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| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.3. | The Optional Clause |
| 2.3.1. | General Questions |
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Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 290-292] 21. The first objection contends that the Court has no jurisdiction to entertain Cameroon's Application.
22. In this regard, Nigeria notes that it had accepted the Courts compulsory jurisdiction by a declaration dated 14 August 1965, deposited with the Secretary-General of the United Nations on 3 September 1965. Cameroon had also accepted the Courts compulsory jurisdiction by a declaration deposited with the Secretary-General on 3 March, 1994. The Secretary-General transmitted copies of the Cameroon Declaration to the parties to the Statute eleven-and-a-half months later. Nigeria maintains, accordingly, that it had no way of knowing, and did not actually know, on the date of the filing of the Application, i.e., 29 March 1994, that Cameroon had deposited a declaration. Cameroon consequently is alleged to have "acted prematurely". By proceeding in this way, the Applicant "is alleged to have violated its obligation to act in good faith", "abused the system instituted by Article 36, paragraph 2, of the Statute" and disregarded "the condition of reciprocity" provided for by that Article and by Nigeria's Declaration. The Court consequently does not have jurisdiction to hear the Application.
23. In contrast, Cameroon contends that its Application fulfils all the conditions required by the Statute. It notes that in the case concerning Right of Passage over Indian Territory, the Court held that
"the Statute does not prescribe any interval between the deposit by a State of its Declaration of Acceptance and the filing of an Application by that State, and that the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 147).
Cameroon indicates that there is no reason not to follow this precedent, at the risk of undermining the system of compulsory jurisdiction provided by the Optional Clause. It adds that the Cameroonian Declaration was in force as early as 3 March 1994, as at that date it was registered in accordance with Article 102 of the United Nations Charter. Cameroon states that in any event Nigeria has acted, since the beginning of these proceedings, in such a way that it should be regarded as having accepted the jurisdiction of the Court.
24. Nigeria argues in reply that the "case concerning the Right of Passage over Indian Territory, was a first impression", that the Judgment given is outdated, and that it is an isolated one; that international law, especially as it relates to good faith, has evolved since and that in accordance with Article 59 of the Statute, that Judgment only has the force of res judicata as between the parties and in respect of that case. For these reasons, the solution adopted in 1957 should not be adopted here. Nigeria does not accept the reasoning of Cameroon based on Article 102 of the Charter. Nigeria also contends that there is no question of its having consented to the jurisdiction of the Court in the case and hence there is no forum prorogatum.
Cameroon contests each of these arguments.
25. The Court observes initially that, in accordance with Article 36, paragraph 2, of the Statute:
"The 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 in all legal disputes"
as specified in that clause.
Article 36, paragraph 4, provides:
"Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court."
In the case concerning Right of Passage over Indian Territory, the Court concluded, in the light of these provisions, that
"by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, 'ipso facto and without special agreement', by the fact of the making of the Declaration ...
For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J Reports 1957, p. 146.)
The conclusions thus reached by the Court in 1957 reflect the very essence of the Optional Clause providing for acceptance of the Court's compulsory jurisdiction. Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2, accepts jurisdiction in its relations with States previously having adhered to that clause. At the same time, it makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. The day one of those States accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be fulfilled. Thus, as the Court stated in 1957:
"every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of Acceptance" (ibid., p. 146).
26. Furthermore, and as the Court also declared in the case concerning Right of Passage over Indian Territory, the State making the declaration
"is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action of the Secretary-General. Moreover, unlike some other instruments, Article 36 provides for no additional requirement, for instance, that the information transmitted by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system. The Court cannot read into the Optional Clause any requirement of that nature." (I.C.J. Reports 1957, pp. 146-147.)
27. The Court furthermore recalls that, contrary to what is maintained by Nigeria, this Judgment is not an isolated one. It has been reaffirmed in the case concerning the Temple of Preah Vihear (Preliminary Objections, I.C.J Reports 1961, p. 31), and in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392). In that latter case, the Court pointed out that
"as regards the requirement of consent as a basis of its jurisdiction, and more particularly as regards the formalities required for that consent to be expressed in accordance with the provisions of Article 36, paragraph 2, of the Statute, the Court has already made known its view in, inter alia, the case concerning the Temple of Preah Vihear. On that occasion it stated: 'The only formality required is the deposit of the acceptance with the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute.' (I.C.J Reports 1961, p. 31.)" (I.C.J. Reports 1984, p. 412, para. 45.) .
