| |
[p65]
The Court,
composed as above,
gives the following Advisory Opinion :
On October 22nd, 1949, the General Assembly of the United Nations adopted
the following Resolution :
"Whereas the United Nations, pursuant to Article 55 of the Charter, shall
promote universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language
or religion,
Whereas the General Assembly, at the second part of its Third Regular
Session, considered the question of the observance in Bulgaria and Hungary
of human rights and fundamental freedoms,
Whereas the General Assembly, on 30 April 1949, adopted Resolution 272 (III)
concerning this question in which it expressed its deep concern at the grave
accusations made against the Governments of Bulgaria and Hungary regarding
the suppression of human rights and fundamental freedoms in those
countries;, noted with satisfaction that steps had been taken by several
States signatories to the Treaties of Peace with Bulgaria and Hungary
regarding these accusations ; expressed the hope that measures would be
diligently applied, in accordance with the Treaties, in order to ensure
respect for human rights and fundamental freedoms ; and most urgently drew
the attention of the Governments of Bulgaria and Hungary to their
obligations under the Peace Treaties, including the obligation to co-operate
in the settlement of the question,
Whereas the General Assembly has resolved to consider also at the Fourth
Regular Session the question of the observance in Romania of human rights
and fundamental freedoms,
Whereas certain of the Allied and Associated Powers signatories to the
Treaties of Peace with Bulgaria, Hungary and Romania have charged the
Governments of those countries with violations of the Treaties of Peace and
have called upon those Governments to take remedial measures,
Whereas the Governments of Bulgaria, Hungary and Romania have rejected the
charges of Treaty violations,
Whereas the Governments of the Allied and Associated Powers concerned have
sought unsuccessfully to refer the question of Treaty violations to the
Heads of Mission in Sofia, Budapest and Bucharest, in pursuance of certain
provisions in the Treaties of Peace,
Whereas the Governments of these Allied and Associated Powers have called
upon the Governments of Bulgaria, Hungary and [p67]Romania to join in
appointing Commissions pursuant to the provisions of the respective Treaties
of Peace for the settlement of disputes concerning the interpretation or
execution of these Treaties,
Whereas the Governments of Bulgaria, Hungary and Romania have refused to
appoint their representatives to the Treaty Commissions, maintaining that
they were under no legal obligation to do so,
Whereas the Secretary-General of the United Nations is authorized by the
Treaties of Peace, upon request by either party to a dispute, to appoint the
third member of a Treaty Commission if the parties fail to agree upon the
appointment of the third member,
Whereas it is important for the Secretary-General to be advised
authoritatively concerning the scope of his authority under the Treaties of
Peace,
The General Assembly
1. Expresses its continuing interest in and its increased concern at the
grave accusations made against Bulgaria, Hungary and Romania;
2. Records its opinion that the refusal of the Governments of Bulgaria,
Hungary and Romania to co-operate in its efforts to examine the grave
charges with regard to the observance of human rights and fundamental
freedoms justifies this concern of the General Assembly about the state of
affairs prevailing in Bulgaria, Hungary and Romania in this respect;
3. Decides to submit the following questions to the International Court of
Justice for an advisory opinion :
I. Do the diplomatic exchanges between Bulgaria, Hungary and Romania, on the
one hand, and certain Allied and Associated Powers signatories to the
Treaties of Peace, on the other, concerning the implementation of Article 2
of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with
Romania, disclose disputes subject to the provisions for the settlement of
disputes contained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty
of Peace with Romania ?'
In the event of an affirmative reply to question 1:
'II. Are the Governments of Bulgaria, Hungary and Romania obligated to carry
out the provisions of the articles referred to in question 1, including the
provisions for the appointment of their representatives to the Treaty
Commissions ?'
In the event of an affirmative reply to question II and if within thirty
days from the date when the Court delivers its opinion, [p68] the
Governments concerned have not notified the Secretary-General that they have
appointed their representatives to the Treaty Commissions, and the
Secretary-General has so advised the International Court of Justice :
'III. If one party fails to appoint a representative to a Treaty Commission
under the Treaties of Peace with Bulgaria, Hungary and Romania where that
party is obligated to appoint a representative to the Treaty Commission, is
the Secretary-General of the United Nations authorized to appoint the third
member of the Commission upon the request of the other party to a dispute
according to the provisions of the respective Treaties ?'
In the event of an affirmative reply to question III :
'IV. Would a Treaty Commission composed of a representative of one party and
a third member appointed by the Secretary-General of the United Nations
constitute a Commission, within the meaning of the relevant Treaty articles,
competent to make a definitive and binding decision in settlement of a
dispute ?'
4.Requests the Secretary-General to make available to the International
Court of Justice the relevant exchanges of diplomatic correspondence
communicated to the Secretary-General for circulation to the Members of the
United Nations and the records of the General Assembly proceedings on this
question;
5.Decides to retain on the agenda of the Fifth Regular Session of the
General Assembly the question of the observance of human rights and
fundamental freedoms in Bulgaria, Hungary and Romania, with a view to
ensuring that the charges are appropriately examined and dealt with."
By a letter of October 31st, 1949, filed in the Registry on November 3rd,
the Secretary-General of the United Nations transmitted to the Court a
certified the copy of the General Assembly's Resolution.
