4
jurisdiction, there was no political will at the Conference (and nor in the Dumbarton
Oaks proposals) to take this step forward 11.
9.
Consequently, the same formulation of 1920, which corresponded to a
conception of international law of the beginning of the XXth century, was maintained in
the present Statute of the ICJ. Due to the intransigent position of the more powerful
States, a unique opportunity was lost to overcome the lack of automatism of the
international jurisdiction and to foster a greater development of the compulsory
jurisdiction of the international tribunal 12. It may be singled out that all this took place
at the level of purely inter-State relations. The formula of the optional clause of
compulsory jurisdiction (of the ICJ) which exists today, is nothing more than a scheme
of the twenties, stratified in time 13, and which, rigorously speaking, no longer
corresponds to the needs of the international contentieux not even of a purely interState dimension 14.
10.
Such is the case that, in 1997, for example, of the 185 member States of the
United Nations, no more than 60 States were subject to the compulsory jurisdiction of
the ICJ by acceptance of the optional clause of Article 36(2) of its Statute 15, - that is,
less than a third of the international community of our days. And several of the States
which have utilized it, have made a distorted use of it, denaturalizing it, in introducing
restrictions which militate against its rationale and which deprive it of all efficacy. In
reality, almost two thirds of the declarations of acceptance of the aforementioned
clause have been accompanied by limitations and restrictions which have rendered
them "practically meaningless" 16.
11
.
Cf. the account of R.P. Anand, op. cit. supra n. (6), pp. 38-46; and cf. also, on the issue, S. Rosenne,
The Law and Practice of the International Court, vol. I, Leyden, Sijthoff, 1965, pp. 32-36; Ian Brownlie,
Principles of Public International Law, 4th. ed., Oxford, Clarendon Press, 1995 (reprint), pp. 715-716; O.J.
Lissitzyn, The International Court of Justice, N.Y., Carnegie Endowment for International Peace, 1951, pp. 6164.
12
.
As human unreasonableness seems to have no limits, the chapter of international law pertaining to
the peaceful settlement of international disputes continued to suffer from the old ambivalence - a true vexata
quaestio - which has always characterized it, also in our days, namely, the ineluctable tension between the
general duty of peaceful settlement and the free choice by the States of the methods of settlement of the
dispute.
13
.
For expressions of pessimism as to the practice of States under that optional clause, at the end of
the seventies, cf. J.G. Merrills, "The Optional Clause Today", 50 British Year Book of International Law (1979)
pp. 90-91, 108, 113 and 116.
14
.
In a recent article, a former President of the ICJ, after pointing out that "nowadays a very
considerable part of international law directly affects individuals, corporations and legal entities other than
States", and of recalling that, nevertheless, the Statute of the ICJ still sustains - according to a conception of
international law proper of the twenties - that only the States can be parties in cases before the Court (Article
34(1)), admitted and regretted that this outdated position has insulated the Hague Court from the great
corpus of contemporary international law. R.Y. Jennings, "The International Court of Justice after Fifty Years",
89 American Journal of International Law (1995) p. 504.
15
.
International Court of Justice, Yearbook 1996-1997, vol. 51, The Hague, ICJ, 1997, p. 84, and cf. pp.
84-125.
16
.
G. Weissberg, "The Role of the International Court of Justice in the United Nations System: The First
Quarter Century", The Future of the International Court of Justice (ed. L. Gross), vol. I, Dobbs Ferry N.Y.,
Oceana Publs., 1976, p. 163; and, on the feeling of frustration that this generated, cf. ibid., pp. 186-190. Cf.
also Report on the Connally Amendment - Views of Law School Deans, Law School Professors, International
Law Professors (compiled under the auspices of the Committee for Effective Use of the International Court by
Repealing the Self-Judging Reservation), New York, [1961], pp. 1-154.