28. Nigeria nonetheless contests that conclusion pointing out that, in accordance with Article 59 of the Statute, "[t]he decision of the Court has no binding force except between the parties and in respect of that particular case". Thus, judgments given earlier, in particular in the case concerning Right of Passage over Indian Territory, "clearly [have] no direct compelling effect in the present case".
It is true that, in accordance with Article 59, the Courts judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases.
[pp. 293-296] 30. The Court notes that the regime for depositing and transmitting declarations of acceptance of compulsory jurisdiction laid down in Article 36, paragraph 4, of the Statute of the Court is distinct from the regime envisaged for treaties by the Vienna Convention. Thus the provisions of that Convention may only be applied to declarations by analogy (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 420, para. 63).
31. The Court furthermore observes that in any event the provisions of the Vienna Convention do not have the scope which Nigeria imputes modalities according to which notifications and communications should be carried out. It does not govern the conditions in which a State expresses its consent to be bound by a treaty and those under which a treaty comes into force, those questions being governed by Articles 16 and 24 of the Convention. Indeed, the International Law Commission, in its Report to the General Assembly on the draft which was subsequently to become the Vienna Convention, specified that if the future Article 78 included in limine an explicit reservation, that was "primarily in order to prevent any misconception as to the relation" between that Article and the future Articles 16 and 24 (Yearbook of the International Law Commission, 1966, Vol. II, p. 271). It added that consequently "specific provisions [of those latter Articles] will prevail".
According to Art. 16:
"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
(b) their deposit with the depositary".
Article 24 further provides in its paragraph 3 that:
"When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides".
In its report to the General Assembly, the International Law Commission had pointed out that:
"In the case of the deposit of an instrument with a depositary, the problem arises whether the deposit by itself establishes the legal nexus between the depositing State and other contracting States or whether the legal nexus arises only upon their being informed by the depositary." (Yearbook of the International Law Commission, 1966, Vol. II, p. 201).
After describing the advantages and disadvantages of both solutions, it concluded that:
"The Commission considered that the existing general rule clearly is that the act of deposit by itself establishes the legal nexus ... This was the view taken by the International Court of Justice in the Right of Passage over Indian Territory (preliminary objections) case in the analogous situation of the deposit of instruments of acceptance of the optional clause under Article 36, paragraph 2, of the Statute of the Court ... [Therefore] the existing rule appears to be well-settled." (Ibid.).
This general rule is reflected in Articles 16 and 24 of the Vienna Convention: the deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; the treaty enters into force as regards that State on the day of the deposit.
Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory. That solution should be maintained.
32. Nigeria maintains however that, in any event, Cameroon could not file an application before the Court without allowing a reasonable period to elapse "as would ... have enabled the Secretary-General to take the action required of him in relation to Cameroon's Declaration of 3 March 1994". Compliance with that time period is essential, the more so because, according to Nigeria, the Court, in its Judgment of 26 November 1984 in the case concerning Military and Paramilitary Activities in and against Nicaragua, required a reasonable time for the withdrawal of declarations under the Optional Clause.
33. The Court, in the above Judgment, noted that the United States had, in 1984, deposited with the Secretary-General, three days before the filing of Nicaragua's Application, a notification limiting the scope of its Declaration of acceptance of the Court's jurisdiction. The Court noted that that Declaration contained a clause requiring six months' notice of termination. It considered that that condition should be complied with in cases of either termination or modification of the Declaration, and concluded that the 1984 notification of modification could not, with immediate effect, override the obligation entered into by the United States beforehand (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 421, para. 65).
The Court noted, moreover, in relation to Nicaragua's Declaration upon which the United States was relying on the grounds of reciprocity, that, in any event,
"the right of immediate termination of declarations with indefinite duration 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" (ibid., p. 420, para. 63).
