|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.3.||The Optional Clause|
Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Order of 2 June 1999
[p. S.O. Oda] 9. Belgium, Canada, the Netherlands and Portugal have accepted the compulsory jurisdiction of the Court in their respective declarations, deposited by Belgium on 17 June 1958, by Canada on 10 May 1994, by the Netherlands on 1 August 1956 and by Portugal on 19 December 1955. As no reservation directly relevant to the present issues has been included in the declarations of the four States mentioned above, it might be argued that the exercise of the Court's jurisdiction is justified under Article 36, paragraph 2, of the Statute in the cases of the Applications addressed to those four States. Literally interpreted, the declaration of the Federal Republic of Yugoslavia (assuming that the Federal Republic of Yugoslavia is indeed a party to the Statute of the Court and that the Federal Republic of Yugoslavia's declaration was legitimately registered) may be claimed as being valid in relation to other States which have made a similar declaration. However, I hold the view that acceptance by the Federal Republic of Yugoslavia of the Court's jurisdiction only a matter of days before it filed its Applications with the Court in these cases is not an act done in good faith and is contrary to the proper concept of acceptance of the compulsory jurisdiction of the Court under the "optional clause" in the Statute.
[pp. S.O. Oda] 13. The "optional clause" in effect plays a double role: one positive, in that it may on occasion enable a unilateral application to succeed, and the other negative, in that it may sometimes result in a respondent being brought to the Court against its will. Thus a State, by declaring its acceptance of the compulsory jurisdiction of the Court, may seek to acquire locus standi in a case in which the odds are in its favour, but on the other hand it may, where it feels placed at a disadvantage, try to release itself from the compulsory jurisdiction of the Court by the termination or amendment of its declaration.
It has always been the desire of States, when faced with an application that in their view clearly lacks bona fides, to escape from their acceptance of the compulsory jurisdiction of the Court. The fact remains - and this is what I want to stress - that the judicial settlement of international disputes still remains in the hands of those States that are genuinely willing to defer to the International Court of Justice.
14. All of these facts indicate that some States accept the compulsory jurisdiction of the Court out of their good will but on the understanding that other States have the same good intentions. If this good faith is lacking, the system of acceptance of the compulsory jurisdiction of the Court cannot work in the manner in which the drafters of the Statute intended.
Past practice reveals, in cases brought unilaterally in which preliminary objections made by the respondent States were overcome, that there have been only a few cases in which the judgments on the merits were properly complied with. This indicates the reality of judicial settlement in the world community. If States are brought to the Court against their will, then no real settlement of the dispute will follow. I feel that, even if a 12-month or similar exclusion clause is not included in a State's declaration, all States should have the right to refuse to be drawn into a case that is obviously not brought bona fide.
15. Generally speaking, I also believe that there should be some means of excluding from the Courts jurisdiction applications which may not have bona fide intentions or motives and that some provision should be made for such exclusion in the basic concept of the declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. It should be noted that, as a basic concept of international judiciary, the cornerstone of the granting by sovereign States of jurisdiction to the International Court of Justice in a dispute has always been the consent of those States.
16. In my view, it would be extremely odd to have a situation where the Court apparently has prima facie jurisdiction only for those States (Belgium, Canada, the Netherlands and Portugal) that have simply failed to include in their declarations an exclusion clause protecting their interests, while Spain and the United Kingdom are, because of their exclusion clauses, released from the Courts jurisdiction in the present cases (which in fact cover exactly the same subject). I accordingly consider, in the light my finding in paragraph 9 above as to Yugoslavia's lack of good faith, that the Applications instituting proceedings against these four States also (namely, Belgium, Canada, the Netherlands and Portugal) should likewise be found inadmissible.