On November 7th, 1949, in accordance with paragraph I of Article 66 of the
Court's Statute, the Registrar gave notice of the Request to all States
entitled to appear before the Court. On the same date, the Registrar, by
means of a special and direct communication as provided in paragraph 2 of
the above-mentioned article, informed all States entitled to appear before
the Court and parties to one or more of the above-mentioned Peace Treaties
(Australia, Canada, United States of America, Greece, India, New Zealand,
Pakistan, United Kingdom of Great Britain and Northern Ireland, Byelorussian
Soviet Socialist Republic, Ukrainian Soviet Socialist Republic,
Czechoslovakia, Union of Soviet Socialist Republics, Union of South Africa,
Yugoslavia) that the Court was prepared to receive from them written
statements on the questions submitted [p69] to it for an advisory opinion
and to hear oral statements at a date which would be fixed in due course.
An identical communication was sent, also on November 7th, in pursuance of
paragraph I of Article 63 of the Statute, to the other States parties to one
of the above-mentioned Treaties, namely, Bulgaria, Hungary and Romania.
These communications were accompanied by copies of an Order, made on the
same date, by which the Acting President of the Court appointed January
16th, 1950, as the date of expiry of the time-limit for the submission of
written statements and reserved the rest of the procedure for further
decision.
Written statements and communications were received within the prescribed
time-limit from the following States : United States of America, United
Kingdom, Bulgaria, Ukrainian Soviet Socialist Republic, Union of Soviet
Socialist Republics, Byelorussian Soviet Socialist Republic, Romania,
Czechoslovakia, Australia and Hungary.
In accordance with Article 65 of the Statute, the Secretary-General of the
United Nations transmitted to the Registrar a set of documents which reached
the Registry on November 26th, 1949. Some additional documents, which had
subsequently been filed with the Secretariat, were forwarded to the
Registry, where they arrived on February 24th, 1950. All these documents are
enumerated in the list attached to the present Opinion.
In a letter dated January 23rd, 1950, the Assistant Secretary-General in
charge of the Legal Department of the Secretariat of the United Nations
announced that he intended to take part in the oral proceedings and to
submit a statement on behalf of the Secretary-General.
The Government of the United Kingdom and the Government of the United States
of America stated, in letters dated respectively January 6th and February
10th, 1950, that they intended to submit oral statements.
At public sittings held on February 28th and on March 1st and 2nd, 1950, the
Court heard oral statements submitted :
on behalf of the Secretary-General of the United Nations by Mr. Ivan Kerno,
Assistant Secretary-General in charge of the Legal Department;
on behalf of the Government of the United States of America by the Honorable
Benjamin V. Cohen ;
on behalf of the Government of the United Kingdom by Mr. G. G. Fitzmaurice,
C.M.G., Second Legal Adviser of the Foreign Office.[p70]
***
In conformity with the Resolution of the General Assembly of October 22nd,
1949, the Court is at present called upon to give an Opinion only on
Questions 1 and II set forth in that Resolution.
The power of the Court to exercise its advisory function in the present case
has been contested by the Governments of Bulgaria, Hungary and Romania, and
also by several other Governments, in the communications which they have
addressed to the Court.
This objection is founded mainly on two arguments.
It is contended that the Request for an Opinion was an action ultra vires on
the part of the General Assembly because, in dealing with the question of
the observance of human rights and fundamental freedoms in the three States
mentioned above, it was "interfering" or "intervening" in matters
essentially within the domestic jurisdiction of States. This contention
against the exercise by the Court of its advisory function seems thus to be
based on the alleged incompetence of the General Assembly itself, an
incompetence deduced from Article 2, paragraph 7, of the Charter.
The terms of the General Assembly's Resolution of October 22nd, 1949,
considered as a whole and in its separate parts, show that this argument is
based on a misunderstanding. When the vote was taken on this Resolution, the
General Assembly was faced with a situation arising out of the charges made
by certain Allied and Associated Powers, against the Governments of
Bulgaria, Hungary and Romania of having violated the provisions of the Peace
Treaties concerning the observance of human rights and fundamental freedoms.
For the purposes of the present Opinion, it suffices to note that the
General Assembly justified the adoption of its Resolution by stating that
"the United Nations, pursuant to Article 55 of the Charter, shall promote
universal respect for and observance of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion".
The Court is not called upon to deal with the charges brought before the
General Assembly since the Questions put to the Court relate neither to the
alleged violations of the provisions of the Treaties concerning human rights
and fundamental freedoms nor to the interpretation of the articles relating
to these matters. The object of the Request is much more limited. It is
directed solely to obtaining from the Court certain clarifications of a
legal nature regarding the applicability of the procedure for the
settlement of disputes by the Commissions provided for in the express terms
of Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with
Hungary and Article 38 of the Treaty with Romania. The interpretation of the
terms of a treaty for this purpose could not be considered as a question
essentially within the domestic jurisdiction of a State. It is a question of
inter-[p71]national law which, by its very nature, lies within the
competence of the Court.
These considerations also suffice to dispose of the objection based on the
principle of domestic jurisdiction and directed specifically against the
competence of the Court, namely, that the Court, as an organ of the United
Nations, is bound to observe the provisions of the Charter, including
Article 2, paragraph 7.