The Court added: "the question of what reasonable period of notice would legally be required does not need to be further examined: it need only be observed that [three days] would not amount to a 'reasonable time'" (ibid.).
34. 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
35. 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 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.
[pp. 296-297] 36. Nigeria's second argument is that Cameroon omitted to inform it that it intended to accept the jurisdiction of the Court, then that it had accepted that jurisdiction and, lastly, that it intended to file an application. Nigeria further argued that Cameroon even continued, during the first three months of 1994, to maintain bilateral contacts with it on boundary questions while preparing itself to address the Court. Such conduct, Nigeria contends, infringes upon the principle of good faith which today plays a larger role in the case-law of the Court than before, and should not be accepted.
37. Cameroon, for its part, argues that it had no obligation to inform Nigeria in advance of its intentions, or of its decisions. It adds that in any event "Nigeria was not at all surprised by the filing of Cameroon's Application and ... knew perfectly well what Cameroon's intentions were in that regard several weeks before the filing". The principle of good faith was not at all disregarded.
38. The Court observes that the principle of good faith is a well-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969. It was mentioned as early as the beginning of this century in the Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case (United Nations, Reports of International Arbitral Awards, Vol. XI, p. 188). It was moreover upheld in several judgments of the Permanent Court of International Justice (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J, Series A, No. 17, p. 30; Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12, and 1932, P.C.I.J, Series A/B, No. 46, p. 167). Finally, it was applied by this Court as early as 1952 in the case concerning Rights of Nationals of the United States of America in Morocco (Judgment, I.C.J. Reports 1952, p. 212), then in the case concerning Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 18), the Nuclear Tests cases (I.C.J. Reports 1974, pp. 268 and 473), and the case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105).
39. The Court furthermore notes that although the principle of good faith is "one of the basic principles governing the creation and performance of legal obligations ... it is not in itself a source of obligation where none would otherwise exist" (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94). There is no specific obligation in international law for States to inform other States parties to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Consequently, Cameroon was not bound to inform Nigeria that it intended to subscribe or had subscribed to the Optional Clause.
Moreover:
"A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146.)
Thus, Cameroon was not bound to inform Nigeria of its intention to bring proceedings before the Court. In the absence of any such obligations and of any infringement of Nigeria's corresponding rights, Nigeria may not justifiably rely upon the principle of good faith in support of its submissions.
[pp. 336-337 S.O. Oda] 20. More generally, the delimitation of the exclusive economic zone and the continental shelf shall, according to the 1982 United Nations Convention on the Law of the Sea, be "effected by agreement on the basis of international law ... in order to achieve an equitable solution"
(Arts. 74 and 83).
In the event that a delimitation of the maritime boundary line for the exclusive economic zone or the continental shelf is required between neighbouring States, the firm wishes of the parties to delimit their respective areas must in general exist, and negotiation must be continued for this purpose. The relevant parties, after negotiation, may determine the line by agreement and, if they fail to agree, they may then seek a third-party judgment. However, the mere fact that the parties have not been able to reach agreement on the delimitation in their negotiations does not constitute a "legal dispute".
21. There has been no negotiation between Cameroon and Nigeria with a view to deciding on the delimitation of the exclusive economic zone and the continental shelf, nor has a "legal dispute" arisen between Cameroon and Nigeria which might fall within the purview of Article 36 (2) of the Court's Statute. If the Court considers that Cameroon's Application concerning the delimitation of the exclusive economic zone and the continental shelf can be entertained on the grounds that there is a "legal dispute" under the circumstances appertaining to this case, then there will be hundreds of similar disputes that could be brought to the Court from all parts of the world.
22. Over the past 20 years, I have made known my belief that maritime delimitation may be dealt with more properly by recourse to arbitration than to judicial settlement. However, I concede that the Court cannot, in principle, refuse to receive a request for demarcation of a maritime boundary if that request is made jointly by the parties. It should be noted that delimitation cases have in the past been brought to the Court by special agreement under Article 36 (1) of the Court's Statute - namely, the cases concerning the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands); the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya); the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta); the chamber case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America); the chamber case concerning the Frontier Dispute (Burkina Faso/Republic of Mali); and the chamber case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras).
