| |
[p16]
The Court,
composed as above,
delivers the following judgment:
[1] By an Application, transmitted to and filed in the Registry of the Court
on May 22nd, 1947, under Article 40, paragraph 1, of the Statute, and
Article 32, paragraph 2, of the Rules of Court, the Government of the United
Kingdom of Great Britain and Northern Ireland instituted proceedings before
the Court against the Government of the People's Republic of Albania. These
proceedings concerned the incident which occurred in the Corfu Channel on
October 22nd, 1946, when two British destroyers struck mines, the explosion
of which caused damage to these vessels and heavy loss of life. [p17]
[2] It is stated in the Application that the subject of the dispute and the
succinct statement of the facts and grounds on which the claim of the United
Kingdom is based are to be found in a note dated December 9th, 1946,
transmitted by the Government of the United Kingdom to the Albanian
Government, a copy of which is attached to the Application. It is alleged in
the Application that the Court has jurisdiction "under Article 36 (1) of its
Statute as being a matter, which is one specially provided for in the
Charter of the United Nations, on the grounds : (a) that the Security
Council of the United Nations, at the conclusion of proceedings in which it
dealt with the dispute under Article 36 of the Charter, by a Resolution,
decided to recommend both the Government of the United Kingdom and the
Albanian Government to refer the present dispute to the International Court
of Justice; (b) that the Albanian Government accepted the invitation of the
Security Council under Article 32 of the Charter to participate in the
discussion of the dispute and accepted the condition laid down by the
Security Council, when conveying the invitation, that Albania accepts in the
present case all the obligations which a Member of the United Nations would
have to assume in a similar case; (c) that Article 25 of the Charter
provides that the Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the present
Charter."
[3] Finally, it is stated in the Application that the purpose of the claim
of the Government of the United Kingdom is to secure a decision of the Court
that the Albanian Government is internationally responsible for the loss and
injury resulting from the fact that two destroyers of the Royal Navy struck
mines in Albanian territorial waters in the Corfu Channel, and to have the
reparation or compensation due therefor from the Albanian Government
determined by the Court.
[4] By a telegram of January 24th, 1947, the Albanian Government accepted
the decision of the Security Council inviting it, in accordance with Article
32 of the Charter, to participate, without a vote, in the proceedings with
regard to the dispute, on condition that Albania should accept, in the
present case, all the obligations which a Member of the United Nations would
have to assume in a similar case.
[5] The Resolution of the Security Council of April 9th, 1947, to which the
Application refers, is as follows:
"The Security Council having considered statements of representatives of the
United Kingdom and Albania concerning a dispute between the United Kingdom
and Albania arising out of an incident on 22nd October, 1946, in the Strait
of Corfu in which two British ships were damaged by mines with resulting
loss of life and injury to their crews recommends that the United Kingdom
and Albanian Governments should immediately refer the dispute to the
International Court of Justice in accordance with the provisions of the
Statute of the Court." [p18]
[6] Notice of the Application of the Government of the United Kingdom was
given on May 22nd, 1947, by the Registrar of the Court, to the Albanian
Government by telegram and by letter. On the same day, the Application was
transmitted by the Registrar to the Secretary-General of the United Nations
for communication in accordance with Article 40, paragraph 3, of the
Statute.
[7] On June 23rd, 1947, the Registrar received from the Albanian Government,
following upon a reminder addressed to the latter, a telegram acknowledging
receipt of the letter and telegram of May 22nd, and announcing the despatch
of a reply to these communications.
[8] On July 23rd, 1947, the Deputy-Registrar received from the hands of M.
Kahreman Ylli, Albanian Minister in Paris, a letter from the Deputy-Minister
of Foreign Affairs of Albania, dated at Tirana, July 2nd, 1947, which
confirmed the receipt of the Application, and, after referring to the
contents of that document, requested the Registrar
"to be good enough to bring the following statement to the knowledge of the
Court:
The Government of the People's Republic of Albania finds itself obliged to
observe:
1.That the Government of the United Kingdom, in instituting proceedings
before the Court, has not complied with the recommendation adopted by the
Security Council on 9th April, 1947,whereby that body recommended 'that the
United Kingdom and Albanian Governments should immediately refer the dispute
to the International Court of Justice in accordance with the provisions of
the Statute of the Court'.
The Albanian Government considers that, according both to the Court's
Statute and to general international law, in the absence of an acceptance by
Albania of Article 36 of the Court's Statute or of any other instrument of
international law whereby the Albanian Government might have accepted the
compulsory jurisdiction of the Court, the Government of the United Kingdom
was not entitled to refer this dispute to the Court by unilateral
application.
2.It would appear that the Government of the United Kingdom endeavours to
justify this proceeding by invoking Article 25 of the Charter of the United
Nations.
There can, however, be no doubt that Article 25 of the Charter relates
solely to decisions of the Security Council taken on the basis of the
provisions of Chapter VII of the Charter and does not apply to
recommendations made by the Council with reference to the pacific settlement
of disputes, since such recommendations are not binding and consequently
cannot afford an indirect basis for the compulsory jurisdiction of the
Court, a jurisdiction which can only ensue from explicit declarations made
by States Parties to the Statute of the Court, in accordance with Article
36, 3, of the Statute.
3. The Albanian Government considers that, according to the terms of the
Security Council's recommendation of 9th April, 1947,the Government of the
United Kingdom, before bringing the case [p19] before the International
Court of Justice, should have reached an understanding with the Albanian
Government regarding the conditions under which the two Parties, proceeding
in conformity with the Council's recommendation, should submit their dispute
to the Court.
The Albanian Government is therefore justified in its conclusion that the
Government of the United Kingdom has not proceeded in conformity with the
Council's recommendation, with the Statute of the Court or with the
recognized principles of international law.
In these circumstances, the Albanian Government would be within its rights
in holding that the Government of the United Kingdom was not entitled to
bring the case before the Court by unilateral application, without first
concluding a special agreement with the Albanian Government.
4. The Albanian Government, for its part, fully accepts the recommendation
of the Security Council.
Profoundly convinced of the justice of its case, resolved to neglect no
opportunity of giving evidence of its devotion to the principles of friendly
collaboration between nations and of the pacific settlement of disputes, it
is prepared, notwithstanding this irregularity in the action taken by the
Government of the United Kingdom, to appear before the Court.
Nevertheless, the Albanian Government makes the most explicit reservations
respecting the manner in which the Government of the United Kingdom has
brought the case before the Court in application of the Council's
recommendations and more especially respecting the interpretation which that
Government has sought to place on Article 25 of the Charter with reference
to the binding character of the Security Council's recommendations. The
Albanian Government wishes to emphasize that its acceptance of the Court's
jurisdiction for this case cannot constitute a precedent for the future.
Accordingly, the Government of the People's Republic of Albania has the
honour to inform you that it appoints as its Agent, in accordance with
Article 35, paragraph 3, of the Rules of Court, M. Kahreman Ylli, Minister
Plenipotentiary of Albania in Paris, whose address for service at the seat
of the Court is the Legation of the Federal People's Republic of Yugoslavia
at The Hague."
[9] A copy of this letter, which had been handed to the Registry by the
Agent for the Albanian Government, was transmitted, on July 24th, to the
Agent for the Government of the United Kingdom.