The same considerations furnish an answer to the objection that the advisory
procedure before the Court would take the place of the procedure instituted
by the Peace Treaties for the settlement of disputes. So far from placing an
obstacle in the way of the latter procedure, the object of this Request is
to facilitate it by seeking information for the General Assembly as to its
applicability to the circumstances of the present case.
It thus appears that these objections to the Court's competence to give the
Advisory Opinion which has been requested are ill-founded and cannot be
upheld.
Another argument that has been invoked against the power of the Court to
answer the Questions put to it in this case is based on the opposition of
the Governments of Bulgaria, Hungary and Romania to the advisory procedure.
The Court cannot, it is said, give the Advisory Opinion requested without
violating the well-established principle of international law according to
which no judicial proceedings relating to a legal question pending between
States can take place without their consent.
This objection reveals a confusion between the principles governing
contentious procedure and those which are applicable to Advisory Opinions.
The consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases. The situation is different in regard to
advisory proceedings even where the Request for an Opinion relates to a
legal question actually pending between States. The Court's reply is only of
an advisory character: as such, it has no binding force. It follows that no
State, whether a Member of the United Nations or not, can prevent the giving
of an Advisory Opinion which the United Nations considers to be desirable in
order to obtain enlightenment as to the course of action it should take. The
Court's Opinion is given not to the States, but to the organ which is
entitled to request it; the reply of the Court, itself an "organ of the
United Nations", represents its participation in the activities of the
Organization, and, in principle, should not be refused.
There are certain limits, however, to the Court's duty to reply to a Request
for an Opinion. It is not merely an "organ of the United Nations", it is
essentially the "principal judicial organ" of the Organization (Art. 92 of
the Charter and Art. I of the Statute). It is on account of this character
of the Court that its [p72] power to answer the present Request for an
Opinion has been challenged.
Article 65 of the Statute is permissive. It gives the Court the power to
examine whether the circumstances of the case are of such a character as
should lead it to decline to answer the Request. In the opinion of the
Court, the circumstances of the present case are profoundly different from
those which were before the Permanent Court of International Justice in the
Eastern Carelia case (Advisory Opinion No. 5), when that Court declined to
give an Opinion because it found that the question put to it was directly
related to the main point of a dispute actually pending between two States,
so that answering the question would be substantially equivalent to deciding
the dispute between the parties, and that at the same time it raised a
question of fact which could not be elucidated without hearing both parties.
As has been observed, the present Request for an Opinion is solely concerned
with the applicability to certain disputes of the procedure for settlement
instituted by the Peace Treaties, and it is justifiable to conclude that it
in no way touches the merits of those disputes. Furthermore, the settlement
of these disputes is entrusted solely to the Commissions provided for by the
Peace Treaties. Consequently, it is for these Commissions to decide upon any
objections which may be raised to their jurisdiction in respect of any of
these disputes, and the present Opinion in no way prejudges the decisions
that may be taken on those objections. It follows that the legal position of
the parties to these disputes cannot be in any way compromised by the
answers that the Court may give to the Questions put to it.
It is true that Article 68 of the Statute provides that the Court in the
exercise of its advisory functions shall further be guided by the provisions
of the Statute which apply in contentious cases. But according to the same
article these provisions would be applicable only "to the extent to which it
[the Court] recognizes them to be applicable". It is therefore clear that
their application depends on the particular circumstances of each case and
that the Court possesses a large amount of discretion in the matter. In the
present case the Court is dealing with a Request for an Opinion, the sole
object of which is to enlighten the General Assembly as to the opportunities
which the procedure contained in the Peace Treaties may afford for putting
an end to a situation which has been presented to it. That being the object
of the Request, the Court finds in the opposition to it made by Bulgaria,
Hungary and Romania no reason why it should abstain from replying to the
Request.
For the reasons stated above, the Court considers that it has the power to
answer Questions 1 and II and that it is under a duty to do so. [p73]
***
Question 1 is framed in the following terms:
"Do the diplomatic exchanges between Bulgaria, Hungary and Romania on the
one hand and certain Allied and Associated Powers signatories to the
Treaties of Peace on the other, concerning the implementation of Article 2
of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with
Romania, disclose disputes subject to the provisions for the settlement of
disputes contained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary and Article 38 of the Treaty
of Peace with Romania ?"
The text of the articles mentioned in Question 1 is as follows :
Article 2 of the Treaty with Bulgaria (to which correspond mutatis mutandis
Article 2, paragraph 1, of the Treaty with Hungary and Article 3, paragraph
1, of the Treaty with Romania) :
"Bulgaria shall take all measures necessary to secure to all persons under
Bulgarian jurisdiction, without distinction as to race, sex, language or
religion, the enjoyment of human rights and of the fundamental freedoms,
including freedom of expression, of press and publication, of religious
worship, of political opinion and of public meeting."
Article 36 of the Treaty with Bulgaria (to which correspond mutatis mutandis
Article 40 of the Treaty with Hungary and Article 38 of the Treaty with
Romania) :
"1. Except where another procedure is specifically provided under any
article of the present Treaty, any dispute concerning the interpretation or
execution of the Treaty, which is not settled by direct diplomatic
negotiations, shall be referred to the Three Heads of Mission acting under
Article 35, except that in this case the Heads of Mission will not be
restricted by the time-limit provided in that Article. Any such dispute not
resolved by them within a period of two months shall, unless the parties to
the dispute mutually agree upon another means, of settlement, be referred
at the request of either party to the dispute to a Commission composed of
one representative of each party and a third member selected by mutual
agreement of the two parties from nationals of a third country. Should the
two parties fail to agree within a period of one month upon the appointment
of the third member, the Secretary-General of the United Nations may be
requested by either party to make the appointment.
