect the validity of rest of India's declaration under Article 36, paragraph 2, of the Statute.

1Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 418.
2Yearbook of International Law Commission, 1966, Vol. II, p. 238. Sinclair, The Vienna Convention on the Law of Treaties, second edition, pp. 166-167.
3Capotorti, "L'extinction et la suspension des traités", 134 Recueil des Cours 1971, p. 463.
4The literature lends authority to this view, Merrills for example observes "this reservation must be taken to have outlived its usefulness". British Year Book of International Law, 1993, p. 222.