[10] On July 31st, 1947, the President of the Court, as the Court was not
sitting, made an Order, in which, after ascertaining the views of the
Parties with regard to questions of procedure, it was stated:
"Whereas on July 23rd, 1947, a note signed by the Deputy-Minister for
Foreign Affairs was filed with the Registry on behalf of the Government of
the People's Republic of Albania, in response to the Application of the
Government of the United Kingdom;
Whereas, in this note, the Albanian Government declares inter alia that the
Government of the United Kingdom, in bringing the case before the Court by
unilateral application, has not [p20] proceeded in conformity with the
recommendation of the Security Council of April 9th, 1947, or with the
Statute of the Court or the recognized principles of international law, and
that, accordingly, the Albanian Government would be within its rights in
holding that the Government of the United Kingdom was not entitled to bring
the case before the Court without first concluding a special agreement with
the Albanian Government, but whereas the Albanian Government, fully
accepting for its part the recommendation of the Security Council, is
prepared, notwithstanding this irregularity and in evidence of its devotion
to the principles of friendly collaboration between nations and of the
pacific settlement of disputes, to appear before the Court;
Whereas the note above mentioned gives notice of the appointment as Agent
for the Albanian Government of M. Kahreman Ylli, Minister Plenipotentiary of
Albania in Paris, and of his address for service at The Hague;
Whereas, having regard to the Resolution of the Security Council of April
9th, 1947, the said note of the Albanian Government may be regarded as
constituting the document mentioned in Article 36 of the Rules of Court;"
[11] In the Order, the time-limits were fixed as follows: the 1st October,
1947, for the presentation of the Memorial of the United Kingdom, and the
10th December, 1947, for the presentation of the Counter-Memorial of
Albania.
[12] The Memorial of the United Kingdom, presented within the time-limit
fixed by the Order, contains statements and submissions with regard to the
incidents which occurred on October 22nd, 1946, in the Corfu Channel. These
statements and submissions develop the points indicated in the Application
as constituting the claim of the United Kingdom.
[13] Within the time-limit fixed for the presentation of the
Counter-Memorial, the Agent for the Albanian Government, by a document dated
December 1st and filed in the Registry on December 9th, submitted a
Preliminary Objection to the Application on the ground of inadmissibility,
based upon the following statements:
"I. The facts:
(1) The Security Council, in a Resolution adopted on April 9th last,
recommended that the United Kingdom and Albanian Governments should
immediately refer the dispute between them arising out of an incident on
October 22nd, 1946, in the Strait of Corfu, to the International Court of
Justice, in accordance with the provisions of the Statute of the Court;
(2) contrary to this recommendation, the United Kingdom Government, alone
and without any agreement with the Albanian Government, approached the Court
on May 13th last. By proceeding thus unilaterally, the Government of the
United Kingdom brought an Application before the Court;
(3) on July 2nd last, the Albanian Government made to the Court most
explicit reservations respecting the manner in which [p21] the Government of
the United Kingdom had brought the case before the Court, but, subject to
these reservations, stated that it was prepared to appear before the Court;
(4) on the other hand, the Albanian Government, in its letter of July 2nd
last addressed to the Court, fully accepted the Security Council's
recommendation of April 9th last, as far as it was concerned, and observed
that, to bring their case before the Court, the two Governments should have
reached an understanding in conformity with the Security Council's
recommendation and in accordance with the provisions of the Court's Statute.
II. The Law:
(1) According to Article 36, paragraph 1, of the Court's Statute, its
jurisdiction 'comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in
treaties and conventions in force'. According to Article 40, paragraph 1, of
the Statute, 'cases are brought before the Court, as the case may be, either
by the notification of the special agreement or by a written
application....'.
(2) The Albanian Government not being bound by any treaty or convention in
force to submit its dispute with the United Kingdom Government to the Court,
it follows that, in accordance with the provisions of the Statute of the
Court, only both parties to this dispute can validly do so.
If this is so, the case must be brought before the Court by the notification
of the special agreement, and not by an application.
(3) In its Application of May 13th last, the United Kingdom Government
invokes no treaty or convention nor does it claim that the parties are
submitting their dispute to the Court in accordance with the provisions of
the Statute.
The United Kingdom Government maintains that this is a 'matter, which is one
specially provided for in the Charter of the United Nations, on the grounds:
(a) that the Security Council of the United Nations, at the conclusion of
proceedings in which it dealt with the dispute under Article 36 of the
Charter, by a Resolution, of which a copy forms Annex 2 to this Application,
decided to recommend both the Government of the United Kingdom and the
Albanian Government to refer the present dispute to the International Court
of Justice ; (b) that the Albanian Government accepted the invitation of the
Security Council under Article 32 of the Charter to participate in the
discussion of the dispute and accepted the condition laid down by the
Security Council, when conveying the invitation, that Albania accepts in the
present case all the obligations which a Member of the United Nations would
have to assume in a similar case. (A copy of the invitation of the Security
Council and of the Albanian Government's reply thereto form Annex 3 to the
present Application) ; (c) that Article 25 of the Charter provides that the
Members of the United Nations agree to accept and carry out the decisions of
the Security Council in accordance with the present Charter.' (See letter
from the Agent of the Government of the United Kingdom of Great Britain and
Northern Ireland, dated May 13th, 1947.) [p22]
As regards these reasons given by the United Kingdom Government, the
Albanian Government has the honour to make the following observations:
Ad (a) The Security Council, in its Resolution of April 9th last, only
recommended 'the United Kingdom and Albanian Governments' to refer their
dispute to the International Court of Justice in accordance with the
provisions of the Statute of the Court.
Such a recommendation certainly cannot ipso facto constitute a matter
specially provided for in the Charter of the United Nations to which the
Court's jurisdiction extends. Nothing in the Charter of the United Nations
provides for such a case;
ad (b) In complying with the invitation given by the Secretary-General ad
interim of the United Nations on January 20th last, the Albanian Government
only accepted 'in the present case all the obligations which a Member of the
United Nations would have to assume in a similar case', within the meaning
of Article 32 of the Charter.
As it was a recommendation, the obligations cannot ipso facto constitute a
matter specially provided for in the Charter of the United Nations with a
view to the Court's compulsory jurisdiction.
As a result of rights and obligations assumed by them in the Charter,
Members of the United Nations are never bound to appear before the Court
without any other procedure, namely, without having duly and expressly
accepted the Court's jurisdiction in conformity with the provisions of its
Statute;
ad (c) The Security Council's Resolution of April 9th last contains a
recommendation which, in conformity with the Charter of the United Nations,
has no binding force for the Governments of Albania and the United Kingdom
without their consent and acceptance. Moreover, according to the very terms
of the Resolution, the two Governments must proceed in conformity with the
provisions of the Statute of the Court in order that they may submit their
dispute to it.
The said Resolution of the Security Council cannot, in conformity with the
Charter of the United Nations and with the provisions of the Statute of the
Court, be considered to be a decision of the Security Council, such as would
on the one hand oblige both parties, ipso facto and without any other step,
to appear before the International Court of Justice, and such as would, on
the other hand, authorize them to approach the International Court of
Justice without regard to the provisions of the Statute of the Court.
To sum up the foregoing observations, the Albanian Government asserts that
neither the said Resolution of April 9th last, nor the said declaration of
the Albanian Government of 20th January last, nor yet Article 25 of the
Charter, can, whether taken separately or conjointly, be relied on as
imposing the Court's compulsory jurisdiction on the Albanian Government in
the present case.
III. Conclusions: ……………………………………………………[p23]
May it please the Court to proceed in conformity with Article 62 of the
Rules of Court,
to place on record that, in accepting the Security Council's recommendation,
the Albanian Government is only obliged to submit the above-mentioned
dispute to the Court in accordance with the provisions of the Statute of the
Court,
and to give judgment that the Application of May 13th last addressed to the
Court by the Government of the United Kingdom against the Government of the
People's Republic of Albania, is inadmissible, the United Kingdom Government
having submitted the said Application contrary to the provisions of Article
40, paragraph 1, and of Article 36, paragraph 1, of the Statute of the
Court."
