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Does The Optional Clause Still Matter?

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Chapter Summary

A number of new declarations have been made, several existing declarations have been modified, one State (Colombia) has withdrawn its declaration without replacing it, and the Optional Clause has been relied on in cases before the Court on various occasions. To assess these developments and consider their implications, the survey which follows is divided into three parts. The first part considers how the situation now compares with 1993 as regards the number of declarations in force and their geographical distribution. The second part examines how the quality of States' declarations compares with the position 13 years ago, having regard to the use of limitations and reservations. Finally, as the purpose of the Optional Clause is ultimately to provide a possible basis for litigation, the third part reviews recent decisions involving Article 36(2), along with a number of cases currently before the Court.

Keywords: Optional Clause; States' declarations



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