The paper analyses the role and importance of the principle of reciprocity in the optional clause system of the International Court of Justice. After a short description of the Statute provisions on reciprocity of the two International Courts the author deals with the stipulation of reciprocity in declarations accepting the compulsory jurisdiction of the Court. The main part of the paper is devoted to the legal practice of the two International Courts on the matters of reciprocity. As a conclusion the author says that, by virtue of the principle of reciprocity, reservations to the acceptances of compulsory jurisdiction tend, in practice, to make their effect felt more often than not, precisely against the State or States making a reservation.
The article offers an overview on the forms and contents of the declarations accepting the compulsory jurisdiction of the ICJ made under Article 36. para. 2. of the Statute. The author examines first the provisions of the Statutes of the two world courts, than the forms of declarations and the practice of the two International Courts on the validity and the entry into force of the declarations accepting the compulsory jurisdiction. Since the states are free to choose what form they please one can find a great variety of the forms and wording of the declarations. According to the Statute the only formality required is that a declaration should be deposited to the UN Secretary General and the intention of the state clearly results from a declaration. The ICJ dealt in several cases with the problem of the entry into force of the declarations and according to the well-established practice of the Court the data of the entry into force of these instruments corresponds to their deposit to the Secretary General.
The essay concerns the reservations attached to the declarations accepting the compulsory jurisdiction of the two International Courts. As early as during the 1920s when States consented to the compulsory jurisdicition of the first World Court they attached limitations on, conditions or reservations to their declarations of acceptance. For these declarations, there were no rules whatever prescribing any sort of uniformity or similarity of content in any aspects, and States formulated more and more complicated restrictions to their declarations of acceptance. After the International Court of Justice had been established, States continued the practice of attaching reservations to declarations of acceptance and, moreover, increased the number thereof, “inventing” more and more complicated reservations. Quite a few of such reservations placed much more limitations on the Court's compulsory jurisdiction than the interwar declarations of acceptance had done and a no small part of them left loopholes of escape from the jurisdiction recognized. In analysing the problems of permissible reservations, the author refers to the rules and criterias developed in international treaty law on the reservations to multilateral treaties and to the jurisprudence of the two Word Courts. She concludes that the declarations of acceptance are unilateral acts and the States are free to attach any reservation to their declarations of acceptance.
In the State practice regarding the declarations of acceptance of the International Court's compulsory jurisdiction one can trace some disputed reservations containing proviso which undermine the obligation assumed regarding the Court's compulsory jurisdiction. One of the limitations is called reservation concerning multilateral treaty, otherwise known as the Vandenberg reservation or multilateral treaty reservation. The article treats these reservations by examining their origin, contents and Court's jurisprudence on the matter. According to the author the multilateral treaty reservations have destructive effect on the compulsory jurisdiction system, chiefly because the broad conception of interpretation of the “affected” States bars proceedings before the Court over disputes as to multilateral treaties concluded by a larger group of States, if not all the States party to the treaty are also parties in the proceedings before the Court. As for the other part of the reservation, that stipulation virtually invalidates the obligations assumed in declarations of acceptances, since it hampers the Court to deal with a dispute submitted to it unless the State making such a reservation in its declaration or, on the basis of reciprocity, the adverse party has agreed to the Court's jurisdiction. The adverse effect of the reservation is all the more so since the multilateral treaty reservations expressly concern disputes with regard to treaty interpretation, and considerable part of the cases brought before the Court concern precisely such disputes.
Kokott examined the relevant factors to determine if the KZD is a ‘court or tribunal’ for the purposes of the preliminary ruling procedure; the independence, the judicial activity and compulsoryjurisdiction. After a detailed analysis of all these