1 See Preuss, , “The International Court of Justice, the Senate, and Matters of Domestic Jurisdiction,” 40 A.J.I.L. 720–736, at 733 (1946)Google Scholar. Preuss noted that, in the Senate debate on the Connally Amendment, “Perhaps this legal situation was insufficiently comprehended for none of the proponents of the Amendment appeared to envisage the possibility that the United States would ever appear before the Court as a ‘plaintiff’ seeking judicial recognition of its legal claims.” In his defense of the Amendment, Francis O. Wilcox was not unaware of this possibility as well as of the reciprocity impact, but concluded optimistically that” it should not be forgotten that the United States can now sue any other declaring state. Since we have always been an important claimant state this should prove a very real advantage.” See “The United States Accepts Compulsory Jurisdiction,” ibid. 699–719, at 712 and 718 f. For a discussion of the arguments for and against repeal, see Arthur Larson, When Nations Disagree 119 ff. and 136 ff. (1961).

2 Interhandel Case, Judgment of March 23, 1959, [1959] I.C.J. Rep. 6, at 119 (dissenting opinion of Sir Hersch Lauterpacht).

3 1959–1960 I.C.J. Yearbook 256.

4 For a discussion of the relevant issues, see Briggs, , “Reservations to the Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” 93 Hague Academy Recueil des Cours 223–367, at 344 ff. (1958, I)Google Scholar. The other case in which the United States was the respondent is the Case Concerning Bights of Nationals of the United States of America in Morocco (France v. U.S.A.), [1952] I.C.J. Rep. 22, 176.

5 [1959] I.C.J. Rep. 127.

6 1959–1960 I.C.J. Yearbook 77; [1959] I.C.J. Rep. 264. The order of the Court removing the case from the General List issued on Aug. 3, 1959.

7 [1960] I.C.J. Rep. 146, 147.

8 Ibid. 146.

9 Rosenne, , “La Cour Internationale de Justice en 1960,” 65 Revue Gén, de Droit Int. Public 1–54, at 3 (1961)Google Scholar.

10 [1957] I.C.J. Rep. 9, at 27.

11 Ibid. 61. For an analysis of the ease and the views of other members of the Court, see Briggs, loc. cit. 336–344.

12 I.C.J. Pleadings, Interhandel Case 72, 76, 77.

13 Public Hearing of Oct. 12, 1957, ibid. 452 f., and Public Hearing of Oct. 14, 1957, ibid. 466. See Briggs, loc. cit. 347 f.

14 Interhandel Case (Interim Measures of Protection), Order of Oct. 24, 1957, [1957] I.C.J. Rep. 105, at 112. The Court took note of the statement by the United States that it “is not taking action at the present time to fix a time schedule for the sale of such shares.” Ibid.

15 “ It seems difficult to imagine that the Court should wish to express an opinion, even in summary fashion, upon so complex and delicate a question as the validity of the American reservation in the context of the procedure for the indication of interim measures of protection.” (Author’s translation.) Pleadings 462 f., Oral Hearing of Oct. 14, 1957. The Court quoted part of this statement in its Order, [1957] I.C.J. Rep. at 111.

16 1958 Proceedings, American Society of International Law 267–269.

17 Public Hearing of Nov. 6, 1958, Pleadings 320, 507; Public Hearing of Nov. 14, 1958, ibid. 610,

18 [1959] I.C.J. Rep. 6, at 30,

19 Ibid, at 26. For a discussion of this aspect of the Interhandel Case, see Briggs, loc. cit. 359 ff., and in 53 A.J.I.L. 547 at 557 ff. (1959).

20 [1959] I.C.J. Rep. at 118.

21 I.C.J. Pleadings, Aerial Incident of July 27, 1955 (Israel v. Bulgaria; United States of America v. Bulgaria; United Kingdom v. Bulgaria), p. 22 f. This volume will be cited hereinafter as “I.C.J. Pleadings, Aerial Incident.”

22 Ibid, at 24.

28 Ibid. at 23.

24 “against the outrageous terms which the agent of the United States Government has seen fit to use in his application, leaving to the Members of the Court the evaluation of such unprecedented conduct in international judicial practice.” (Translation.) Exceptions Préliminaires du Gouvernement de la République Populaire de Bulgarie (Déclinatoire de Compétence). Ibid at 278 f.

25 See note 5 above.

26 Observations and Submissions of the Government of the United States on the Preliminary Objections of the Government of the People’s Republie of Bulgaria, I.C.J. Pleadings, Aerial Incident at 310.

27 The date of the liquidation of the Permanent Court of International Justice.

28 I.C.J. Pleadings, Aerial Incident at 320; see also pp. 307, 315, 316,

29 [1961] I.C J. Rep. 17, at 29.