23. In conclusion, Cameroon's request that the Court specify the boundary or prolong the maritime boundary stated in item (f) of Section V ("Decision Requested") of Application-I and in submission (c), both first and second subparagraphs, is not a matter that can be unilaterally presented to the Court. The Court should have refused Cameroon's request, as mentioned above, as it is not competent to entertain such a unilateral application.
[pp. 362-363 D.O. Weeramantry] Briefly stated, my concerns centre on the proposition that the deposit of a declaration under Article 36, paragraph 2, of the Statute is all that is required to establish the necessary consensual bond under the Optional Clause. It follows from this proposition that the moment a declaration is lodged under Article 36, Paragraph 2, the Party lodging the declaration has the right to bring another declarant to Court, irrespective of that other party's knowledge that such declaration has been lodged. It seems to me that such a proposition cannot be in conformity with either the express law or the essential philosophy governing the Optional Clause.
Such a view negates a specific provision of the applicable law which is contained in Article 36, Paragraph 4, of the Statute, and runs contrary to the philosophy of consensus on which the structure of the Courts jurisdiction, as well as of this particular provision, is based. It is also in disharmony with the principles of equality, fairness, good faith, and reciprocity. Moreover, it results in the rather incongruous situation that, during the interim period between the filing of the declaration and the communication of this fact, there is great inequality between the Parties in relation to their practical right of access to the Court. The right to take one's adversary to Court is, in any circumstances, a valuable right. It is rendered all the more valuable - and inequitably so - if one's adversary does not know that it has a corresponding right. If such a one-sided state of affairs prevails for nearly a year - which could occur, as we have seen, owing to delays in communication by the Secretariat - so much the greater is the advantage to one Party and the resulting lack of equality and reciprocity. The declarant can regulate its conduct and direct its negotiations from the vantage point of its certain knowledge that the matter is now justiciable before the Court, while its opponent negotiates in ignorance of this vital item of information regarding its rights.
I do not think such results were within the contemplation of those who drafted the Statute of the Court, especially having regard to their particular concern with the question of communication, as reflected in the wording of the Article itself.
The authority for the proposition underlying the Courts ruling is the often-invoked Right of Passage case1, but, with much respect, it seems to me that that case, though followed in the Court's subsequent jurisprudence, needs re-examination. It affects too fundamental an aspect of the Court's jurisdiction to remain as the leading authority on this question. After 40 years of development of international law, in the spheres of such concepts as fairness, reciprocity and good faith, so sweeping a hypothesis as the immediate creation of a right to sue, regardless of the other party's knowledge thereof, is much in need of review.
[pp. 364-368 D.O. Weeramantry] I shall now deal with the reasons why I consider the Right of Passage decision to be in need of review, commencing with the strictly legal provisions, and moving thereafter to the conceptual reasons underpinning them.
That decision, which receives endorsement from the Courts Judgment in the present case, holds that
"A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned."2
My first point of disagreement with the Right of Passage case is based on its unequal treatment of the two mandatory clauses contained in Article 36, paragraph 4, of the Statute. The two requisites stipulated by Article 36, paragraph 4, are deposit with the Secretary-General and transmission by the Secretary-General of copies to the parties to the Statute and to the Registrar of the Court. The Court, in Right of Passage, treats the first request as essential and virtually discounts the other. I do not think that two parallel statutory requirements can be treated so differently, especially when both alike are couched in imperative terms.
Secondly, it is an important rule of statutory interpretation that all words in the instrument under interpretation should, as far as possible, be given full efficacy. The Court must necessarily avoid any interpretation which would reduce important words or clauses in the Statute to mere surplusage which has no legal effect whatever. Under the Right of' Passage interpretation, the words "who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court" might as well have been omitted from the Statute. Such an interpretation does not seem to me to be in conformity with the recognized rules of legal Interpretation. The Court is under a duty to render effective all the provisions of its Statute, rather than to encourage the disregard of sections of it by interpretations which denude them of significance or meaning.