2. The decision of the majority of the members of the Commission shall be
the decision of the Commission, and shall be accepted by the parties as
definitive and binding."
The text of Article 35, which is referred to in Article 36 of the Treaty
with Bulgaria (and to which correspond mutatis mutandis Article 39 of the
Treaty with Hungary and Article 37 of the Treaty with Romania), is as
follows:[p74]
"1. For a period not to exceed eighteen months from the coming into force of
the present Treaty, the Heads of the Diplomatic Missions in Sofia of the
Soviet Union, the United Kingdom and the United States of America, acting in
concert, will represent the Allied and Associated Powers in dealing with the
Bulgarian Government in all matters concerning the execution and
interpretation of the present Treaty.
2. The Three Heads of Mission will give the Bulgarian Government such
guidance, technical advice and clarification as may be necessary to ensure
the rapid and efficient execution of the present Treaty both in letter and
in spirit.
3. The Bulgarian Government shall afford the said Three Heads of Mission all
necessary information and any assistance which they may require in the
fulfilment of the tasks devolving on them under the present Treaty."
Question 1 involves two main points. First, do the diplomatic exchanges
between Bulgaria, Hungary and Romania on the one hand and certain Allied and
Associated Powers signatories to the Peace Treaties on the other, disclose
any disputes ? Second, if they do, are such disputes among those which are
subject to the provisions for the settlement of disputes contained in
Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with
Hungary, and Article 38 of the Treaty with Romania ?
Whether there exists an international dispute is a matter for objective
determination. The mere denial of the existence of a dispute does not prove
its non-existence. In the diplomatic corre-spondence submitted to the Court,
the United Kingdom, acting in association with Australia, Canada and New
Zealand, and the United States of America charged Bulgaria, Hungary and
Romania with having violated, in various ways, the provisions of the
articles dealing with human rights and fundamental freedoms in the Peace
Treaties and called upon the three Governments to take remedial measures to
carry out their obligations under the Treaties. The three Governments, on
the other hand, denied the charges. There has thus arisen a situation in
which the two sides hold clearly opposite views concerning the question of
the performance or non-performance of certain treaty obligations. Confronted
with such a situation, the Court must conclude that international disputes
have arisen.
This conclusion is not invalidated by the text of Article 36 of the Treaty
with Bulgaria (Article 40 of the Treaty with Hungary and Article 38 of the
Treaty with Romania). This article, in referring to "any dispute", is
couched in general terms. It does not justify limiting the idea of "the
dispute" to a dispute between the United States of America, the United
Kingdom and the Union of Soviet Socialist Republics acting in concert on the
one hand, and Bulgaria [p75] (Hungary or Romania) on the other. In the
present case, a dispute exists between each of the three States—Bulgaria,
Hungary and Romania—and each of the Allied and Associated States which sent
protests to them.
The next point to be dealt with is whether the disputes are subject to the
provisions of the articles for the settlement of disputes contained in the
Peace Treaties. The disputes must be considered to fall within those
provisions if they relate to the interpretation or execution of the
Treaties, and if no other procedure of settlement is specifically provided
elsewhere in the Treaties.
Inasmuch as the disputes relate to the question of the performance or
non-performance of the obligations provided in the articles dealing with
human rights and fundamental freedoms, they are clearly disputes concerning
the interpretation or execution of the Peace Treaties. In particular,
certain answers from the Governments accused of violations of the Peace
Treaties make use of arguments which clearly involve an interpretation of
those Treaties.
Since no other procedure is specifically provided in any other article of
the Treaties, the disputes must be subject to the methods of settlement
contained in the articles providing for the settlement of all disputes.
The Court thus concludes that Question 1 must be answered in the
affirmative.
In these circumstances, it becomes necessary to take up Question II, which
is as follows :
"Are the Governments of Bulgaria, Hungary and Romania obligated to carry out
the provisions of the articles referred to in Question 1, including the
provisions for the appointment of their representatives to the Treaty
Commissions ?"
Before answering the Question, the Court must determine the scope of the
expression "the provisions of the articles referred to in Question 1".
Question 1 mentions two sets of articles : one set being those articles
concerning human rights, namely, Article 2 of the Treaties with Bulgaria and
Hungary, and Article 3 of the Treaty with Romania ; the other set being
those articles concerning the settlement of disputes, namely, Article 36 of
the Treaty with Bulgaria, Article 40 of the Treaty with Hungary and Article
38 of the Treaty with Romania. The Court considers that the expression "the
provisions of the articles referred to in Question 1" refers only to the
articles providing for the settlement of disputes, and does not refer to the
articles dealing with human rights.[p76]
This view is clearly borne out by the various considerations stated in the
Resolution of the General Assembly of October 22nd, 1949. It is confirmed by
the fact that the Questions put to the Court have for their sole object to
determine whether the disputes, if they exist, are among those falling under
the procedure provided for in the Treaties with a view to their settlement
by arbitration. The Court does not think that the General Assembly would
have asked it whether Bulgaria, Hungary and Romania are obligated to carry
out the articles concerning human rights. For, in the first place, the three
Governments have not denied that they are obligated to carry out these
articles. In the second place, the words which precede Question II, "In the
event of an affirmative answer to Question 1", exclude the idea that
Question II refers to the articles relating to human rights. There is no
reason why the General Assembly should have made the consideration of the
question concerning human rights depend on an affirmative answer to a
question relating to the existence of disputes. The articles concerning
human rights are mentioned in Question 1 only by way of describing the
subject-matter of the diplomatic exchanges between the States concerned.
