5
11.
One may, thus, seriously question whether the optional clause keeps on serving
the same purpose which inspired it at the epoch of the PCIJ 17. The rate of its
acceptance in the era of the ICJ is proportionally inferior to that of the epoch of its
predecessor, the PCIJ. Furthermore, throughout the years, the possibility opened by
the optional clause of acceptance of the jurisdiction of the international tribunal
became, in fact, object of excesses on the part of some States, which only accepted the
compulsory jurisdiction of the ICJ in their own terms, with all kinds of limitations18.
Thus, it is not at all surprising that, already by the mid-fifties, one began to speak
openly of a decline of the optional clause 19.
12.
Those excesses occurred precisely because, in elaborating the Statute of the
new ICJ, one failed to follow the evolution of the international community. One
abandoned the very basis of the compulsory jurisdiction of the ICJ to a voluntarist
conception of international law, which prevailed at the beginning of the last century, but
subsequently disauthorized by its harmful consequences to the conduction of
international relations, - such as vehemently warned by the more authoritative
contemporary international juridical doctrine. There can be no doubt whatsoever that
the distorted and incongruous practice, developed under Article 36(2) of the Statute of
the ICJ, definitively does not serve as an example or model to be followed by the States
Parties to treaties of protection of the rights of the human being such as the American
Convention on Human Rights, in relation to the extent of the jurisdictional basis of the
work of the Inter-American Court of Human Rights.
III.
The International Compulsory Jurisdiction: Reflections Lex Lata.
13.
Contemporary international law has gradually evolved, putting limits to the
manifestations of a State voluntarism which revealed itself as belonging to another
era 20. The methodology of interpretation of human rights treaties 21, developed as from
17
.
Cf. statistic data in G. Weissberg, op. cit. supra n. (16), pp. 160-161; however, one ought to recall
the clauses compromissoires pertaining to the contentious jurisdiction of the ICJ, which, in the mid-seventies,
appeared in about 180 treaties and conventions (more than two thirds of which of a bilateral character, and
concerning more than 50 States - ibid., p. 164).
18
.
Some of them gave the impression that they thus accepted that aforementioned optional clause in
order to sue other States before the ICJ, trying, however, to avoid themselves to be sued by other States; J.
Soubeyrol, "Validité dans le temps de la déclaration d'acceptation de la juridiction obligatoire", 5 Annuaire
français de Droit international (1959) pp. 232-257, esp. p. 233.
19
.
C.H.M. Waldock, "Decline of the Optional Clause", 32 British Year Book of International Law (19551956) pp. 244-287. And, on the origins of this decline, cf. the Dissenting Opinion of Judge Guerrero in the
Norwegian Loans case (Judgment of 06.07.1957), ICJ Reports (1957) pp. 69-70.
20
.
When this outlook still prevailed to some extent, in a classic book published in 1934, Georges Scelle,
questioning it, pointed out that the self-attribution of discrecionary competence to the rulers, and the exercise
of functions according to the criteria of the power-holders themselves, were characteristics of a not much
evolved, imperfect, and still almost anarchical international society; G. Scelle, Précis de droit des gens Principes et systématique, part II, Paris, Rec. Sirey, 1934 (reed. 1984), pp. 547-548. And cf., earlier on, to
the same effect, L. Duguit, L'État, le Droit objectif et la loi positive, vol. I, Paris, A. Fontemoing Ed., 1901, pp.
122-131 and 614.
21
.
As can be inferred from the vast international case-law in this respect, analysed in detail in: A.A.
Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI,
Santiago/México/Buenos Aires/Barcelona, Editorial Jurídica de Chile, 2001, pp. 15-58.