30 Exceptions Préliminaires at 276 ff.

31 “If the applicant party were permitted in its application to pass over in silence its declaration of acceptance of the optional clause in order to invoke it validly [at a later stage of the proceedings], then this would be tantamount to allowing it deliberately to mislead the respondent as to its intentions for the purpose of rendering it impossible for the latter to take advantage of the reservations included in that declaration.” (Author’s translation.) I.C.J. Pleadings, Aerial Incident at 276.

32 “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.”

33 Case concerning Eight of Passage over Indian Territory (Preliminary Objections), judgment of Nov. 26, 1957, [1957] I.C.J. Rep. 125, at 146. Italics in the original of the Bulgarian Exceptions Préliminaires at 274.

34 Nottebohm Case (Preliminary Objection), Judgment of Nov. 18, 1953, [1953] I.C.J. Rep. 111, at 122. Italics in the original Bulgarian Exceptions Préliminaires at 274.

35 See p. 362 above.

36 Written Observations, I.C.J. Pleadings, Aerial Incident at 306 and 322.

37 Ibid, at 303.

38 Rosenne, , The International Court of Justice 289–291, 368 (1957)Google Scholar.

39 Ibid. 371 f.

40 Exceptions Préliminaires, I.C.J. Pleadings, Aerial Incident at 271 f.

41” A subsequent renunciation by the United States of the restrictive clauses of its Declaration of 1946, in any concrete case and -with respect to a particular State, is contrary to the Statute and could have no influence in the pending proceedings. For by dint of such an ad hoc renunciation, motivated solely by opportunistic considerations, the Government of the United States would aim to preserve for the future and in all cases in which it would be the respondent the benefit of its own reservation without being exposed to its drawbacks in cases in which it was the plaintiff.” (Author’s translation.) Ibid, at 273. Italics in the original.

42 “[The Bulgarian Government] cannot admit that matters which it rightfully determines as being essentially within its domestic jurisdiction should be considered, directly or indirectly, before the Court. It requests, accordingly, that the Court declare itself without competence to adjudicate upon the application of the Government of the United States.” (Author’s translation.) Ibid, at 272.

43 The Connally Amendment reservation.

44 Written Observations at 308.

45 Ibid, at 324 f.

46 In this connection of. the Judgment of the Court of Nov. 20, 1950, in the Asylum Case (Colombia/Peru), [1950] I.C.J. Rep. 266 at 275 f.

47 Written Observations at 325.

48 At this point the United States referred to the Case of the Tunis-Morocco Nationality Decrees, P.C.I.J. Pub., Ser. B, No. 4 (1923), but without a citation.

49 Written Observations at 325.

50 The Connally Amendment reservation.

51 Written Observations at 323.

52 The passage as quoted from 92 Cong. Bee. 10,695 (1946) is as follows:

“Several Senators have argued that by this amendment the United States would put itself in the position of corruptly and improperly claiming that a question is domestic in nature when it is not, thereby taking advantage of an international dispute and saying that since the question is domestic, we will not abide by the decision of the Court. Mr. President, I have more faith in my Government than that. I do not believe the United States would adopt a subterfuge, a pretext, or a pretense in order to block the judgment of the Court on any such grounds.”

53 Written Observations at 323.

54 Pleadings, Interhandel Case 452–453.

55 Pleadings 410 ff., 580. See also the oral argument of the Swiss Agent, Professor Sauser-Hall, ibid. 582 ff., 597 f.

56 Written Observations, I.C.J. Pleadings, Aerial Incident at 323.

57 This letter, as well as the written observations, was signed by Mr. Eric H. Hager, Agent of the TJ. S. A. I.C.J. Pleadings, Aerial Incident at 677.

58 [1960] I.C.J. Rep. 146.

59 Loc. cit. at 267. Italics in the original.

60 Written Observations, I.C.J. Pleadings, Aerial Incident at 330.

61 “ In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

62 [1957] I.C.J. Rep. 9, at 27.

63 This, it is suggested, may have been the meaning of the Bulgarian contention that the United States, having failed to indicate unequivocally the basis of referring the dispute to the Court, was precluded from invoking the reservation contained in its declaration of acceptance at a later stage of the proceedings. Page 364 f. above. The Bulgarian Government might have been more concerned with the possibility that the United States might place upon the reservation an interpretation disadvantageous to Bulgaria, as it actually did, and thereby place Bulgaria in an unfavorable situation.

64 Ibid, 25–26.

65 [1957] I.C.J. Rep. 105, at 112.

66 Ibid. at 111.

67 [1959] I.C.J. Rep. 6, at 26 and 29.

68 Guggenheim, , “Der sogenannte automatische Vorbehalt der inneren Angelegenheiten gegenüber der Anerkemmng der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofes in seiner neuesten Gerichtspraxis,” in Zemanek, K. (ed.), Völkerrecht und Rechtliches Weltbild 116–132, at 131 (Festschrift für Alfred Verdross, 1960)Google Scholar.