The real meaning of Question II, in the opinion of the Court, is this : In
view of the disputes which have arisen and which have so far not been
settled, are Bulgaria, Hungary and Romania obligated to carry out,
respectively, the provisions of Article 36 of the Treaty with Bulgaria,
Article 40 of the Treaty with Hungary, and Article 38 of the Treaty with
Romania ?
The articles for the settlement of disputes provide that any dispute which
is not settled by direct diplomatic negotiations shall be referred to the
Three Heads of Mission. If not resolved by them within a period of two
months, the dispute shall, unless the parties to the dispute agree upon
another means of settlement, be referred at the request of either party to
the dispute to a Commission composed of one representative of each party
and a third member, to be selected in accordance with the relevant articles
of the Treaties.
The diplomatic documents presented to the Court show that the United Kingdom
and the United States of America on the one hand, and Bulgaria, Hungary and
Romania on the other, have not succeeded in settling their disputes by
direct negotiations. They further show that these disputes were not resolved
by the Heads of Mission within the prescribed period of two months. It is a
fact that the parties to the disputes have not agreed upon any other means
of settlement. It is also a fact that the United Kingdom and the United
States of America, after the expiry of the prescribed period, requested that
the disputes should be settled by the Commissions mentioned in the
Treaties.[p77]
This situation led the General Assembly to put Question II so as to obtain
guidance for its future action.
The Court finds that all the conditions required for the commencement of
the stage of the settlement of disputes by the Commissions have been
fulfilled.
In view of the fact that the Treaties provide that any dispute shall be
referred to a Commission "at the request of either party", it follows that
either party is obligated, at the request of the other party, to CO-operate
in constituting the Commission, in particular by appointing its
representative. Otherwise the method of settlement by Commissions provided
for in the Treaties would completely fail in its purpose.
The reply to Question II, as interpreted above, must therefore be in the
affirmative.
For these reasons,
The Court is of opinion,
On Question I:
by eleven votes to three,
that the diplomatic exchanges between Bulgaria, Hungary and Romania on the
one hand and certain Allied and Associated Powers signatories to the
Treaties of Peace on the other, concerning the implementation of Article 2
of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with
Romania, disclose disputes subject to the provisions for the settlement of
disputes contained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty
of Peace with Romania;
On Question II:
by eleven votes to three,
that the Governments of Bulgaria, Hungary and Romania are obligated to carry
out the provisions, of those articles referred to in Question 1, which
relate to the settlement of disputes, including the provisions for the
appointment of their representatives to the Treaty Commissions.
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this thirtieth day of March, one thousand nine
hundred and fifty, in two copies, one of which will [p78] be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the United Nations.
(Signed) Basdevant,
President.
(Signed) E. Hambro,
Registrar.
Judge Azevedo, while concurring in the Opinion of the Court, has availed
himself of the right conferred on him by Article 57 of the Statute and
appended to the Opinion a statement of his separate opinion.
Judges Winiarski, Zoričic and Krylov, considering that the Court should have
declined to give an Opinion in this case, have availed themselves of the
right conferred on them by Article 57 of the Statute and appended to the
Opinion statements of their dissenting opinions.
(Initialled) J. B.
(Initialled) E. H. [p79]
SEPARATE OPINION BY JUDGE AZEVEDO
[Translation]
1. Being unable to reconcile in my mind the notions which, though of a
differing character, have been decided by one and the same vote, namely the
preliminary point regarding the Court's capacity to comply with the Request
for an Opinion and the answer which the Court should give to the questions
put to it, I have found some difficulty in expressing my view. True, I would
have preferred that the Court should have abstained from answering the
question; as however that preliminary proposition did not find acceptance, I
feel none the less obliged to state my opinion on the subject of the
aforesaid questions, and I find no difficulty in giving it entirely in the
same sense as the Opinion of the Court.
I cannot, however, refrain from explaining the reasons which, in my view,
should have led the Court to abstain from answering the Request, seeing that
the latter relates to a definite and clearly specified situation. In the
Advisory Opinion concerning the Admission of new Members, I had already
expressed, in my separate Opinion, my view that the subject of an advisory
opinion should always be stated in an abstract form (C.I.J. Reports
1947-1948, pp. 73-75). But the prominence which the problem has assumed in
the present case obliges me to explain my position in fuller detail.
2. In the days of the League of Nations, there was a tendency, which was
accentuated by practice, to assimilate the advisory function of the
Permanent Court with its function in contentious cases.