[14] The Albanian Preliminary Objection was transmitted, on December 9th, to
the Agent for the United Kingdom and was communicated on December 11th to
the Members of the United Nations, pursuant to the provisions of Article 63
of the Statute.
[15] By an Order, made on December 10th, 1947, the President of the Court,
as the Court was not sitting, fixed January 20th, 1948, as the time-limit
for the presentation by the Government of the United Kingdom of a written
statement of its observations and submissions in regard to the Preliminary
Objection.
[16] This statement, dated January 19th, 1948, and received in the Registry
on the same date, contains, in addition to a number of arguments, the
following statements and submissions:
"9
(a) It [the Government of the United Kingdom] has fully complied with the
recommendation of the Security Council immediately to refer the dispute to
the Court. It did so in its Application of 13th May, 1947, which fully and
clearly indicated the subject of the dispute, and the parties, in accordance
with Article 40 (1) of the Statute of the Court and Article 32 (2) of the
Rules of Court.
(b) The Government of Albania, after delivery of the United Kingdom
Application, stated in its letter of 2nd July, 1947, that it fully accepted
the recommendation of the Security Council, and that it was prepared to
appear before the Court and to accept its jurisdiction in this case.
(c) This Albanian letter, coupled with the Resolution of the Security
Council of 9th April, 1947, was accepted by the President of the Court as a
document which satisfied the conditions laid down by the Security Council
for the appearance before the Court of a State not party to the Statute.
(See Resolution of the Security Council of 15th October, 1946, under which a
State not party to the Statute may make a 'particular declaration' accepting
the jurisdiction of the Court in respect of a particular dispute only.)
(d) In these circumstances the jurisdiction of the Court to make the Order
of 31st July, 1947, and to proceed with the trial of this dispute is fully
established. Under Article 36 (1) of the Statute, the jurisdiction of the
Court comprises all cases [p24] which the parties refer to it, and there is
no dispute which States entitled to appear before the Court cannot refer to
it.... The parties have clearly referred the present dispute by the
above-mentioned documents (namely, the United Kingdom Application of 13th
May, 1947, and the Albanian letter of 2nd July, 1947), which, whether or not
they constitute a 'special agreement', at least constitute a 'reference'. A
special agreement is not necessary....
(e) Article 40 of the Statute merely defines the formal basis for action by
the Court in a case where jurisdiction is established by Article 36 (1).
There is nothing in the Statute or the Rules of Court which prevents the
proceedings being formally instituted by application, even though the
jurisdiction of the Court is established by a 'reference' by the parties or
by a 'special agreement'. Accordingly the Government of the United Kingdom,
in bringing this matter before the Court by application, has, it is
submitted, proceeded correctly....
(f) Further, there has been, in fact, an agreement between the parties
constituted by the acceptance of the jurisdiction on the part of the
Government of the United Kingdom in compliance with the Resolution of the
Security Council of 9th April, 1947 (as evidenced by its Application of 13th
May, 1947), followed by an acceptance of the jurisdiction on the part of the
Government of Albania in its letter of 2nd July, 1947, to refer (without
prejudice to the Albanian Government's view as to the interpretation of
Article 25 of the Charter) to the Court the issues defined in the
Application. This agreement possesses all the essentials of a 'special
agreement' and conforms fully with Article 40 of the Statute....
(g) Even if (which is not admitted) there was any formal irregularity in the
mode of the commencement of the present proceedings, this irregularity has
been cured, because the Albanian Government by its letter of 2nd July, 1947,
has waived any possible objection and has consented to the jurisdiction of
the Court. An irregularity in the manner in which a case is introduced may
be cured by subsequent events....
(h)Having once consented to the jurisdiction, the Albanian Government cannot
afterwards withdraw its consent....
(i) The President's Order of 31st July, 1947, clearly proceeded upon
the basis that the Albanian Government had definitely accepted the
jurisdiction, as was, in fact, the case. It is not competent for the
Albanian Government to reopen the question of jurisdiction.
12. In view of the circumstances above referred to, which constitute, in the
submission of the Government of the United Kingdom, a clear acceptance by
Albania of the jurisdiction of the Court, the Government of the United
Kingdom has not, in these Observations, set forth arguments on the
applicability of Article 25 of the Charter. However, the Government of the
United Kingdom must reserve the right, if necessary, to invoke the
jurisdiction of the Court on the grounds set forth in its original
Application." [p25]
[17] In conclusion, the Government of the United Kingdom
"submits to the Court:—
(a) that the preliminary objection submitted by the Government of Albania
should be dismissed,
(b) that the Government of Albania should be directed to comply with the
terms of the President's Order of 31st July, 1947, and to deliver a
Counter-Memorial on the merits of the dispute without further delay."
[18] As the Court did not have upon the Bench a judge of Albanian
nationality, the Albanian Government availed itself of the right provided by
Article 31, paragraph 2, of the Statute, and designated Dr. Igor Daxner,
President of a Chamber of the Supreme Court of Czechoslovakia, as judge ad
hoc.
[19] In the course of public sittings, held on February 26th, 27th and 28th,
and on March 1st, 2nd and 5th, 1948, the Court heard oral arguments on
behalf of the respective parties : M. Kahreman Ylli, Agent, and Professor
Vochoč, Counsel, for Albania; and Mr. W. E. Beckett, Agent, and Sir Hartley
Shawcross, Counsel, for the United Kingdom. On being questioned by the
President before the close of the hearing, the Agent for the Albanian
Government declared that the submissions presented in the Albanian
Preliminary Objection of December 9th, 1947, were final submissions ; a
similar declaration was made on behalf of the Agent for the Government of
the United Kingdom with regard to the submissions in the Observations of the
United Kingdom of January 19th, 1948.
[20] Documents in support were filed as annexes to the Application and
Memorial of the United Kingdom Government, to the Preliminary Objection of
the Albanian Government and to the Observations of the United Kingdom
Government in regard to this Preliminary Objection, as well as in view of
the oral proceedings FN1
---------------------------------------------------------------------------------------------------------------------
FN1
See list in Annex
---------------------------------------------------------------------------------------------------------------------
[21] The above being the state of the proceedings, the Court must now
adjudicate upon the Preliminary Objection raised on behalf of the Government
of the People's Republic of Albania.
***
[22] In the written submissions, which it confirmed orally at the hearing on
March 5th, 1948, the Albanian Government requests the Court
"to place on record that the Albanian Government, in accepting the Security
Council's recommendation, is only obliged to submit the above-mentioned
dispute to the Court in accordance with the provisions of the Statute of the
Court",
and
"to give judgment that the Application of May 13th last, addressed to the
Court by the Government of the United Kingdom against the [p26] Government
of the People's Republic of Albania, is inadmissible, the Government of the
United Kingdom having submitted the said Application contrary to the
provisions of Article 40, paragraph 1, and Article 36, paragraph 1, of the
Statute of the Court".
[23] The first submission relates to the Resolution of April 9th, 1947, in
which the Security Council recommended "that the United Kingdom and Albanian
Governments should immediately refer this dispute to the International Court
of Justice in accordance with the provisions of the Statute of the Court".
The Albanian Government accepted this recommendation and on the basis of its
acceptance recognizes its obligation to refer the dispute to the Court in
accordance with the provisions of the Statute. It is true that this
obligation could only be fulfilled in accordance with the provisions of the
Statute. In recognizing this fact in accordance with the request of the
Albanian Government, the Court points out that that Government subsequently
contracted other engagements, the date and exact scope of which will be
established later.
