¹ H.C. Deb. (Can.), 1970, April 8, at 5623–24.

² Hudson, Manley O., The Permanent Court of International Justice, 1920–1942, at 449–52 (New York, 1943)Google Scholar, (hereafter cited as Hudson).

³ Referred to by Hambro, Edvard, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice,” 25 Brit. Yb. Int’l L. 133–58, at 143 (1948)Google Scholar, (hereafter cited as Hambro).

⁴ Waldock, C. H. M., “Decline of the Optional Clause,” 32 Brit. Yb. Int’l L. 244–87, at 247 (1955-56)Google Scholar, (hereafter cited as Waldock). See too: Briggs, Herbert W., “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice,” 93 Recueil des Cours 223–365 (1958)Google Scholar, (hereafter cited as Briggs); Shihata, Ibrahim F. I., The Power of the International Court to Determine Its Own Jurisdiction (The Hague, 1965)CrossRefGoogle Scholar, (hereafter cited as Shihata); Lawson, Ruth C., “The Problem of the Compulsory Jurisdiction of the World Court,” 46 Am. J. Int’l L. 219–39 (1952)CrossRefGoogle Scholar; Maus, Bertrand, Les réserves dans les déclarations d’acceptation de la juridiction obligatoire de la C.I.J. (Genève, 1959)Google Scholar; Holloway, Kaye, Modern Trends in Treaty Law 652–98 (London, 1967)Google Scholar; O’Connell, D. P., International Law, Vol. 2 at 1168–79 (London, 1965)Google Scholar.

⁵ Waldock, 251.

⁶ Ibid., 252.

⁷ Phosphates Case, P.C.I.J., Series A/B, No. 74, at 21–30.

⁸ Electricity Case, P.C.I.J., Series A/B, No. 77, at 75-85.

⁹ Anglo-Iranian Case, [1952] I.C.J. Rep. 93, per Alvarez at 125.

¹⁰ Right of Passage Case, [1957] I.C.J. Rep. 125. “In fact there is no difficulty in visualizing the Declaration of Acceptance as an accession to a multilateral treaty in the same way as, in the case of various conventions concluded under the auspices of the United Nations, Governments accede to a text established by the General Assembly.” Norwegian Loans Case, [1957] I.C.J. Rep. 9, Separate Opinion of Sir Hersch Lauterpacht, at 49.

¹¹ Waldock, 254.

¹² Ibid.

¹³ Rosenne, Shabtai, The International Court of Justice: An Essay in Political and Legal Theory 317 (Leyden, 1957Google Scholar) (hereafter cited as Rosenne, International Court).

¹⁴ Ibid.

¹⁵ Rosenne, Shabtai, The Law and Practice of the International Court 412 (Leyden, 1965)Google Scholar (hereafter cited as Rosenne, Law and Practice).

¹⁶ Ibid., 412–13.

¹⁷ Ibid., 414,

¹⁸ El Salvador, India, Kenya, Malta, Mauritius, New Zealand, Panama, Somalia, Sudan, Swaziland, United Arab Republic and United Kingdom.

¹⁹ Australia, Belgium, Gambia, Honduras, Israel, Liberia, Liechtenstein, Pakistan, Sweden, Switzerland, United States.

²⁰ Cambodia, China, Colombia, Denmark, Dominican Republic, Finland, France, Japan, Luxembourg, Malawi, Mexico, Netherlands, Nigeria, Norway, Philippines, Turkey, Uganda, Uruguay.

²¹ Hambro, 136–37; and to like effect see his later paper, “The Jurisdiction of the International Court of Justice,” 76 Recueil des Cours 121–214, at 184–187 (1950); Verzijl, J. H. W., “Affaire relative à certains emprunts Norvégiens,” 4 Netherlands International Law Review 373–407, at 381 (1957)CrossRefGoogle Scholar, stating emphatically that reciprocity is not embedded in paragraph 3; see also his very useful survey article entitled, “The System of the Optional Clause,” I International Relations (Journal of the David Davies Memorial Institute) 585–611, at 587–589 (1959), where the point is referred to again; and for further comment, see Holloway, supra note 4, at 664.

²² Briggs, 238–44; Hudson, 465; Rosenne, , International Court 312–16Google Scholar and Law and Practice 373–74, 384–85; Waldock, 255.

²³ Waldock, 255.

²⁴ Ibid., 257.

²⁵ Ibid.

²⁶ Anglo-Iranian Case, [1952] I.C.J. Rep. 103; Rosenne, , Law and Practice, 384.Google Scholar

²⁷ Hambro, , “The Jurisdiction of the International Court of Justice,” 76 Recueil des Cours 186–87 (1950)Google Scholar; Kelsen, , The Law of the United Nations 52627 (London, 1950)Google Scholar; Verzijl, supra note 21, at 381.

