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I) The optional clause

In connection with signatures of the optional clause under Article 36 of the Statute of the ICJ, the PCIJ in the Panavezys-Saldutiskis Railway Case took the view that such a signature of the corresponding clause under its Statute did not involve an implied waiver of the rule of local remedies by the signatory.⁸⁵ In the same case, Judge van Eysinga disagreed with this view in a dissenting opinion. ⁸⁶ The issue was not raised as such by the applicant State in the Norwegian (p. 166) Loans Case ⁸⁷ or in the Interhandel Case ⁸⁸ where the ICJ was confronted with the question of local remedies, although signatories of the optional clause under Article 36 of the Statute of the Court were involved. In the latter case the ICJ applied the local remedies rule as a preliminary objection. Since the acceptance of the compulsory jurisdiction of the ICJ does not basically militate against the preservation of the jurisdiction of national courts, the view may be taken that the opinion of the PCIJ has validity. ⁸⁹

Ii) Submission by States to international adjudication or arbitration

Submissions to international adjudication or arbitration by agreements between States entered into before the dispute has arisen evidently stand on the same footing as acceptance of the optional clause of Article 36 of the Statute of the ICJ. In the ELSI Case a Chamber of the ICJ held that an agreement in a treaty to submit to adjudication by the ICJ, entered into before the dispute arose, did not by itself imply a waiver of the rule of local remedies. ⁹⁰ The ICJ made it quite clear that implying a waiver in these circumstances was not an easy matter in the absence of a clear intention to do so. On the other hand, the situation is not quite the same in regard to treaties signed after disputes have arisen. In fact, it would seem that the PCIJ and the ICJ have not had to address this situation. However, in so far as the two Courts have enunciated an undifferentiated general principle which supports the view of the majority taken in other decisions, there is added support for that view. This majority view is that, whether such treaties are signed before or after disputes arise, no implied waiver of the rule of local remedies may be generally assumed to exist. The presumption, rebuttable though it is, is that there is no waiver. ⁹¹ The ILC in the commentary to its Draft Article 16(d), however, suggests that there is initially an implied waiver where the treaty to arbitrate or adjudicate comes into force after the dispute arises. ⁹² This has been the minority view.