The Courts Judgment means that if the Secretariat ignored these words completely, the legal result would still be the same. Such a view is all the more questionable when the statutory requirement is not an arbitrary imposition, but is based, as will be shown, upon well-accepted universal norms and concepts pertinent to the creation of consensual relationships.
It is true this Judgment has been followed in the Court's later jurisprudence in Temple of Preah Vihear and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, no amount of contrary jurisprudence can override the imperative requirements of the Court's Statute and, if indeed the Statute makes such a communication compulsory, it must be treated as such.
Thirdly, one must look upon the deposit of the declaration and the communication by the Secretary-General as together constituting the composite package of conditions which needs to be satisfied to give legal efficacy to the declaration. It is clear that the first requisite must be satisfied, for, without it, there could be no question of the declaration being operative. The article in question designedly does not place that requisite alone, but couples it with another in terms which are equally mandatory.
One constituent element cannot be detached from this statutory package by a process of judicial interpretation. Nor can one element be emphasized and the other neutralized when the Statute itself gives no indications to that effect. If the juristic right fashioned by Article 36 is to come into existence, the events attending its creation must fit the mould cast for that purpose by the governing statutory provision.
A fourth reason why the Right of Passage decision needs review is that it could well encourage the Secretariat to take a more relaxed view regarding its obligations under Article 36, paragraph 4. Since the interpretation placed by Right of Passage an the requirement of communication deprives that requirement of all effective impact upon the matter it was meant to regulate, it is not to be wondered at that the Secretariat, acting presumably on that ruling, takes its time - up to one year - in transmitting the required communication.
If, indeed, a practice of delay in communication has resulted in the United Nations from the belief that one of these imperative conditions is not imperative, despite the language of the Statute to the contrary, it is important that the practice be rectified and the procedures brought into regularity with the binding requirements of the Statute.
It is true the second of these requirements is not within the control of the party depositing the declaration, but it is to be presumed that official acts will be duly performed, the more especially where they relate to matters of such fundamental importance to the rights of States, as the voluntary surrender of some part of their sovereign autonomy - for declarations by States under Article 36 amount to no less than this. Due performance by the Secretariat of its responsibility of transmitting such copies in a matter such as this can mean nothing short of transmission of such declarations forthwith. This is yet another reason why I believe the Court should take this opportunity to review that Judgment, and stress the imperative nature of this statutory responsibility. The delay of nearly one year that has occurred in communication in this instance is not, in any event, a proper compliance with the Statute.
My fifth objection to the Right of Passage case is that it takes out of context the expression "ipso facto and without special agreement", and treats it as an indication of the point of time at which the parties became consensually bound. This provision was not intended to produce such a result, nor can it bear such a construction. What Article 36, paragraph 2, provides is that where a declaration is filed, no special agreement is necessary, as the declaration has a compulsory force of its own. Nowhere does this provision purport to indicate when that declaration becomes operative.
I would endorse what Vice-President Badawi observed of this construction in his dissenting opinion in the Right of Passage case when he criticized the isolation of the expression "ipso facto" from its context.
This led to the achievement of a result by which, in his words, "the complete idea contained in the Statute has been dismembered and disregarded"3.
As a sixth objection, I note the prejudice that the Right of Passage interpretation may cause to a party. A ruling which in effect confirms that the filing of a declaration becomes operative the very next moment after it is filed could be an embarrassment to a State which is in the process of negotiation with another. Unknown to itself, it could have the ground surreptitiously cut from under its feet, perhaps after it has made some vital concession, in the belief that the matter is still under negotiation. This aspect is further developed later in this opinion.
A seventh reason is that the declaration which constitutes the act of acceptance is not a declaration in a standard form. It is infinitely variable in its terms, and the mere fact of deposit cannot be an intimation of the terms in which the declaration is framed. The party sought to be bound is entitled to know those terms. If it is held to be consensually bound, it cannot reasonably be held to be bound to terms of which it is unaware. This factor militates so strongly against the core content of the concept of consensus that even had it stood alone, it would, in my view, have been conclusive.