²⁸ Right of Passage Case, [1957] I.C.J. Rep. 125, 143.

²⁹ Ibid., 144.

³⁰ Briggs, 26a.

³¹ Briggs, 264–65.

³² Shihata, 149, suggesting that it should be as permissible for a state to make a declaration broader than Article 36(2), by dispensing with the requirement of reciprocity, as it is permissible for it to insist upon the narrowest interpretation of the Article, by inserting reservations. However, a mere assertion that the acceptance is made unconditionally would not be enough; the provision would have to be drafted in the clearest terms: ibid., 150. It is not likely that a state would ever wish to do this.

³³ Rosenne, , Law and Practice 388.Google Scholar

³⁴ Rosenne, Shabtai, The Time Factor in the Jurisdiction of the International Court of Justice 19–21 (Leyden, 1960)Google Scholar (hereafter cited as Rosenne, Time Factor); Shihata, 165–66; Waldock, 249–50.

³⁵ Shihata, 165, 380; Rosenne, , Time Factor 20.Google Scholar

³⁶ Denmark, Finland, Luxembourg, Netherlands, Norway, Sweden.

³⁷ Australia, Belgium, Cambodia, Japan, Liberia, New Zealand, Philippines, Portugal.

³⁸ China, Mexico, United States.

³⁹ Colombia, Dominican Republic, El Salvador, Haiti, Honduras, Malawi, Nicaragua, Nigeria, Panama, Uganda, United Arab Republic, Uruguay.

⁴⁰ Waldock, 263–65; Rosenne, , Time Factor 24Google Scholar; Shihata, 166–67.

⁴¹ However, the omission was not inadvertent; see Shihata, 167, note 1.

⁴² Waldock, 263–65; Fachiri, A. P., “Repudiation of the Optional Clause,” 20 Brit. Yb. Int’l L. 52–58, at 55–56 (1939)Google Scholar; Engel, Salo, “The Compulsory Jurisdiction of the International Court of Justice,” 40 Georgetown L. J. 41–67, at 54–60 (1951)Google Scholar; Hudson, 476.

⁴³ It is not clear who are the parties to the treaty or whether it is a bilateral treaty between the states engaged in litigation or a multilateral treaty between all the states accepting the Court’s compulsory jurisdiction: Rosenne, , Time Factor 26–27.Google Scholar

⁴⁴ Ibid., 27.

⁴⁵ Liechtenstein, Switzerland.

⁴⁶ Canada, France, Gambia, India, Israel, Kenya, Malta, Mauritius, Pakistan, Somalia, Sudan, Swaziland, United Kingdom.

⁴⁷ See supra note 37.

⁴⁸ Waldock, 366–67 (emphasis in the original); see too Fachiri, supra note 42, at 56: “The whole object of the Optional Clause is to create an effective system of compulsory jurisdiction, an object which would be entirely defeated if it were open to accepting states to withdraw at will since withdrawal at will means that the submission of any given dispute to the Court can always be prevented.”

⁴⁹ Waldock, 278–79.

⁵⁰ Rosenne, , Time Factor 50Google Scholar (emphasis added). In agreement: Briggs, 246–50; Shihata, 151–53; Debbasch, Charles, “La Compétence Ratione Temporis de la Cour Internationale de Justice Dan Le Système de la clause Facultative de Juridiction Obligatoire,” 31 Revue Générale de D.I.P. 230–60, at 252–55 (1960)Google Scholar.

⁵¹ Rosenne, , Time Factor 50Google Scholar.

⁵² Minagawa, Takeshi, “Operation of Reciprocity under the Optional Clause,” The Japanese Annual of International Law, No. 4, at 33–42 (1960)Google Scholar.

⁵³ Briggs, 277–78.

⁵⁴ Briggs, 278–79; Debbasch, 255; Waldock, 265 et seq.; “Project de Résolution sur la compétence obligatoire des instances judiciares et arbitrales inter-nationales,” 47 Annuaire de l’Institut de Droit International 218–21 (1957–1), and the reports to the Institute by Jenks, ibid., 34–200.

⁵⁵ Australia, Belgium, Canada, Finland, France, Gambia, India, Israel, Japan, Kenya, Liberia, Luxembourg, Malawi, Netherlands, New Zealand, Pakistan, Sudan, Sweden, Turkey, United Kingdom, United States.

⁵⁶ Rosenne, , Law and Practice 490Google Scholar; Time Factor 34–53.