[24] The second submission of the Albanian Government, which is disputed by
the Government of the United Kingdom, appears to constitute an objection on
the ground of the inadmissibility of the Application. The intention of the
Albanian Government, however, seems to be somewhat lacking in precision in
this respect. When it refers, in its submissions, to Article 40, paragraph
1, of the Statute of the Court, the Albanian Government appears merely to
have in mind a procedural irregularity resulting from the fact that the main
proceedings were instituted by means of an application instead of by a
special agreement concluded beforehand. The Albanian Government, however,
also refers to Article 36, paragraph 1, of the Statute, a provision which
relates exclusively to the jurisdiction of the Court ; and the criticisms
which are directed against the Application of the United Kingdom in the text
of the Preliminary Objection, relate to an alleged lack of compulsory
jurisdiction as well as to the formal admissibility of the Application.
[25] This argument may be explained by the connexion which the United
Kingdom Government, for its part, had made between the institution of
proceedings by application and the existence, alleged by it in this case, of
compulsory jurisdiction.
[26] In support of its Application, the Government of the United Kingdom
invoked certain provisions of the Charter of the United Nations and of the
Statute of the Court to establish the existence of a case of compulsory
jurisdiction. The Court does not consider that it needs to express an
opinion on this point, since, as will be pointed out, the letter of July
2nd, 1947, addressed by the Albanian Government to the Court, constitutes a
voluntary acceptance of its jurisdiction.
[27] The letter of July 2nd, 1947, in spite of the reservation stated
therein, the exact scope of which will be considered later, removes [p27]
all difficulties concerning the question of the admissibility of the
Application and the question of the jurisdiction of the Court.
[28] With respect to the first point, the Albanian Government, while
declaring on the one hand that it "would be within its rights in holding
that the Government of the United Kingdom was not entitled to bring the case
before the International Court by unilateral application, without first
concluding a special agreement with the Albanian Government", states, on the
other hand, that "it is prepared, notwithstanding this irregularity in the
action taken by the Government of the United Kingdom, to appear before the
Court". This language used by the Albanian Government cannot be understood
otherwise than as a waiver of the right subsequently to raise an objection
directed against the admissibility of the Application founded on the alleged
procedural irregularity of that instrument.
[29] The letter of July 2nd, 1947, is no less decisive as regards the
question of the Court's jurisdiction. Not only does the Albanian Government,
which had already assumed certain obligations towards the Security Council
by its telegram of January 24th, 1947, declare in that letter that it "fully
accepts the recommendation of the Security Council" to the effect that the
dispute should be referred to the Court in accordance with the provisions of
the Court's Statute, but, after stating that it is "profoundly convinced of
the justice of its case", it accepts in precise terms "the jurisdiction of
the Court for this case". The letter of July 2nd, therefore, in the opinion
of the Court, constitutes a voluntary and indisputable acceptance of the
Court's jurisdiction.
[30] While the consent of the parties confers jurisdiction on the Court,
neither the Statute nor the Rules require that this consent should be
expressed in any particular form.
[31] The Albanian contention that the Application cannot be entertained
because it has been filed contrary to the provisions of Article 40,
paragraph 1, and of Article 36, paragraph 1, of the Court's Statute, is
essentially founded on the assumption that the institution of proceedings by
application is only possible where compulsory jurisdiction exists and that,
where it does not, proceedings can only be instituted by special agreement.
[32] This is a mere assertion which is not justified by either of the texts
cited. Article 32, paragraph 2, of the Rules does not require the Applicant,
as an absolute necessity, but only "as far as possible", to specify in the
application the provision on which he founds the jurisdiction of the Court.
It clearly implies, both by its actual terms and by the reasons underlying
it, that the institution of proceedings by application is not exclusively
reserved for the domain of compulsory jurisdiction.
[33] In submitting the case by means of an Application, the Government of
the United Kingdom gave the Albanian Government the [p28] opportunity of
accepting the jurisdiction of the Court. This acceptance was given in the
Albanian Government's letter of July 2nd, 1947.
[34] Besides, separate action of this kind was in keeping with the
respective positions of the parties in proceedings where there is in fact a
claimant, the United Kingdom, and a defendant, Albania.
[35] Furthermore, there is nothing to prevent the acceptance of
jurisdiction, as in the present case, from being effected by two separate
and successive acts, instead of jointly and beforehand by a special
agreement. As the Permanent Court of International Justice has said in its
Judgment No. 12, of April 26th, 1928, page 23:
"The acceptance by a State of the Court's jurisdiction in a particular case
is not, under the Statute, subordinated to the observance of certain forms,
such as, for instance, the previous conclusion of a special agreement."
[36] The Security Council's recommendation has been relied upon to support
opposite conclusions. But, in the first place, though this recommendation
clearly indicates that the bringing of the case before the Court requires
action on the part of the parties, it does not specify that this action must
be taken jointly, and, in the second place, the method of submitting the
case to the Court is regulated by the texts governing the working of the
Court as was pointed out by the Security Council in its recommendation.
[37] The Court cannot therefore hold to be irregular a proceeding which is
not precluded by any provision in these texts.
[38] The scope of the reservation formulated in the letter of July 2nd,
1947, has still to be considered. The reservation is as follows:
"Nevertheless, the Albanian Government makes the most explicit reservations
respecting the manner in which the Government of the United Kingdom has
brought the case before the Court in application of the Security Council's
recommendation and more especially respecting the interpretation which that
Government has sought to place on Article 25 of the Charter with reference
to the binding character of the Security Council's recommendations. The
Albanian Government wishes to emphasize that its acceptance of the Court's
jurisdiction for this case cannot constitute a precedent for the future."
[39] This reservation is the only limit set by the Albanian Government
either to its acceptance of the Court's jurisdiction, or to its abandonment
of any objection to the admissibility of the proceedings. It is for the
Court to decide, with binding force as between the parties, what is the
interpretation of the letter of July 2nd, 1947. It is clear that the
reservation contained in the letter is intended only to maintain a principle
and to prevent the establishment of a precedent as regards the future. The
Albanian Government makes its reservations—both as to the manner in which
the United Kingdom Government has instituted [p29] the proceedings, and as
to the interpretation which that Government claimed to give to Article 25 of
the Charter with a view to establishing the Court's compulsory
jurisdiction—not for the purposes of the present proceedings, but in order
to retain complete freedom of decision in the future. It is clear that no
question of a precedent could arise unless the letter signified in the
present case the acceptance of the Court's jurisdiction on the merits.
[40] The reservation in the letter of July 2nd, 1947, therefore does not
enable Albania to raise a preliminary objection based on an irregularity of
procedure, or to dispute thereafter the Court's jurisdiction on the merits.
[41] For these reasons,
while placing on record the declaration contained in the first submission of
the Albanian Government, but subject to the explicit reservation of the
obligations assumed by that Government in its letter of July 2nd, 1947,
The Court,
by fifteen votes against one,
(1) rejects the Preliminary Objection submitted by the Albanian Government
on December 9th, 1947;
(2) decides that prozv 7ceedings on the merits shall continue and fixes the
time-limits for the filing of subsequent pleadings as follows:
(a) for the Counter-Memorial of the Albanian Government, Tuesday, June 15th,
1948 ;
(b) for the Reply of the United Kingdom Government, Monday, August 2nd,
1948;
(c) for the Rejoinder of the Albanian Government, Monday, September 20th,
1948.
[42] The present judgment has been drafted in French and English, the French
text being authoritative. [p30]
[43] Done at the Peace Palace, The Hague, this twenty-fifth day of March,
one thousand nine hundred and forty-eight, in three copies, one of which
shall be placed in the archives of the Court and the others delivered to the
Governments of the People's Republic of Albania and of the United Kingdom of
Great Britain and Northern Ireland respectively.
(Signed) J.G.Guerrero,
President.
(Signed) Edvard Hambro,
Registrar.
[44] Judges Basdevant, Alvarez, Winiarski, Zoričič, De Visscher, Badawi
Pasha, Krylov, whilst concurring in the judgment of the Court, have availed
themselves of the right conferred on them by Article 57 of the Statute and
appended to the judgment a statement of their separate opinion.