In spite of this tendency, it came to be recognized that there was a
profound difference between opinions directed to a simple "point" or a
"question" and opinions relating to an already existing "dispute" ; in the
former type of case, the Court was only concerned with a purely legal aspect
of some question on which mere "informateurs", whose role was strictly
limited, gave some preliminary explanations, whereas in the latter instance
the Court was dealing with a genuine dispute.
Although, from a formal standpoint, the nature of all advisory opinions is
the same—a simple relation between the Court and the requesting
organization—an opinion delivered in respect of a "point" is, from a
juridical standpoint, different from an opinion delivered in regard to a
"dispute". That situation was noted by Negulesco ("L'évolution de la
procédure des avis consultatifs", in Recueil des Cours, V. 57, p. 9).[p80]
Hammarskjöld also wrote :
"It follows, without any possible doubt, that it would be contrary to the
intention of the authors of the Covenant to regard the clause in question as
a means of introducing into the Covenant, by a circuitous route, the idea of
compulsory jurisdiction which had been deliberately excluded from it. But it
is also clear that, in the view of the authors of the Covenant, the advisory
function of the Court should be one whose exercise should be surrounded by
all the necessary judicial safeguards." (Juridiction internationale— "In
memoriam", 1938, p. 284:)
In order to make that position secure, the Permanent Court had to claim the
power of spontaneously examining its jurisdiction, by giving a general
application to Article 36, paragraph 6, of the Statute, and also of
examining the receivability of the request. As a result, the States
concerned obtained the standing of parties, with an increased freedom of
action.
3, The problem of the consent of the parties arose in regard to advisory
opinions relating to a "dispute" which was already in existence.
True, it was generally recognized that an ordinary advisory opinion did not
produce the effects of the res judicata ; nevertheless, that fact is not
sufficient to deprive an advisory opinion of all the moral consequences
which are inherent iq the dignity of the organ delivering the opinion, or
even of its legal consequences.
It is necessary to point out, incidentally, that the phenomenon of the res
judicata has not the same importance in international law as it has in
municipal law, where the judgment is enforceable by the State. On the
contrary, international judgments are usually declaratory, and it is only in
recent times that the idea of indirect sanctions applied by a third organ
has been entertained. There remains the negative aspect of the question, the
rule which forbids the renewal of a request on the ground of exceptio rei
juditatœ, though it has been rarely applied in the international sphere.
Hammarskjöld, after an exhaustive study of this aspect of the question,
observed that the legal explanations, which it has been sought to elaborate,
have in no way modified the reality of the facts, namely that there was a
certain compelling force, distinct from the force of the res judicata,
attaching to the opinions of the old Court (op. cit., pp. 289-291).
In the report of a committee, composed of Judges Loder, Moore and Anzilotti,
which accompanied the clause in the Rules of Court that now constitutes
Article 83, we find a series of affirmations leading up to the following
conclusions :
"In reality, where there are in fact contending parties, the difference
between contentious cases and advisory cases is only nominal.... So that the
view that advisory opinions are not binding is more theoretical than real."
(P.C.I.J., Series E, No. 4, 1927, p. 76, English text.) [p81]
4. The importance of affirming this postulate—the necessity of the consent
of the parties—was so pressing that the Court looked for an opportunity of
doing so. It found it in connexion with the case of Eastern Carelia, on July
23rd, 1923, being desirous, most probably, of preventing, once for all, the
recurrence of requests of this kind, by which the Council might charge it,
indirectly, with the settlement of disputes already pending.
The Court declared with incomparable justice :
"Answering the question would be substantially equivalent to deciding the
dispute between the parties. The Court, being a Court of Justice, cannot,
even in giving advisory opinions, depart from the essential rules guiding
its activity as a Court."
And it made that statement after having declared that:
"The Court is aware of the fact that it is not requested to decide a
dispute, but to give an advisory opinion." (P.C.I. J., Series B, No. 55, p.
28.)
It is true that mention was made in that Advisory Opinion of another
compelling reason, namely the impossibility of investigating the facts
owing to the definite refusal of one of the governments engaged in the
dispute. That was a reason which might have made it unnecessary to give
other grounds in justification of a refusal to answer. Yet that reason had
to yield precedence to another which might quite well have been simply
mentioned as obiter dictum. The Permanent Court thought it right to
disregard all judicial conventions so as to give prominence to the reason
which it regarded as essential.
5. It has also been contended that the Court departed from that radical
position in its Advisory Opinion of November 21st, 1925, in the Mosul case ;
the allegation is incorrect, for the rule requiring the consent of the
parties is quite compatible with a certain degree of flexibility in the
ascertainment of that fact, in virtue of the principle of the forum
prorogatum.
In the case of Eastern Carelia, the Court had already indicated a contrario
sensu that consent might be given at any time (P.C.I.J., Series B, No. 5, p.
28) ; in the Mosul case, Turkey, in spite of the objections she had
signified to the Council, did not meet the Court with a refusal but, on the
contrary, gave an unmistakable tacit assent.
It is evident by the wording of the telegram in which Turkey made her
reservations that she in no way disputed the competence of the Court, as
distinct from that of the Council; she merely con-tended that, having stated
her point of view, she did not find it necessary to present written or oral
statements, which are merely documents of the procedure. (P.C.I.J., Series
B, No. 12, p. 8.)