⁵⁷ For example, by Australia, Belgium, Canada, India, Japan, Kenya, Luxembourg, Malawi, New Zealand, Sudan, Sweden, United Kingdom. For detailed discussion, see Sauverplanne, J. G., “Les Limitations Ratione Temporis Dans L’Application de la Clause Facultative,” 3 Netherlands International Law Review 342–55 (1956)CrossRefGoogle Scholar; and on the origins of the Belgian formula, see Pauw, Frans De, “La Declaration Belge du 3 April 1958 Acceptant La Juridiction Obligatoire De la Cour Internationale de Justice,” 1 Revue Belge de droit international 94–125 (1966)Google Scholar.

⁵⁸ Williams, Fischer, “The Optional Clause, The British Signature and Reservations,” II Brit. Yb. Int’l L. 63–85, at 74 (1930)Google Scholar; see too Rosenne, , Law and Practice 491Google Scholar, note 3.

⁵⁹ Rosenne, , Law and Practice 490–500Google Scholar, 292–96; Time Factor 37–46; Briggs, 283–91. Of primary importance is the definition of “dispute” because, unless there is a dispute and the time at which it arose can be determined, the Court has no competence to give a decision. “The concept of dispute is thus the nucleus around which the very notion of jurisdiction is constructed.” Unfortunately, the Court has provided very little by way of guidance. The classic definition was given in the Mavrommatis Palestine Concession Case, P.C.I.J., Ser. A, No. 2, at n (1924) : “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.” In most instances the differences will be delineated by diplomatic negotiations but in the absence of agreement in this respect it is probably enough — to justify the launching of an Application — that the parties have in fact manifested opposing opinions. In the Canadian case, members of the opposition parties asked why the government had deposited a new declaration before the bills in question had been discussed in the House of Commons. The Prime Minister replied in effect that the reservation had to be entered before First Reading if an American Application was to be avoided; which means that the government believed that the dispute would have been concretized on the basis of statements by the Prime Minister and other responsible Ministers and certainly by the time of First Reading in the House.

⁶⁰ P.C.I.J., Series A/B, No. 74, at 23.

⁶¹ Ibid., 24.

⁶² Ibid., 37.

⁶³ P.G.I.J., Seríes A/B, No. 77, at 82; and see Briggs, 286, note 1, referring to the dissenting opinion of Juge Ad Hoc Papazoff (Bulgaria) who held that the dispute must have no connection with earlier situations or facts.

⁶⁴ Rosenne, , Law and Practice 497Google Scholar.

⁶⁵ Phosphates Case, P.C.I.J., Series A/B, No. 74, at 24.

⁶⁶ 10 Economica 139, 140 (1930).

⁶⁷ Hambro, 144; in agreement Briggs, 290–95.

⁶⁸ However, Fischer Williams saw some merit in the reservation: “In the absense of any generally recognized period of limitation for international claims, it would be imprudent … to open the door to the legal discussion of all past controversies”: supra note 58, at 75.

⁶⁹ Briggs, 293; see too Goldie, L. F. E., “The Critical Date,” 12 Int’l & Comp. L. Q. 1251–85 (1963)CrossRefGoogle Scholar.

⁷⁰ Briggs, 296–301.

⁷¹ A formula similar to Canada’s is used by Australia, Belgium, Cambodia, France, Gambia, India, Israel, Kenya, Luxembourg, Malawi, Malta, Mauritius, Netherlands, New Zealand, Sudan, Swaziland, Turkey, United Kingdom. The reference is “to other tribunals” in the declarations of Liberia, Pakistan and the United States.

⁷² Shihata, 260. It goes without saying that the mere existence of the reservation cannot by itself justify a unilateral denunciation of the declaration.

⁷³ For comment on the Japanese formula, which restricts the exclusion to disputes referred “for final and binding decision to arbitration or judicial settle-ment,” see Taoka, R., “Japan and the Optional Clause,” The Japanese Annual of International Law 1–12, at 10 (1959)Google Scholar. The Optional Protocols concerning the Compulsory Settlement of Disputes adopted by the U.N. Conference on the Law of the Sea, Geneva, 1958, by the U.N. Conference on Diplomatic Intercourse and Immunities, Vienna, 1961, and by the U.N. Conference on Consular Relations, Vienna, 1963, use as alternatives to the Court’s compulsory jurisdiction the formula “unless some other form of settlement has been agreed upon by the parties within a reasonable period.” Quaere as to what happens if resort to “some other form of settlement” does not produce a settlement. At the Vienna Conference of 1963 the Japanese advocated adoption of the formula “unless the dispute is settled by an alternative method."

⁷⁴ Andrassy, J., Théoire et Pratique du Procès International 159 (1962)Google Scholar (mimeo lectures at Cairo).

⁷⁵ Hambro, supra note 3, at 147.

⁷⁶ Briggs, 298, suggesting that the reservation serves little purpose.

⁷⁷ Hambro, supra note 3, at 146.

⁷⁸ India, Canada, Iran, South Africa, New Zealand, and perhaps Roumania: see Hudson, 470.

