3
Nations, and which met at The Hague, in the months of June and July of 1920. On that
occasion there were those who favoured the pure and simple recognition of the
compulsory jurisdiction of the future PCIJ, to what the more powerful States were
opposed, alleging that they had gradually to come to trust the international tribunal to
be created, before conferring upon it compulsory jurisdiction tout court. In order to
overcome the deadlock within the Committee of Jurists referred to, one of its members,
the Brazilian jurist Raul Fernandes, proposed the ingenuous formula which was to
become Article 36(2) of the Statute - the same as the one of the present Statute of the
ICJ, - which came to be known as the "optional clause of the compulsory jurisdiction" 6.
The Statute, approved on 13.12.1920, entered into force on 01.09.1921 7.
7.
At that time, the decision that was taken constituted the initial step that, during
the period of 1921-1940, contributed to attract the acceptance of the compulsory
jurisdiction - under the optional clause - of the PCIJ by a total of 45 States 8. This
principle was firmly supported by the Latin-American States, and, in bearing it in mind,
the formula of Raul Fernandes 9, incorporated into the Statute of the PCIJ, was
acclaimed as a Latin-American contribution to the establishment of the international
jurisdiction 10. Such formula served its purpose in the following two decades.
8.
At the San Francisco Conference of 1945, the possibility was contemplated to
take a step forward, with an eventual automatic acceptance of the compulsory
jurisdiction of the new ICJ; nevertheless, the great powers - in particular the United
States and the Soviet Union - were opposed to this evolution, sustaining the retention,
in the Statute of the new ICJ, of the same "optional clause of compulsory jurisdiction"
of the Statute of 1920 of the predecessor PCIJ. The rapporteur of the Commission of
Jurists entrusted with the study of the matter at the San Francisco Conference of 1945,
the French jurist Jules Basdevant, pointed out that, although the majority of the
members of the Commission favoured the automatic acceptance of the compulsory
6
.
Cf. R.P. Anand, Compulsory Jurisdiction of the International Court of Justice, New Delhi/Bombay, Asia
Publ. House, 1961, pp. 19 and 34-36.
7
.
For an account, cf., inter alia, J.C. Witenberg, L'organisation judiciaire, la procédure et la sentence
internationales - Traité pratique, Paris, Pédone, 1937, pp. 22-23; L. Gross, "Compulsory Jurisdiction under the
Optional Clause: History and Practice", The International Court of Justice at a Crossroads (ed. L.F. Damrosch),
Dobbs Ferry/N.Y., ASIL/Transnational Publs., 1987, pp. 20-21.
8
.
Cf. the account of a Judge of the old PCIJ, M.O. Hudson, International Tribunals - Past and Future,
Washington, Carnegie Endowment for International Peace/Brookings Institution, 1944, pp. 76-78. - That total
of 45 States represented, en reality, a high proportion, at that epoch, considering that, at the end of the
thirties, 52 States were members of the League of Nations (of which the old PCIJ was not part, distinctly from
the ICJ, which is the main judicial organ of the United Nations, and whose State forms an organic whole with
the United Nations Charter itself).
9
.
In his book of memories published in 1967, Raul Fernandes revealed that the Committee of Jurists of
1920 was faced with the challenge of establishing the basis of the jurisdiction of the PCIJ (as from the mutual
consent among the States) and, at the same time, of safeguarding and reaffirming the principle of the juridical
equality of the States; cf. R. Fernandes, Nonagésimo Aniversário - Conferências e Trabalhos Esparsos, vol. I,
Rio de Janeiro, M.R.E., 1967, pp. 174-175.
10
.
J.-M. Yepes, "La contribution de l'Amérique Latine au développement du Droit international public et
privé", 32 Recueil des Cours de l'Académie de Droit International de La Haye (1930) p. 712; F.-J. Urrutia, "La
Codification du Droit International en Amérique", 22 Recueil des Cours de l'Académie de Droit International de
La Haye (1928) pp. 148-149; and cf. M. Bourquin, "Règles générales du droit de la paix", 35 Recueil des Cours
de l'Académie de Droit International de La Haye (1931) pp. 195-196.