6. The time came when the desirability of obtaining the accession of the
United States to the Statute of the Permanent Court was [p82] recognized ;
we all remember the essential reservation adopted by the American Senate on
January 27th, 1926, as a condition for adherence to the Protocol of
Signature of 1920 :
"Nor shall it [the Court] without the consent of the United States entertain
any request for an advisory opinion touching any dispute or question in
which the United States has or claims an interest."
The feature that chiefly strikes one in the long and laborious negotiations
which took place at that time is the exaltation of the Court's decision on
the point of principle in the Eastern Carelia case ; that decision was even
invested with a conventional character as a consequence of a unanimous vote
by the Council and Assembly, for it was thought desirable to give it the
hall-mark of immutability in order to forestall any change of
jurisprudence, not only in regard to opinions touching disputes to which the
United States might Fe a party, but in regard to all cases, including
ordinary questions, in which that country claimed to have an interest.
7. It must now be considered whether the above-mentioned régime has been
modified by the adoption of the Charter of San Francisco.
The proposals put forvard at Dumbarton Oaks endowed the new Security Council
with power to ask for opinions, no longer on "disputes", but only in regard
to legal "questions" connected with other "disputes" (Chapter: VIII, Section
A, No. 6). Thus, they did not confuse the means and the end, the container
and its content, the whole and the part.
Finally, preference was given to a general formula, that of the present
Article 96 of the Charter, though care was taken not to reintroduce the
cognate terms "points" and "disputes", which had evoked so many protests and
created such difficulties. A mere comparison of the texts of the Covenant
and the Charter suffice at once to reveal the restrictions which were placed
on the Court's advisory function.
8. It is true that the Court, which has been raised to the status of a
principal organ and thus more closely geared into the mechanism of the
U.N.O., must do its utmost to co-operate with the other organs with a view
to attaining the aims and principles that have been set forth.
But there are certain limits which a judicial court may not overstep, even
in the exercise of an advisory function assigned to it as a subsidiary
activity. For instance, the absence of consent without doubt constitutes a
non possumus which the Court will be obliged to declare, if only as an
exceptional step.[p83]
9. The recognition that there is no clause restricting the right or duty of
giving advisory opinions is not sufficient ground for concluding that the
consent of the States directly concerned is not required. That would be an
over-simplified interpretation, though it might have been more easily relied
upon in connexion with the former Article 14 of the Covenant, which
explicitly referred to "disputes" ; but in fact, it was the opposite
solution which prevailed.
To-day, we are no longer concerned with "disputes". Beginning with the very
first draft, we find no mention of anything but legal "questions". It has
not even been found necessary to change the word "questions" in the English
text, though in the French version the word "questions" has had to be
substituted for “points"—an alteration without any significance.
Accordingly, the compelling reason which had led to the abolition of one of
the clauses of the Covenant—i.e. the refusal to make use of the advisory
function to decide a genuine dispute at law over the heads of the parties
concerned—continues to retain its force, for it is the only means of
avoiding a misuse of that function.
10. There are a number of circumstances which combine to forbid the
abandonment of a conclusion so firmly established under the former régime.
To begin with, it must be recognized that neither the resolutions and
appeals emanating from all parts of the world nor the efforts of learned
jurists were successful in establishing this compulsory jurisdiction of the
Court, in spite of the numerous proposals put forward at San Francisco.
The parliamentary debates occasioned in different countries by the
ratification of the Charter confirm that conclusion. It may be pointed out,
for example, that the conditions attached by the United States Senate to the
acceptance of the so-called Optional Clause do not deviate in substance from
the Senate's attitude in 1926; they are evidence of a continuing anxiety in
regard to possible excesses in this sphere.
It is also appropriate to cite a precedent of our own Court. It concerned a
recommendation by the Security Council, a body which is equipped with
powerful means of enforcement and appointed as mandatory of all the Member
States in matters relating to security and world peace. Although the
majority of the Court saw no reason for discussing the value of this
recommendation, for they considered that the party before them had given its
consent, seven of the judges found it necessary, in a joint Opinion, to
express their definite opposition to a doctrine maintained before the Court
by one of the parties. They did so in the following terms :
"it appears impossible for us to accept; an interpretation according to
which this article [Art. 36, No. 3], without explicitly saying so, has
introduced more or less surreptitiously a new case of compulsory
jurisdiction" (I.C.J. Reports 1947-1948, p. 32). [p84]
11. The right of requesting opinions assumed a considerable extension in
1945, but that fact is merely additional evidence of the impossibility of
admitting the existence of a substitute form of compulsory jurisdiction.
Without even requiring a unanimous vote, or even the existence of a proper
quorum, the right to request opinions has been assigned to almost any organ
of the U.N.O. and to the specialized agencies which may at any time be
authorized by the General Assembly to make such a request (Art. 96, para.
2), whereas formerly an examination of the particular case was requisite
before the Assembly could transmit the Request.
One can imagine the anarchy which would ensue if the Court had to examine
"disputes" actually pending between States—whether Members or non-members of
the U.N.0.—at the request of any or all of these organs or agencies without
any assurances being required as to the previous consent of the States
concerned ; to realize the possible effects of such a mischievous
arrangement, it suffices to read the reports in the Yearbooks of the Court
where it appears that nearly a score of institutions have been endowed with
a full or limited right to ask the Court for advisory opinions on legal
questions arising in their field of activity.