[45] M. Daxner, Judge ad hoc, declaring that he is unable to concur in the
judgment of the Court, has availed himself of the right conferred on him by
Article 57 of the Statute and appended to the judgment a statement of his
separate opinion.
(Initialled) J. G. G.
(Initialled) E. H. [p31]
Separate Opinion By Judges Basdevant, Alvarez, Winiarski, Zoričič, De
Visscher, Badawi Pasha And Krylov.
[Translation.]
[46] Whilst concurring in the judgment of the Court, we feel obliged to
state that we should have wished the Court to have passed upon the merits of
the claim of the Government of the United Kingdom to treat the present case
as one falling within the compulsory jurisdiction of the Court. Since the
Application was based upon this claim and since the claim, if well-founded,
would, in itself, have justified recourse to this method of instituting
proceedings without there having been any need to consider the effect of the
letter of July 2nd, 1947, it appears to us that, logically, the question of
compulsory jurisdiction falls to be dealt with first of all.
[47] This question has been discussed at length both in the pleadings and
during the oral proceedings. It arose because we were faced here with a
procedure which, regarded as a whole, is the outcome of an innovation in the
Charter of the United Nations. Under the regime of the Charter, the rule
holds good that the jurisdiction of the International Court of Justice, as
of the Permanent Court of International Justice before it, depends on the
consent of the States parties to a dispute. But Article 36 of the Charter
has made it possible for the Security Council to recommend the parties to
refer their dispute to the International Court of Justice in accordance with
the provisions of the Court's Statute. The Security Council, for the first
time, availed itself of this power on April 9th, 1947. The contentious
procedure, recourse to which the Security Council thus recommended,
involves, in order that the Court may be seized of the case, certain action
by the parties or, possibly, by one of them. Faced with this new solution,
the Governments concerned had different views as to the effect of the
recommendation and, consequently, as to the method to be adopted in bringing
the case before the Court.
[48] The Government of the United Kingdom held, on various grounds deduced
by it from the provisions of the Charter and Statute, that this was a new
case where the compulsory jurisdiction of the Court existed. Accordingly, it
instituted proceedings by Application and cited in its Application the
provisions of the Charter and Statute on which it founded the Court's
jurisdiction.
[49] The arguments presented on behalf of the United Kingdom to establish
that this was a new case of compulsory jurisdiction— which arguments the
Agent and Counsel for the Albanian Government sought to refute—have not
convinced us. In particular, [p32] having regard (1) to the normal meaning
of the word recommendation, a meaning which this word has retained in
diplomatic language, as is borne out by the practice of the Pan-American
Conferences, of the League of Nations, of the International Labour
Organization, etc., (2) to the general structure of the Charter and of the
Statute which founds the jurisdiction of the Court on the consent of States,
and (3) to the terms used in Article 36, paragraph 3, of the Charter and to
its object which is to remind the Security Council that legal disputes
should normally be decided by judicial methods, it appears impossible to us
to accept an interpretation according to which this article, without
explicitly saying so, has introduced more or less surreptitiously, a new
case of compulsory jurisdiction.
[50] On this point, the view maintained on behalf of the Albanian Government
appears to us well-founded, but when that Government claims to argue
therefrom that in this case the institution of proceedings by application
was irregular, then we are unable, for the reasons given in the judgment, to
accept this argument.
(Signed ) Basdevant.
( “ ) Alvarez,
( “ ) B. Winiarski
( “ ) Dr. Zoričič,
( “ ) CH. De Visscher.
( “ ) A. Badawi.
( “ ) S. Krylov. [P33]
Dissenting Opinion by Dr. Igor Daxner
[51] I am unable to concur in the present judgment on the Preliminary
Objection submitted by the Government of the People's Republic of Albania in
the Corfu Channel case.
[52] Of the many different points in the judgment upon which I differ from
the Court, I shall confine myself to referring to certain of the more
important in the opinion which follows:
[53] I. In support of its Application, the Government of the United Kingdom
invoked certain provisions of the Charter of the United Nations and of the
Statute of the Court to establish in the present case the existence of a
case of compulsory jurisdiction. The Court does not consider that it needs
to express any opinion on this point, since, according to the Court, the
letter of July 2nd, 1947, addressed by the Albanian Government to the Court,
constitutes a voluntary acceptance of its jurisdiction.
[54] In the opinion of the Court, the letter of July 2nd, 1947, in spite of
the reservation made therein, the exact scope of which the Court considers
later, removes all difficulties concerning the question of the admissibility
of the Application and the question of the jurisdiction of the Court.
[55] It was contended by the Government of the United Kingdom that the
recommendation made by the Security Council under Chapter VI of the Charter,
and more particularly under Article 36, paragraph 3, is if so facto
obligatory for the parties to whom it is addressed. The compulsory
jurisdiction of the Court would thus be established in virtue of the
recommendation of 9th April for the United Kingdom and Albania in the
present case. Special stress was laid in this connexion by the
representative of the United Kingdom on Article 25 of the Charter, the
recommendation under Article 36 (3) of the Charter being construed in virtue
of Article 24 (2) of the Charter as decisions of the Security Council of
obligatory character.
[56] In my opinion such a construction of Article 25 of the Charter and, in
general, the obligatory character of a recommendation under Article 36 (3)
of the Charter, is inadmissible.
[57] The term "recommendation" as used by the Charter is by no means a new
one. It appeared especially in the Covenant of the League of Nations. The
voluntary and not obligatory character of a recommendation made by the
Council of the League, even unanimously, was expressly defined in Advisory
Opinion No. 12 of the Permanent Court (pp. 27-28). The recommendations put
forward by the Assembly of the League were called in French [p34] "les vœux"
(see Albanian document, Annex No. 2). All commentators on the work of the
League of Nations agree that there was no obligatory force (see Lauterpacht,
M. Ray).
[58] The term "to recommend" was described by a distinguished Frenchman as
follows: "ce n'est pas proposer, c'est encore moins ordonner, ce n'est pas
indiquer. C'est faire une recommandation dans le sens français du mot, mais
un peu pressante...." (Doyen Larnaude, p. 37 de la publication: La Société
des Nations, Paris, 1920.) The meaning thus attached to the word
"recommendation" does not permit it to be regarded as an obligatory
decision. Moreover, the Covenant distinguished between a "decision" (Article
5 of the Covenant) and a "recommendation" (see, for instance, Article 15),
and the Charter of the United Nations also makes a distinction (see Articles
39, 40, "Security Council shall make recommendations or decide what
measures....", Article 94, paragraph 2, of the Charter).
[59] The Albanian documents (see especially Annexes 1,4, 5, 6, 7) submitted
to the Court some evidence of a general consensus of opinion prevailing as
regards the voluntary character of recommendations made under Chapter VI of
the Charter. More documentary evidence could easily be found. I would recall
only that the official British commentary on the Charter (H.M. Stationery
Office, Cmd. 6666, p. 8) makes no mention of any compulsory character
attaching to Chapter VI of the Charter.
[60] Some authoritative statements were made already during the San
Francisco Conference concerning the voluntary character of recommendations
(see Belgian amendment in this connexion as reproduced in Vol. XII, p. 66,
of the official edition of the San Francisco Conference, and in the same
sense also Vol. XI, p. 84). Some documentary evidence directly concerns the
voluntary character of Article 36 (3) of the Charter (see op. cit., Vol.
XII, pp. 108-109,p. 137).
