Chapter 5: The legal character of the optional clause system
The question concerning the legal character of the optional clause system deserves attention not only because it embodies a theoretical issue, but also because it is of great practical relevance, considering that the answers to be given to a number of important questions regarding declarations of acceptance – such as the rules governing the modification or withdrawal of declarations, the legal effects of reservations and the limitations attached to declarations, interpretation of declarations, etc. – depend on how one looks at the legal character of the optional clause system. Considering the literature on international law, there are two basic ideas to be distinguished when discussing the legal character of the optional clause system. Both points of view start from the position that states recognize the Court’s compulsory jurisdiction by unilateral declarations. However, a difference between the two approaches is revealed upon an appreciation of the system resulting from these declarations. One view emphasizes the unilateral nature of the optional clause system, while the other conceives the relations as being like those between states accepting the compulsory jurisdiction of the Court in a treaty-like relationship. As an extra third category of opinions, one could even highlight those authors who argue that the relation between states established by their declarations is a sui generis international engagement having bilateral and multilateral elements.
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