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Wednesday, 18 June 1930

Senator DALY (South AustraliaVicePresident of the Executive Council) .-by leave-Imove-

That the Senate approves of the declaration under Article36 of the Statute of the Permanent Court of International Justice, signed at Geneva on 20th September, 1929, in respect of the Commonwealth of Australia.

This motionasks the Senate to approve of the signature by the Commonwealth Government to its Declaration of Acceptance of the OptionalClause of Article 36 of the Statute of the Permanent Court of International Justice. The declaration reads as follows-: -

On behalf of His Majesty's Government in the Commonwealth of Australia and subject to ratification, I accept as compulsory, ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the court in conformity with Article 36, paragraph 2, of the Statute of the Court, for a period of ten years and thereafter until such time as notice may be given to terminate the acceptance, over all disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to the said ratification,

Other than -

Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method of peaceful settlement, and

Disputes with the Government of any other member of the league which is a member of the British Commonwealth of Nations, all of which disputes shall be settled in such manner as the parties have agreed or shall agree, and

Disputes with regard to questions which by international law fall exclusively within the jurisdiction of the Commonwealth of Australia, and subject to. the. condition that His Majesty's Government in. the Commonwealth of Australia reserve the light to require that proceedings in the court shall be suspended in respect of. any dispute which has been submitted to and is under consideration by the Council of the League of Nations, provided that notice to suspend is given after the dispute has been submitted to the council and is given within ten days of the notification of the initiation of the proceedings in the court, and provided also that such suspension shall be limited to a period of twelve months or such longerperiod as may be agreed by the parties to the dispute or determined by a decision of all the members of the council other than the parties to the dispute.

This declaration was signed by the representative of the Commonwealth at Geneva on the 20th September last year, and the Government now proposes to ratify this signature and bring it into binding effect. I will briefly refer to the circumstances leading up to the signature.

Article 36 of thestatute of the Permanent Court first provides that the court will deal with cases which the parties refer to it, and matters specially provided for in treaties or conventions. It then goes on to provide by the optional clause that States, parties to the statute of the Court,may agree that all legal disputes belonging to four specified classes will also be referred to the court. These classes are the same as those which, by Article 13 of the Covenant of the League, States members have agreed to be generally suitable for arbitration or judicial settlement The actual wording of the optional clause is lengthy, but the text of it is as follows: -

The members of the League of Nations and the States mentioned in the annex to the Covenant may, either when signing or ratifyingthe protocol, to which the present statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other member or State accepting the same obligation, the jurisdiction of the court in all or any of the classes of legal disputes concerning

(a)   The interpretation of a treaty;

(b)   Any question of international law;

(c)   The existence of any fact which, if established, would constitute a breach of an. international obligation ;

(d)   The nature or extend of the reparation to be made for the breach of an international obligation.

The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain members or States, or for a certain time.

Intheeventofadispute as to whether thecourthasjurisdiction, the matter shall be settled by the decision of the court.

The Imperial Conference of 1926 discussed whether the members of the British Commonwealth of Nations should accept the optional clause; no decision was arrived at except that none of the British Governmentsshould accept the clause until there hadbeen further consultation between them: In 1928, the Commonwealth Government decidedthat the matter should be further considered, and the Canadian Government proposed to the other governments of the British Commonwealth that further consideration should be given to the question, and some consultation took place. In August of last year the British Government advised that theyconsidered they could accept the optional clause subject to certain reservations, and expressed the hope that all the British Governments might see their way to accept the clause, during the Tenth Assembly of the League, in a form of declaration which all approved. After long consultation, all the governments of the British Commonwealth except the Irish Free State decided to accept the clause on the same terms. The Irish Free State accepted the clause without any reservation.

The result of the acceptance of the optional clause is that the Commonwealth has undertaken to submit to the court for decision any legal dispute belonging to one of the four classes mentioned which is not excluded by the reservations. This means that should the Commonwealth become involved in such a dispute with another State which has also accepted the optional clause, that State can cite the Commonwealth before the Permanent Court. Of course, the Commonwealth can cite the other State in the same way.

The reservations agreed upon after long consultation between the various British Governments exclude four classes of disputes from the compulsory jurisdiction of the court -

(a)   Disputes between governments of the British Commonwealth of Nations. One British Government cannot cite another before the court.

(b)   Disputes which the parties agree to settle by some other formof peaceful settlement; arbitration, for instance ;

(c)   Disputes in connexion with matters. which by international law fall exclusively within the jurisdiction of the Commonwealth;

(d)   Disputes which the Commonwealth considers should be submitted to the Council of the League under Articles 12 and 15 of the Covenant.

In this case the court's jurisdiction is only suspended, and it can deal with the dispute when a certain period has elapsed since the submission to the Council. This reservation enables disputes partly political, partly legal, to be submitted in the first instance to what would probably be a more satisfactory mode of settlement than a purely judicial procedure. Finally, only disputes which arise after the declaration of acceptance has been ratified can be submitted to the court. A State cannot, therefore, cite the Commonwealth for a dispute concerning past facts or events.

Like all decisions, certain reasons could be urged against acceptance. The Commonwealth has agreed to submit certain cases, where the decision may have most important results, to a court which can give a majority decision from which there is no appeal. Moreover, international law is not a code of well-established, generally accepted rules like national law. The court, in the absence of international conventions, may, by article 38 of its statute, be guided by international custom, principles of law, judicial decisions, and teaching of highly qualified publicists. But whilst a State can make laws for its courts to enforce, there is as yet no machinery for enacting or amending such international rules.

But the reasons for acepting the clause in the opinion of the Commonwealth Government and all the other Governments of the British Commonwealth outweigh these disadvantages. On becoming members of the League of Nations we agreed to submit all disputes to some form of peaceful settlement. By the Treaty for the Renunciation of War we have undertaken to seek the solution of international disputes by peaceful means only. The necessity for providing ample means for the peaceful settlement of disputes is obvious and for disputes in which there is a conflict as to legal rights the decision of a judicial body, such as the Permanent Court, should be most satisfactory. We have accepted the optional clause for ten years and our experience during that period will, I trust, prove that the Permanent Court is fully able to discharge the powers we have decided to entrust to it.

In all, 41 States have now signed the Declaration of Acceptance of the Optional Clause, and 26 have ratified their signature.

Debate (on motion by Senator McLachlan) adjourned.

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