[61] The travaux préparatoires of the San Francisco Conference establish
also that Article 25 of the Charter must not be applied indifferently as
meaning ipso facto "obligatory decisions". Referring to the Belgian
amendment, it was emphasized at the Conference "that the Charter must be
construed in its entirety" and that "there were special provisions which
would override general provisions" (op. cit., Vol. XI, p. 375). The British
representatives contended that Article 25 would have no sense and efficiency
if the recommendations made under Chapter VI of the Charter were not
obligatory decisions. They overlooked that Chapter VII of the Charter is of
the greatest importance in view of the functions of the Security Council,
and that the specific powers granted the Security Council as laid down in
Chapter VII include the power to take [p35] decisions which are obligatory
and must be carried out by members.
[62] The character of recommendations made by the Security Council under
Chapter VI of the Charter being purely voluntary, it is evident also that
the recommendation, addressed under Article 36 {3) of the Charter by the
Security Council to the Governments of the United Kingdom and Albania on 9th
April, 1947, could not involve any obligation for both Governments to go
before the Court and that no question whatsoever of the compulsory
jurisdiction of the Court can be raised in the present case in virtue of
Article 36 (3) or any other article of the Charter.
[63] II. The foregoing point must be considered as of special importance in
view of the question of the admissibility of the British Application of 13th
May.
[64] According to Article 40 (1) of the Statute, “ cases are brought before
the Court, as the case may be, either by the notification of the special
agreement, or by written application". There was no question whatsoever of a
special agreement between the Governments of Albania and of the United
Kingdom, not even if the term special agreement should be construed as a
concluding fact or in some other non-formal way. The United Kingdom
Government was therefore by no means in a position to notify the Court of an
agreement reached with Albania to bring the case before the Court. Was then
the United Kingdom Government justified in bringing the case before the
Court by means of a "written application"? Article 40 of the Statute does
not itself say expressly which is the case for application. But it should
not be difficult to understand that this is the procedure where there is
compulsory jurisdiction. There cannot be any doubt that "the notification of
the special agreement" which Article 40 (1) of the Statute has in view,
covers the cases of voluntary, optional jurisdiction. In the terms of
Article 36 (1) of the Statute, there are "all cases which the parties refer
to the Court". The compulsory jurisdiction of the Court is another part of
its jurisdiction. In the words of Article 36 (1) of the Statute, under this
jurisdiction fall ".... all matters specially provided for in the Charter of
the United Nations or in treaties and conventions in force". The
notification of the special agreement covering, according to Article 40 of
the Statute, the cases of optional jurisdiction, the application, requéte,
appears necessarily to be the formal instrument to bring before the Court
the matters of compulsory jurisdiction.
[65] In my opinion, there was never any serious doubt on this point. The
travaux préparatoires in connexion with Article 40 of the Statute point out
that the words "as the case may be" (selon le [p36] cas) were intended to
cover the following two cases: 1) "la Cour est saisie unilatéralement par
une des parties ; 2) il y a un accord spécial entre les parties" (cf. p.
368, Procès-verbaux des Séances de la Troisième Commission, Première
Assemblée, S. d. N.). The documents submitted on behalf of the Albanian
Government to the Court include under Annex 12 the opinions of some judges
of the Permanent Court and of the Registrar which, in 1926, confirm that
"the Court on the basis of Article 40 of the Statute, had always called
requête the document instituting proceedings filed by a party which claimed
that the Court had compulsory jurisdiction in regard to the subject of a
dispute ; the corresponding word in English had been 'application' ".
(Permanent Court, Series D., Add. 2, pp. 177 et sqq.) It was always so held
by the Permanent Court, as e.g. the Revision of the Rules 1934-1936 passim
confirms.
[66] In spite of the documentary evidence in this sense, all this is,
according to the judgment, only "a mere assertion which is not justified"
either by Article 40 (1) or Article 36 (1) of the Statute. According to the
judgment, Article 32 (2) of the Rules of Court, which contains the phrase
"as far as possible", "clearly implies both by its actual terms and by the
consideration which inspired its framing, that the institution of
proceedings by application is not exclusively reserved for the domain of
compulsory jurisdiction". In my opinion, Article 32 (2) of the Rules cannot
be considered as supporting such a view. The ratio legis of this provision
as concerns the words "as far as possible", was to make possible the
institution of the forum prorogatum ; this was the reason why it was thought
not desirable to insist on the application containing reference to the
treaty clause upon which it was based. (See among the Albanian documents
submitted to the Court Annex 14, especially pp. 69, 157, of the Publications
of the Permanent Court. Series D., Third Addendum to No. 2.) The fact that
the application should, as far as possible, specify the provision on which
the applicant founds the jurisdiction of the Court, is not sufficient in
itself to decide the question of the admissibility or inadmissibility of the
application. Article 32 (2) prescribes all formal points which an
application either must or should contain. It does not say that an
application which does not specify the provision presumably founding the
jurisdiction of the Court, is inadmissible ; on the other hand, it does not
follow from Article 32 (2) of the Rules that the application which thus
specifies the presumed jurisdiction of the Court, is ipso facto admissible.
To decide the question, whether a case has been duly brought before the
Court, Article 40 (1) of the Statute must be taken into consideration. Only
if this Article did not specify that "cases are brought before the Court, as
the case may be" (selon le cas), would it be possible to assert that an
application can be presented to the Court even in a case of optional
jurisdiction. [p37]
[67] Since cases of compulsory jurisdiction are brought before the Court,
according to Article 40 of the Statute, by means of an application, the
point is made that the British application of 13th May, 1947, was prima
facie irregular.
[68] III. The only way which was open to the Government of the United
Kingdom was to submit the dispute to the Court in agreement with Albania,
unless the Albanian Government gave its consent to the application a
posteriori. I will mention this point later on, in connexion with the letter
of 2nd July.
[69] It is to be presumed that the Resolution of the Security Council of
April 9th must be in harmony with the above-mentioned requirements of
Article 40 of the Statute, since a recommendation of the Security Council
under Article 36 (3) of the Charter cannot deviate from the terms of the
Statute of the Court.
[70] Now the Resolution of April 9th recommends the Governments of the
United Kingdom and Albania to submit their dispute to the Court "in
accordance with the provisions of the Statute of the Court". It is easily
understood that the recommendation could not propose to the said Governments
any procedure other than the only valid procedure, i.e. "in accordance with
the Statute". The recommendation of April 9th necessarily again confronts
both Governments with Article 40 of the Statute and points to the
"notification of the special agreement" as being the only way in which the
dispute can be brought before the Court, there being no provision of
compulsory jurisdiction upon which either the United Kingdom or Albania
could rely.
[71] As proceedings could not be instituted before the Court by unilateral
application, the acceptance of the recommendation by the Albanian Government
in the letter of July 2nd could not, and did not, by itself in any way
affect the position regarding the admissibility of the British Application
of May 13th.
[72] It should also be evident that the acceptance of the recommendation by
the Albanian Government on July 2nd did not by itself implement the
recommendation. The Governments of Albania and the United Kingdom having
both accepted the recommendation of April 9th, are from now on bound to
submit the dispute to the Court "according to the provisions of the
Statute". A pactum de contrahendo is established between them from now on to
bring the dispute before the Court by appropriate means; but the dispute is
not yet brought before the Court by these reciprocal promises. A dictum of
Lord Phillimore of 1920, which concerns Articles 13 and 14 of the Covenant,
is to be found: ".... a clear distinction should be drawn between the duty
one has to submit a case to the Court and the means by which this submission
should be carried out : Article 13 establishes the obligation of submitting
disputes. Article 14 states—here he [p38] based his argument on the English
text—that the consent of both parties is necessary before the case can be
dealt with." The dictum of Lord Phillimore can be applied exactly to the
present case. The recommendation of April 9th establishes the obligation of
the United Kingdom and Albania to submit their dispute to the Court
"according" to the provisions of the Statute of the Court", i.e. according
to its Article 40, the consent of both parties being necessary before the
case can be dealt with by the Court.