An eighth and final reason why, in my view, the Right of Passage decision needs re-examination is that it could have an adverse effect on the development of the Court's jurisdiction. The Court's interpretation could well result in a reluctance on the part of States to make such declarations in the first instance. Indeed, the Courts ruling in the Right of Passage case was followed shortly thereafter by the introduction of a series of reservations to declarations already filed under Article 36. For example, the United Kingdom's Declaration on 26 November 1958 excepted from the scope of its Declaration disputes
"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"4.
So, also, India filed an amended declaration on 14 September 1959, restricting the Courts jurisdiction in respect of future applications to cases where the acceptance of the Court's compulsory jurisdiction was deposited or ratified more than twelve months prior to the filing of an application bringing the dispute to the Court5.
Other States may well be expected to take similar steps to protect themselves against surprise applications if this view of the law is confirmed, while some others contemplating the filing of such a declaration may well have second thoughts on the subject. All this is not conducive to the extension of the compulsory jurisdiction of the Court.
Indeed, while the Court has been deliberating on its Judgment, Nigeria itself has taken action, on 29 April 1998, to amend its Declaration, so as to impose a time-limit of twelve months before acceptance of the Court's jurisdiction by a State becomes operative against Nigeria.
[pp. 379-381 D.O. Koroma] The point which is now sought to be made is the fact that the Court did not grasp the opportunity which the present case presented, as well as the circumstances surrounding it, to carry out a juristic as well as a judicial reappraisal of Article 36 of the Statute, a provision which is not only fundamental to the two Parties in this case but also pivotal in determining whether compulsory jurisdiction has been properly invoked and the Court rightfully seised of the matter. In view of the fact that this provision is so crucial to both Parties for the establishment of the jurisdiction of the Court, and in view of the fact that the Judgment in the Right of Passage case not only was rendered more than 40 years ago but has been the subject of repeated calls for reconsideration, it would have been more than timely for the Court to undertake a reappraisal both of the provision of the Statute and the Judgment itself. Regrettably the Court appears to have adopted an uncritical approach to that Judgment, basing itself mainly on the Judgment to reach its decision in the present case. Whatever may be the merits or demerits of that Judgment, and many eminent scholars of the jurisprudence of the Court have taken issue with it, Nigeria specifically requested the Court to review the Judgment, given the circumstances of the present case, and in the interests of justice. Since that Judgment was delivered, not only have many changes taken place in the practice of States, but international law has developed in a way which should have some bearing an the Right of Passage case and on the meaning of the Article. It is my view that, while the Judgment in the Right of Passage case bears on the present case, it should not have controlled its outcome, as it would seem to have done.
Moreover, it is an important principle of this Court that it does not recognize the principle of stare decisis - the principle of binding precedent does not apply in the Court. It is also part of the Court's jurisprudence that even when legal principles are accepted by the Court in a particular case, they are not regarded as binding upon other States or in other disputes. The Court has the power and the duty to depart from previous decisions when this is necessary and in the interests of justice. To my mind, the present case before it is just such a case.
With regard to this case, it should be recalled that Article 38 of the Statute provides that the Court in deciding disputes should do so in accordance with international law, and should apply:
"(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
...
(d) subject to the provisions of Article 59, judicial decisions ... as subsidiary means for the determination of rules of law."
In other words the Article establishes a hierarchy as to the application of the law, and the Court is called upon to determine - to find out - what the existing law is in respect of the dispute before it and to apply that law. The Court has, on the whole, shown a tendency to develop the law, to interpret the law and not to consider itself burdened or bound by previous decisions.
It is a well-established principle of international law, and one accepted by the Court's jurisprudence, that the jurisdiction of the Court is based on consent. In other words, a State may not be compelled to submit to the jurisdiction of the Court without its consent. In this regard, for the Court to assume jurisdiction on the basis of a declaration made under Article 36 of the Statute, the Court has to ensure that jurisdiction has been conferred on it; such conferment cannot be presumed. Article 36, paragraphs 2 and 4, provide as follows
"2. The 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 in all legal disputes concerning
(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.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court."
When this provision is interpreted and given its plain and natural meaning, it follows that, for a State to be in a position to invoke the jurisdiction of the Court, under Article 36, paragraph 2, of the Statute and to seise the Court of a matter, it must first of all have made a declaration recognizing the jurisdiction of the Court; such a declaration must have been deposited with the Secretary-General of the United Nations, who should have transmitted copies thereof to the parties to the Statute and to the Registrar of the Court.