69 Ibid. at 127.

70 [1957] I.C.J. Rep. 9, at 25 ff.

71 Ibid, at 69; and Guggenheim, loc. cit. at 128.

72 [1957] I.C.J. Rep. at 26.

73“. . . It is certain that a reservation of this kind should be interpreted in good faith and that a Government would commit an abuse of right if it sought the protection of the reservation in order to deny the jurisdiction of the Court in a case which manifestly did not relate to ‘matters which are essentially within its domestic jurisdiction.’ The Court would know how to defend itself against such an abuse.”

It is possible, however, to agree that within these limits the declarant State, under this reservation, has the right to evaluate freely the nature of the matter at issue. This freedom of appreciation is all the more comprehensive as the formula relates to matters which are essentially, and not merely solely, within the domestic jurisdiction (as was the case in Article 15, par. 8 of the Covenant of the League of Nations).” (Author’s translation.) I.C.J. Pleadings, Case of Certain Norwegian Loans (France v, Norway), Vol. I, p. 131.

74 “The permissible limits of a normal application of the so-called automatic reservation are certainly transgressed if a State invokes it in a matter which is totally foreign to the reserved domain. In maintaining that the so-called automatic reservation of the United States cannot be invoked validly against Switzerland in the pending case, we remain within the four corners of a prudent application of the doctrine. The doctrine does not allow for an arbitrary exercise of the discretionary powers which an international convention confers upon a State.” (Author’s translation.) I.C.J. Pleadings, Interhandel Case (Switzerland v. U. S. A.) 579. See also Guggenheim, loo. cit. at 129.

75 Briggs, loc. cit. 362–363. Briggs relies here on the following passage in the judgment in the Nottebohm Case:

“When an Application is filed at a time when the law in force between the parties entails the compulsory jurisdiction of the Court—which was the case between Guatemala and Liechtenstein on December 17th, 1951—the filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects in respect of the claim advanced in the Application. Once this condition has been satisfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits. An extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established.” [1953] I.C.J. Rep. 111 at 123.

The essential point in Briggs’ argument, as elaborated elsewhere, is that a proper seisin empowers the Court to exercise incidental jurisdiction, and this includes the power to adjudicate upon a plea to its jurisdiction pursuant to Art. 36, par. 6, of the Statute. This is so, he maintains, because the states parties to a dispute have consented to the Statute as part of the Charter, and this consent cannot be set aside by subsequent declarations of acceptance. See his “The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction,” in Zemanek (ed.), Völkerrecht und Rechtliehes Weltbild 87–95 (Festschrift für Alfred Verdross, 1960); for a more recent and slightly modified version, see his “La Compétence Incidente de la Cour Internationale de Justice en tant que Compétence Obligatoire,” 64 Revue Gén. de Droit Int. Pub. 217–229 (1960). This line of reasoning, in a somewhat modified form, is developed below.

76 Briggs, 93 Hague Academy Recueil des Cours at 363 (1958).

77 Ibid.

78 Thus Judge Lauterpaeht in his dissenting opinion in the Interhandel Case, [1959] I.C.J. Rep. 6, at 115. But see pp. 372 ff. above.

79 Judge Lauterpaeht, ibid, at 113; and see also Judge Lauterpaeht’s individual opinion in the Norwegian Loans Case, [1957] I.C.J. Rep. 9, at 42, 52.

80 Judge Lauterpaeht in the Norwegian Loans Case, at 47 f. But see p. 373 above.

81 Nottebohm Case (Preliminary Objection), Judgment of Nov. 18, 1953, [1953] I.C.J. Rep. 111 at 119. Italics supplied.

82 See Georges Berlia, “Jurisprudence des Tribunaux Internationaux en ce qui concerne leur compétence,” 88 Hague Academy Recueil des Cours 105–157 (1955, II).

83 “ In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

84 The resulting duty of the Court to apply Art. 36, par. 6, was noted by Judge Lauterpacht in the Norwegian Loans Case, loc. cit. at 43 f., and Judge Klaestad in the Interhandel Case, loc. cit. at 76 f.

85 Said Judge Lauterpacht: “If thus practically every matter can be plausibly, though not necessarily accurately, described as a matter essentially within the domestic jurisdiction of the State concerned and if that State is the sole judge of the question, it is clear that, as the result, the element of legal obligation is reduced to a vanishing point.” Case of Certain Norwegian Loans, Judgment of July 6, 1957, [1957] I.C.J. Rep. 9, at 52. Preuss, loc. cit. at 729, had already observed: “The effect of the Connally Amendment is to give the United States a veto upon the jurisdiction of the Court after a dispute has been referred to it by an applicant state.”