[73] In this connexion, the term "by the parties" which occurs in Article 36
(3) of the Charter, should also be mentioned. It was the Norwegian amendment
which brought these words into Article 36 (3), and the documentary evidence
of the San Francisco Conference shows that it was done "in order to make it
perfectly clear that the Security Council had no right or duty to refer
justiciable disputes to the Court." (Op cit., Vol. XII, p. 137.)
[74] The point was made, on behalf of the Albanian Government, that the term
"the parties" does not imply the right of one party to summon another to
appear before the Court, but "that the consent of both parties is necessary
before a case can be taken before the Court" (see Lord Phillimore in Annex 2
of the Albanian document). The phrase in Article 36 (3) of the Charter
"according to the Statute" on the one hand, and the phrase "by the parties",
on the other hand, are in perfect harmony and mutually complementary.
[75] The consent of the parties to the dispute which is necessary in order
correctly to implement the recommendation and to bring the case before the
Court in conformity with Article 40 of the Statute, may be reached and
expressed in a different way. As the Permanent Court stated in Judgment No.
12 : "The acceptance by a State of the Court's jurisdiction in a particular
case is not, under the Statute, subordinated to the observance of certain
forms, such as, for instance, the previous conclusion of a special
agreement." (P. 23, l. c.) On the other hand, there cannot be any doubt that
the consent of the parties to the dispute must be obtained and expressed
with necessary precision.
[76] IV. It is from this point of view that, in my opinion, the Albanian
letter of July 2nd, 1947, should be read.
[77] First, I must point out that it is necessary to make a clear difference
between two notions :
1. Ability to appear before the Court;
2. Competence of the Court.
[78] Ability to appear before the Court depends on the fulfilment of two
conditions: (a) only States (Article 34 (1) of the Statute) and not other
juridical nor physical persons may appear before [p39] the Court; (b) such
States must be parties to the Statute, i.e., must accept the jurisdiction of
the Court.
[79] According to Article 35 (1) of the Statute, "the Court shall be open"
to these States.
[80] Other States which—because they are not parties to the Statute—have not
accepted the jurisdiction of the Court, are not admitted to appear before
the Court. In order to render it possible for States which are not parties
to the Statute also to be admitted to appear before the Court, Article 35
(2) of the Statute lays down that any such State will acquire the ability to
do so on condition (in conformity with the Resolution of the Security
Council of October 15th, 1946) that it accepts the jurisdiction of the
Court. Such a declaration should be made at the moment of the notification
of its Agent (Article 36 of the Rules).
[81] Accordingly, for every State which is not a party to the Statute, the
acceptance of the jurisdiction of the Court is a preliminary condition to be
able to appear before the Court. Such a State acquires by this declaration
all rights and is subject to all obligations, which, in the case of parties
to the Statute derive from the Statute and Rules because they are parties to
the Statute. As, in conformity with Article 62 of the Rules, parties to the
Statute have the right to present any preliminary objection, this right also
belongs to States not parties to the Statute as soon as they have accepted
the jurisdiction of the Court. Were it not so, then the fundamental
principle of the full equality of the parties would be violated.
[82] In my opinion, the word "jurisdiction" has two fundamental meanings in
international law. This word is used :
(1) to recognize the Court as an organ instituted for the purpose jus dicere
and in order to acquire the ability to appear before it ;
(2) to determine the competence of the Court, i.e., to invest the Court with
the right to solve concrete cases.
[83] In the first meaning, the word jurisdiction has been used in the
Protocol of Signature of December 16th, 1920. By this Protocol, the States,
accepted "the jurisdiction of the Court", but nobody has ever been of the
opinion that this should be construed as acceptance of the compulsory
jurisdiction of the Court for a concrete case. With the same meaning, the
word jurisdiction has been used in the Resolution of the Council of the
League of Nations of May 17th, 1922, as well as in the Resolution of the
Security Council of October 15th, 1946. According to these resolutions, the
acceptance of the jurisdiction of the Court is a preliminary condition to be
able to appear before the Court. By this act (declaration), the competence
of the Court is not of course yet established. The condition for the
establish-[p40] ment of the competence of the Court is a special agreement
(compromis) or the acceptance of the compulsory jurisdiction in treaties or
conventions (Article 36 (1) and 36 (2) of the Statute). Accordingly, a State
not a party to the Statute which recognizes the jurisdiction of the Court by
this fact acquires the juridical position of all other States parties to the
Statute. In particular, such a State has the right to present a preliminary
objection on the ground of "the inadmissibility of the application", because
the recognition of the jurisdiction, in order to acquire ability to appear
before the Court, does not involve ipso facto recognition of the Court's
competence.
[84] It is true that, according to my opinion, it may happen that a State
which makes a declaration in conformity with the Resolution of the Security
Council of October 15th, 1946, is either directly cited by an application
(requête) or itself directly cites another State which recognizes the
jurisdiction of the Court, in spite of the fact that this had not yet been
established. But it is evident that in such a case, the cited party can
successfully present a preliminary objection to the competence of the Court.
On the other hand, such a State cited by means of an application which is
not valid can either expressly confer validity on the application by
accepting the competence or simply argue the merits of the case without
raising any objection. In both cases (the acceptance expressis verbis or
tacit) the competence will be established and the written application will
be made valid.
[85] But this validity does not derive from the recognition of the
jurisdiction (which for a State not a party to the Statute is a preliminary
condition to appear before the Court), but on the contrary, the competence
is established by the fact that a State has expressly made valid the written
application, or has commenced the argument of the case on the merits without
raising any objection.
[86] The letter of July 2nd appears, in the light of these considerations,
as a recognition of the jurisdiction of the Court for the purpose of
enabling Albania to appear before it (se présenter devant la Cour).
[87] As the Albanian Government at the same time have made "the most
explicit reservations respecting the manner in which the Government of the
United Kingdom has brought the case before the Court", it is evident that by
these reservations this Government have retained the right to oppose the
"admissibility" of the written application within the time fixed by Article
62 of the Rules of Court.
[88] The Albanian Government had pointed out that it "would be within its
rights in holding that the Government of the United Kingdom was not entitled
to bring the case before the Court by unilateral application". This sentence
is to be found at the end of the third paragraph of the above-mentioned
letter. The first [p41] three paragraphs briefly indicate the meaning of the
Resolution of the Security Council of April 9th and the means by which the
dispute should have been brought before the Court in conformity with this
Resolution. In the opinion of the Albanian Government a special agreement
was clearly necessary for this purpose.
[89] As a consequence of the reasons given in the first three paragraphs,
the Albanian Government declares that it "would be within its rights....",
etc. The explanation of these words is very clear and simple : the Albanian
Government would have been able to proceed, as if the written application
had not been made, i.e., this Government would have been able completely to
ignore it and not to appear before the Court. By this sentence the Albanian
Government evidently desired to point out its potential right not to take
into consideration the British application which it considered null and
void. The conditional mood was rightly used in that sentence to express this
attitude on the part of the Albanian Government, because the conditional is
the only grammatical form which expresses a possibility. Such a possibility
really existed on July 2nd for the Albanian Government, but that Government
did not use its right completely to ignore a null and void application.
[90] Let us examine why Albania, in spite of its right to ignore the
application, agreed to appear before the Court. As a small country of
scarcely a million inhabitants, Albania could not, by its refusal, adopt a
position which might have been easily adopted by a great Power, such as
England for instance, in a similar case. Moreover, in the eyes of the world,
Albania has hitherto been considered (wrongly of course) as one of the
countries of the Balkans, so often described as the "powder-keg" of Europe.