In other words, when a State makes a declaration in conformity with the Article, that State not only assumes the obligations embodied in the provision, including the obligation to accept the jurisdiction of the Court, but also acknowledges that such acceptance, if the Statute is to be complied with, can only be effected after the Secretary-General has transmitted copies of the declaration, and, in the absence of such transmission, parties to the Optional Clause system cannot be aware that another State has become a party to the system. While it is true that the object and purpose of the Optional Clause system is to ensure advance acceptance of the jurisdiction of the Court, it is essentially the case that, by making a declaration, a State is not making a commitment to bring another party before the Court, but indicating a willingness to be brought before the Court. In the absence of the transmission of copies of the declaration, there will be no knowledge that the declarant State can be brought before the Court.
[pp. 395-396 D.O. Ajibola] In its Judgment in the Right of Passage case in 1957, the Court observed that by merely depositing its declaration of acceptance with the Secretary-General of the United Nations, the accepting State automatically becomes a party to the Optional Clause system in relation to any other declarant State. The Court employed the word "contractual" and stated that: "The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established ..." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146.) If, therefore, such a deposit of a declaration of acceptance is considered to be an offer to States parties to the Statute which have not yet deposited their declarations, the important question is when (ratione personae and ratione temporis) can it be said that such an offer has been accepted by a new declarant State? The decision of the Court in 1957 and in all other similar cases, like the Temple of Preah Vihear case, is that such an offer is deemed to have been accepted on the date of the deposit of the new acceptance declaration with the Secretary-General of the United Nations.
The Court stated in this case that:
"The only formality required is the deposit of the acceptance with the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute." (Temple of Preah Vihear, Preliminary Objections, Judgment, I.C.J. Reports 1961, p. 31.)
Although the subject of formation of contracts by correspondence varies from one domestic legal system to another, it is nevertheless indisputable that an offer must be communicated to the offeree before a contract can be considered binding. Judge Badawi, in his dissenting opinion in the Right of Passage case, confirmed this view when he observed:
"Whatever that moment may be, the position in the present case is that, in any event, and whatever criterion or moment may be adopted with regard to the formation of a contract by correspondence, it was prior to that moment. The present case is similar to one in which there is an offer which has not yet been dispatched." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 157.)
It is difficult to perceive of a situation whereby a contract is considered as binding on a party when that party is unaware of the content and terms of that contract. There is therefore a cardinal prerequisite condition that the other party be notified that its offer had been accepted. This is the obvious omission in this case. Nigeria was not informed about Cameroon's Declaration before it (Cameroon) filed its Application before the Court.
[p. S.O. Weeramantry] 53. Much was made in argument of the negative effects that would ensue to the optional jurisdictional system if the Court were to hold that the reservations clause does not exclude the matter in question from the jurisdiction of the Court. It seems to me, however, that apart from the non judicial nature of this argument, it is the Courts mission to uphold the integrity of its jurisdiction so far as has been entrusted to it by the optional clause system. I have referred earlier to this area of judicial jurisdiction as a haven of legality within the international system. Within that protected area, it is important that the rule of law should prevail, irrespective of such considerations as the favourable or unfavourable reception of the Court's determinations in relation to its jurisdiction
54. It may indeed be argued, on the contrary, that the preservation of legality within the system would strengthen rather than undermine its integrity. I do not think it is open to the Court, if a violation of a bedrock principle of international law is brought to its attention, to pass by this illegality on the basis that it is subsumed within the reservations clause. Such an approach could well weaken not only the authority of the Court, but also the integrity of the entire system of international law, which is a seamless web, and cannot be applied in bits and pieces. It is within this seamless fabric of international law that the entire optional clause system functions, and that consent to the Court's jurisdiction must be construed.
| 1 | Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J Reports 1957, p. 125. |
| 2 | I.C.J. Reports 1957, p. 146. |
| 3 | Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 157. |
| 4 | I.C.J. Yearbook 1959-1960, p. 255. |
| 5 | Ibid., p. 242. |