⁷⁹ Briggs, 299.

⁸⁰ Fischer Williams, supra note 58, at 76.

⁸¹ Ibid., 78.

⁸² Kahng, Tae Jin, Law, Politics and The Security Council 230 (The Hague, 1964)CrossRefGoogle Scholar.

⁸³ Article 36(3) of the Charter. In the Anglo-Iranian Case (Preliminary Objection), [1952] I.C.J. Rep. 93, Iran reserved the right to invoke her reservation “to require that proceedings in the Court shall be suspended in respect of any dispute which has been submitted to the Council of the League of Nations” on the ground that the dispute in question had in fact been submitted to the Security Council and was under examination by that body. The United Kingdom argued that this contention was ill-founded and did not relate to the question of jurisdiction. The judgment did not deal with the point.

⁸⁴ Briggs, 299–300; Fischer Williams says that from a theoretical standpoint “this reservation is of all the British conditions the most significant and the most important” but he concludes that from a practical standpoint there is little value to it: supra note 58, at 76–79. For excellent analysis, see Shihata, 260–61.

⁸⁵ Australia, Ganada, Gambia, India, Kenya, Malta, Mauritius, New Zealand, United Kingdom.

⁸⁶ Pakistan, Uganda, Malawi, Swaziland.

⁸⁷ Fawcett, J. E. S., The British Commonwealth in International Law 144 et seq., 202–09 (London, 1963).Google Scholar

⁸⁸ The Imperial Conference of 1930 examined a proposal to create a Commonwealth Tribunal for the determination of inter-Commonwealth disputes and the idea was revived at the Prime Ministers’ Conference of 1960, but no concrete action has been taken: Cooray, E. J., “A Commonwealth Court,” 43 Journal of the Parliaments of the Commonwealth 347–53 (1962)Google Scholar.

⁸⁹ Memorandum on the Signature of the Optional Clause, Cmd. 3452, 1929, at 12, quoted by Briggs, 310. It has been suggested that Australian, New Zealand, and South African officials believed the reservation necessary to protect national policies on immigration: Howell, John M., “Domestic Jurisdiction,” in Wilson, Robert R.(ed.), The International Law Standard and Commonwealth Developments 145 (Duke U.P., Durham, 1966)Google Scholar and sources there cited.

⁹⁰ Hudson, 470–71; Briggs, 309–12.

⁹¹ However, see Howell, op. cit. supra note 89, at 140, who says that at the time of the drafting of the League Covenant British countries showed a marked disposition to safeguard the domestic jurisdiction concept, placing it higher, in the opinion of Professor G. M. Carter, than establishing an effective international organization.

⁹² Oppenheim, II, International Law 62 (7th ed., by Lauterpacht, H., 1952),Google Scholar stating that the domestic jurisdiction reservation is “unsound and unnecessary”; Bleicher, Samuel A., “ICJ Jurisdiction: Some Considerations and a Proposed American Declaration,” 6 Columbia Journal of Transnational Law 60–90, at 64–69 (1967)Google Scholar.

⁹³ Australia, Cambodia, Canada, France, Gambia, India, Israel, Kenya, Malta, Mauritius, New Zealand, Pakistan, Swaziland.

⁹⁴ The Secretary of State for External Affairs (Hon. Mitchell Sharp), H.C. Deb. (Can.), 1970, April 16, at 5951. For convenient summary of much of the Parliamentary debate, see International Canada, April 1970, at 79–86.

⁹⁵ The Secretary of State for External Affairs, H.C. Deb. (Can.), 1970, April 16, at 5948–53 and 6016. Mr. T. C. Douglas, leader of the New Democratic Party, observed that “criticism of this country by the United States with regard to not referring this matter to the International Court comes with poor grace from a country that adopted the Connally amendment in August, 1946…” ibid., 5946. See too Johnston, Douglas M., “Canada’s Arctic Marine Environment: Problems of Legal Protection,” 29 Behind the Headlines 1–8 (1970)Google Scholar.

⁹⁶ The Secretary of State for External Affairs, H.C. Deb. (Can.), 1970, April 16, at 5952.

⁹⁷ This reservation appeared in the 1958 British declaration and was copied by Kenya, Malawi, Malta, Mauritius, Somali and Swaziland.

⁹⁸ This is not the place to review the reasons for the Court’s lack of business; see in that connexion Dalfen, Charles M., “The World Court: Reform or Re-Appraisal,” 6 Canadian Yearbook of International Law 212–26 (1968)CrossRefGoogle Scholar. What I have tried to suggest in this paper is that the Optional Clause is becoming (if it has not already become) too uncertain and too complex to be an attractive method of settling disputes. Why go the paragraph 2 route when paragraph 1 is available?