Its refusal to appear before the Court would have contributed to confirm
this unfounded reputation as a backward country which refused to recognize
the institutions of the civilized world by an act which might have been
interpreted as involving contempt of Court. In such circumstances,
therefore, Albania chose not to invoke its right, as a great Power might
easily have done without incurring the criticism of the world, and agreed to
appear before the Court.
[91] Therefore it decided to appear before the Court in spite of this
irregularity; but it reserved to itself the right to present the preliminary
objection against the irregularity of the United Kingdom's Application. The
Albanian Government has exercised this right so reserved within the time
fixed by Article 62 of the Rules.
[92] In order to avail itself of its reservations, i.e., in order to be able
to present the preliminary objection to the Court, Albania [p42] had first
to appear before the Court, that is to say it had to accept the jurisdiction
of the Court. As pointed out above, it is evident that a State not a party
to the Statute cannot appear before the Court without having previously made
such a declaration. In the present case, taking into consideration the whole
contents of the letter of July 2nd and especially the explicit reservations
of the Albanian Government, the recognition of the jurisdiction of the Court
is for the purpose of enabling it "to appear before the Court".
[93] The recognition of the jurisdiction of the Court consequently confers
ability to be a party in the present case and thereby enables effect to be
given to the declaration: "is prepared .... to appear before the Court".
[94] As the Albanian Government would have had the right to ignore the
United Kingdom Application, but decided to appear before the Court, in spite
of the irregularity of this Application, and to attack this irregularity
before the Court, it considered it necessary to point out that its
recognition of the jurisdiction of the Court "cannot constitute a precedent
for the future". This in effect means that the Albanian Government reserved
the right not to reply, to ignore completely any identical or similar
written applications, which in future might be directed against her.
[95] I do not find any other meaning in the letter of July 2nd than that
which I have tried to define, being anxious to avoid any interpretation
which would conflict with the facts.
[96] V. Since the judgment places such importance on the interpretation of
the letter and the reservations contained therein, I shall now examine these
reservations in greater detail.
[97] According to the judgment, it is the letter of the Albanian Government
of July 2nd, 1947, which removes all difficulties, both regarding the
question of the admissibility of the Application and the question of the
Court's jurisdiction.
[98] The judgment gives on page 28 its explanation why this is the case "in
spite of the reservations stated" in the letter of July 2nd. The judgment
examines here "the scope of the reservations". In its view, "this
reservation is the only limit set by the Albanian Government either to its
acceptance of the Court's jurisdiction, or to its abandonment of any
objection to the admissibility of the proceedings". And the judgment holds
the following opinion concerning this reservation: "It is clear that the
reservation contained in the letter is intended only to maintain a principle
and to prevent the establishment of a precedent as regards the future." The
conclusion is: "The reservation in the letter of July 2nd, 1947, therefore
does not enable Albania to raise a preliminary objection based on an
irregularity of procedure, or to dispute thereafter the Court's jurisdiction
on the merits." [p43]
[99] In my view, the judgment passes over this important question of the
reservation in a more than summary and very incomplete way.
[100] The reservation is expressed in a special sentence and in the present
tense of the indicative mood: "the Albanian Government makes ....
reservations". The sentence immediately follows the declaration also
expressed in the present tense of the indicative mood that the Albanian
Government "is prepared, notwithstanding this irregularity in the action by
the Government of the United Kingdom, to appear before the Court". The
reservation is immediately connected to this preceding sentence by the word
"Nevertheless". A sentence starting with "Nevertheless" is surely not one
standing by itself but presupposes a preceding one.
[101] Neither in the sentence containing the reservation or in the preceding
one, is there any allusion whatsoever to a future case. Also there is not
the slightest indication that the reservation which the Albanian Government
makes, should not have its effect in the present case. The reader passes
from the preceding phrase to the reservation without observing any
difference in time in these two phrases. The Albanian Government is ready to
go before the Court, "Nevertheless" at the same time it expresses some
reservation.
[102] Such a grammatical and logical meaning of these sentences of the
letter of July 2nd appears so natural that, in fact, the judgment cannot
quote anything from them in support of its assertion that the reservation
was meant only to apply to a new case in the future. It is only in the
following phrase starting with the words "The Albanian Government wishes to
emphasize...." that the judgment believes it finds the grounds for its
interpretation.
[103] Now it happens that this, in the view of the judgment, "very important
phrase beginning with the words 'The Albanian Government wishes to
emphasize'.... " does not mention the reservation expressed in the preceding
phrase, in any way. The whole phrase refers only to the "acceptance of the
Court's jurisdiction in the present case" and says that it should not be
considered in the future as a precedent. Manifestly the acceptance of the
jurisdiction of the Court for the present case and a reservation expressed
and concerning two special points of the case, are two different things. The
phrase refers only to the acceptance of the jurisdiction of the Court for
the present case and does not refer to the reservation.
[104] The question may also be raised whether there would have been any
point in making the reservations which were formulated merely in view of a
new case in the future. The reservations are made in respect of the
Application of the United Kingdom of May 1947 concerning a concrete and
unique case and in respect of definite special grounds put forward to
support it, and the [p44] reservations cannot apply to any other case. In
any other new-case, new reservations must necessarily be made, which must be
formulated afresh as the new case may require.
[105] In this connexion, it must also be taken into consideration that the
whole phrase beginning with the words "The Albanian Government wishes to
emphasize...." does not contain any definite provision of law at all and is
to be appreciated rather as a political and diplomatic declaration.
[106] The acceptance of the jurisdiction of the Court in one particular
case, evidently cannot serve as a legal, binding precedent for any future
case. Also the phrase follows the preceding phrase only as a sort of
addendum.
[107] The conclusion is: if the reservation expressed in the letter of July
2nd is to have any meaning, it must not be considered in the light of
another phrase referring to a new case in the future, but rather in its
proper place and context and with due regard to its purpose in the present
case.
[108] The final phrase of paragraph 3 of the letter of July 2nd beginning
with the words "In these circumstances, the Albanian Government would be
within its rights...." does not weaken in any way the reservation under
discussion and expressed later in paragraph 4 of the letter.
[109] It is agreed that the United Kingdom Application of May 13th could be
made valid by means of consent to it given by the Albanian Government, even
a posteriori. The judgment expresses the opinion that the letter of July 2nd
declared such an intention of the Albanian Government. The judgment quotes,
on this point, the phrase of the letter "The Albanian Government would be
within its rights" and the phrase "it is prepared, notwithstanding this
irregularity...." and comes to the conclusion: "This language used by the
Albanian Government cannot be understood otherwise than as a waiver of the
right subsequently to raise an objection directed against the admissibility
of the Application founded on the alleged procedural irregularity of that
instrument."
[110] It is evident that such a conclusion is made possible only by a
complete disregard of the reservation expressed in the letter of July 2nd.
As soon as the reservation is recognized as operative in the present case,
the Application cannot be considered as validated. The reservation is made
in order to limit the acceptance of the jurisdiction of the Court by the
Albanian Government and it excludes a forum prorogatum on the basis of an
irregular application, which was not subsequently made valid.
[111] To the foregoing observations, I wish to add only the following: In
view of my reading of the letter of July 2nd, I was not obliged to make use
of the rules of interpretation in dubio stricto sensu [p45],etc., the rules
which should undoubtedly be applied, if necessary, in the present case. On
the other hand, it would be well for the majority of the Court to read and
interpret the letter of July 2nd stricto sensu. But it is sufficiently
manifest that these rules of interpretation were not applied.
Conclusion:
[112] As, according to my opinion, the British written Application was
irregular ab initio, and as the Albanian Government has not either expressis
verbis or tacitly done anything to make the application valid, I consider
that the Court for the time being is not competent to judge the merits and
that the preliminary objection should have been upheld.
(Signed) Dr. Daxner. |
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