Volume #14 - 278.|
INTERNATIONAL COURT OF JUSTICE
Memorandum from Secretary of State for External Affairs|
March 22nd, 1948|
COMPULSORY JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
Article 36 of the Statute of the Court provides for the acceptance by States, on a voluntary basis, of the compulsory jurisdiction of the Court and that declarations made under the old Statute of the Permanent Court, which were still valid, apply to the new Court. In 1929, Canada made a declaration with five reservations. These reservations exclude disputes arising before the declaration was ratified, those which may be settled by another mode of peaceful settlement, Commonwealth disputes, disputes within the domestic jurisdiction of Canada and disputes before the Council of the League. A further reservation was added in 1939 excluding disputes arising out of World War II.
2. While there is no necessity so to do, there may be reasons of policy why Canada should make a new declaration accepting without reservation, for a period of five years and thereafter until notice of termination, the compulsory jurisdiction of the Court.
3. Such a new declaration would strengthen the authority of the United Nations and would be in line with Canada's support of means of peaceful settlement of international disputes. The possible disadvantages of the elimination of all reservations are that Canada might be forced to bring before the Court a dispute which arose prior to July 28, 1930 or out of World War II or which lies within Canada's domestic jurisdiction. The disadvantages seem more apparent than real: there are no known disputes involving Canada during those periods, and paragraph 7 of Article 2 of the Charter seems to preclude the United Nations from intervening in matters which are essentially within the domestic jurisdiction of any state.
4. Consultation with the Governments of Australia, New Zealand, South Africa. and the United Kingdom in 1946 and 1947 shows that they do not see that any positive advantage would be gained by making a fresh declaration.
5. Of 27 acceptances of the Compulsory Jurisdiction of the Court (16 being new acceptances) 5 only among the latter category (those of China, Denmark, Norway. the Philippines and Sweden) are without reservations.
6. Attached is a memorandum explaining this matter in detail.†
7. The undersigned recommends that Cabinet express its view as to the desirabil ity of Canada making a new declaration accepting without reservation, for five years and thereafter after notice of termination, the compulsory jurisdiction of the Court.
8. Should Cabinet think it undesirable to make such a declaration, Canada can rely on the declaration of 1929, with its reservations, and on its further reservation of 1939.
9. Should Cabinet think it desirable to make a new declaration, the following steps would be taken:
(a) All members of the Commonwealth (including India and Pakistan and Ireland) would be informed of Cabinet's decision;
(b) A resolution would be introduced (as was the case in 1929) in both Houses of Parliament seeking approval of a new declaration without reservation;
(c) Upon approval by the Houses of Parliament, the new declaration would be deposited with the Secretary-General of the United Nations.