|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.3.||The Optional Clause|
Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 298-300] 41. Nigeria recalls in the third place that, by its Declaration deposited on 3 September 1965, it had recognized
"as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to say, on the sole condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36, paragraph 2, of the Statute of the Court".
Nigeria maintains that on the date on which Cameroon's Application was filed, it did not know that Cameroon had accepted the Courts compulsory jurisdiction. Accordingly it could not have brought an application against Cameroon. There was an absence of reciprocity on that date. The condition contained in the Nigerian Declaration was operative; consequently, the Court does not have jurisdiction to hear the Application.
42. Cameroon disputes this argument in fact as well as in law. It states that, in the minds of the States party to the Optional Clause, the condition of reciprocity never possessed the meaning which Nigeria now ascribes to it; the Court had ascribed a completely different meaning to it in a number of its judgments. The interpretation now provided by Nigeria of its own declaration was a new interpretation for which no authority was cited in support. In sum, the purpose of the Nigerian Declaration, according to Cameroon, was only to emphasize that there is "a sole and unique condition to the compulsory character of the Court's jurisdiction in this case, i.e., that Cameroon should accept the same obligation as Nigeria, or in other words that it should accept the jurisdiction of the Court. This Cameroon does."
43. The Court has on numerous occasions had to consider what meaning it is appropriate to give to the condition of reciprocity in the implementation of Article 36, paragraph 2, of the Statute. As early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, "jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it" (I.C.J. Reports 1952, p. 103). The Court applied that rule again in the case of Certain Norwegian Loans (I.C.J. Reports 1957, pp. 23 and 24) and clarified it in the Interhandel case where it held that:
"Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration ... Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends." (I.C.J. Reports 1959, p. 23.).
In the final analysis, "[t]he notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 419, para. 62). It simply requires that the Court ascertain whether, at the time of filing the Application instituting proceedings "the two States accepted 'the same obligation' in relation to the subject-matter of the proceedings" (ibid., pp. 420-421, para. 64).
Therefore, in legal proceedings, the notion of reciprocity, and that of equality, "are not abstract conceptions. They must be related to some provision of the Statute or of the Declarations" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 145). Consequently, "the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute" (ibid., p. 147).
Nigeria considers, however, that that precedent does not apply here. It points out that, although in its 1965 Declaration, it recognized the jurisdiction of the Court as compulsory in relation to any other State accepting the same obligation, it was more explicit in adding the words "and that is to say, on the sole condition of reciprocity". "Those additional words clearly have some meaning and effect ... it is the supplementing of the 'coincidence' required by Article 36, paragraph 2, by the element of mutuality inherent in the concept of 'reciprocity'." The Nigerian condition, in other words, sought "to mitigate the effects" of the Court's earlier decision in the case concerning Right of Passage over Indian Territory by creating an equality of risk and precluding that proceedings be brought before the Court by surprise.
44. In support of its position, Nigeria invokes the decision given in the case concerning Anglo-Iranian Oil Co., in which the Court stated that it could not base its interpretation of the Iranian Declaration recognizing the jurisdiction of the Court
"on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court." (Anglo-Iranian Oil Co., Preliminary Objection, I.C.J. Reports 1952, p. 104.)
The Court had concluded that "[i]t is unlikely that the Government of Iran ... should have been willing, on its own initiative, to agree that disputes relating" (ibid., p. 105) to the capitulations which it had just denounced be submitted to an international court of justice.
45. The Court considers that the situation in this case is very different. Nigeria does not offer evidence in support of its argument that it intended to insert into its Declaration of 14 August 1965 a condition of reciprocity with a different meaning from the one which the Court had drawn from such clauses in 1957. In order to protect itself against the filing of surprise applications, in 1965, Nigeria could have inserted in its Declaration an analogous reservation to that which the United Kingdom added to its own Declaration in 1958. Ten or so other States proceeded in this way. Nigeria did not do so at that time. Like the majority of States which subscribe to the Optional Clause, it merely specified that the commitments it was entering into, in accordance with Article 36, paragraph 2, of the Statute, were reciprocal in relation to any other State accepting the same obligation. In the light of this practice, the additional phrase of the sentence, "that is to say, on the sole condition of reciprocity" must be understood as explanatory and not adding any further condition. This interpretation is "in harmony with a natural and reasonable way of reading the text" (Anglo-Iranian Oil Co., Preliminary Objection, I.C.J Reports 1952, p. 104) and Nigeria's condition of reciprocity cannot be treated as a reservation ratione temporis.
46. The Court therefore concludes that the manner in which Cameroon's Application was filed was not contrary to Article 36 of the Statute. Nor was it made in violation of a right which Nigeria may claim under the Statute, or by virtue of its Declaration, as it was in force on the date of the filing of Cameroon's Application.
[p. 395 D.O. Ajibola] Reciprocity in this context requires that Nigeria should have been informed about Cameroon's Optional Clause Declaration before its Application was filed with the Court, to avoid being surprised and to be assured that Cameroon had acted in good faith.
[p. 399 D.O. Ajibola] It is the view of the Court that the principle of good faith plays an important role in Optional Clause declarations with regard to reciprocity.
The Court observed further in the same Nicaragua case that:
"In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. In the establishment of this network of engagements, which constitutes the Optional Clause system, the principle of good faith plays an important role; the Court has emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms ..." (Military and Paramilitary Activities in and against Nicaragua (Nigaragua v. United States af America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 418; emphasis added.)
If, ex hypothesi, Nigeria, being aware of the fact that Cameroon was about to file its Application on 29 March 1994 had withdrawn its Optional Clause Declaration, say on 26 March 1994, putting Cameroon in a situation similar to that of Nicaragua, the Court would have decided that Nigeria did not act in good faith and that such withdrawal would not invalidate the Application of Cameroon. The Court is now being asked to deal with "the other side of the coin" and, in my opinion, it ought to give a "reciprocal judgment" by rejecting the Application of Cameroon as an application filed mala fide.