12. This is not the time to examine what should be our concept of
sovereignty at the present day, but no doubt it is implied de jure condito
in the indirect form of sovereign equality, and it is perhaps strengthened
by the clause in the Charter concerning the exclusive competence of States,
especially if we compare that clause with the one which formerly dealt with
so-called domestic questions.
At any rate, it must be recognized that this well-known conception
underlies the requirement of inter volentes, as a condition for any
international activities in the arbitral or judicial spheres.
But sovereignty is so highly sensitive a conception that even a judgment of
a moral sort, or a simple opinion, may offend it; and it would be very
unwise- to leave that conception, without any protection, at the mercy of
the caprice of a simple majority in any agency which might happen to be
authorized to ask for an advisory opinion, in precisely the same terms, as
are applicable to the General Assembly or the Security Council.
13. Accordingly, now that the obstacle represented by Article 14has been
eliminated, it is necessary, in order to avoid a recurrence of the dangers
which had, as a fact, been removed by a judicious interpretation of that
badly-drawn text, to guide the activities of the Court on to a neutral
ground, where legal issues can be isolated from the facts, or at any rate
from the more immediate circumstances to which they owe their origin.
It is always easier to work in the abstract, and any difficulties which we
encounter in doing so will be amply recompensed by the [p85] knowledge that
sovereign States are thus being protected from needless annoyance.
In discussing the Opinion referred to above, I emphasized the obvious
importance for the Court of isolating points of doctrine in order to remove
"disputes", which might be pending, from its purview. On the one hand, the
Court would be kept aloof from inflammable matters without straying from its
proper field of activity, and, on the other hand, the organs which had
requested it for opinions would find it easier to adopt whatever decisions
were called for in a given case without fearing that the Court might feel
slighted by such action (I.C.J. Reports 1947-1948, p. 74).
It was this consideration which inspired the Court in the wording of that
Advisory Opinion, which was drawn up with remarkable skill so as to
emphasize the abstract character of the questions put to the Court, although
some of the consideranda in the preamble contained allusions to a specific
situation (vol. cit., p. 61), a circumstance which, on the other hand, gave
scope for the elaboration of dissenting opinions (vol. cit., pp. 94 and
107).
No doubt it is always possible to discern at the base of any abstract
opinion a specific situation which is alluded to remotely or indirectly ;
for, apart from any factitious attitude of mere curiosity, there is always a
fact underlying any question. But it is necessary to refrain from too deep
or too searching an effort for its discovery, not from a vain desire to
create purely artificial situations, but to promote the usefulness of the
advisory function by reducing the difficulties.
We should constantly bear in mind that the distinction between abstract and
concrete questions, established in Lapradelle's report as early as 1920,
remains immune from the confusion introduced by another discarded notion,
that of the recognition of a dispute of earlier origin.
The Court must endeavour to adhere to the course that it has followed in its
previous advisory opinions, that is, it should answer questions of a general
character without respect of persons or of States.
14. In this connexion, I have observed that the Rules of the new Court, far
from facilitating this sound practice, have taken a directly opposite
course, and endeavour to maintain an obsolete system, represented by the
dangerous distinction between a "question" and a "dispute" (vol. cit., p.
73).
As it would have been inadmissible to retain the word "dispute" which had
already disappeared, the Rules of Court have attached the word "existing"
(now modified to read "actually pending") to the word "question", though
that term was appropriate neither to "point" nor to "question", but only to
"dispute".
In consequence, we have returned to the untenable hypothesis which had
become a closed chapter ever since the case of Eastern [p86] Carelia, I
mean the hypothesis that an opinion may be delivered against the will of a
parts to a dispute that has been found to be pending.
The result, as it was easy to foresee, has been that it was found impossible
ever to apply the text of the Rules which have retained the actual basis of
this unfortunate distinction :
"it [the Court] shall above all consider whether the request for the
advisory opinion relates to a legal question actually pending between two or
more States" (Article 82, para. 1, in fine).
Several opinions have already been requested, but the Court has not yet
enunciated any preliminary rule which would make it possible to decide, with
complete impartiality, whether the States were appearing as parties or
merely as ordinary "informers". In the present case for instance, some of
the parties have asked to be considered simply as "informateurs", a claim
which is inconsistent with the very nature of their positions in the case.
15. In regard to the appointment of a judge ad hoc, it maybe mentioned that
the Permanent Court finally accepted that arrangement, under the influence
of the former Article 14. But, when that article had disappeared, it would
have been logical also to abolish Article 83 of the Rules, for such a right
is quite inconsistent with theoretical or abstract opinions—the only kind of
opinions which the Court should now give upon legal "questions". Naturally,
if a State agreed to have its "dispute" settled by a mere opinion, the
advisory procedure would lose its true nature and would assume that of
procedure by Special Agreement, thus rendering Article 31 of the Statute
also applicable. In that way we should come back to the celebrated "advisory
arbitration" which was introduced in the case of the Nationality Decrees in
Tunis and Morocco (P.C.I.J., Series B, No. 4, p. 8).
The Rules of Court contain clauses which overstep the limits fixed by the
Statute and which should be abolished in order to avoid confusion being
caused, especially to the numerous organs which are entitled to request
opinions. We should, on the contrary, offer guidance to these organs in the
formulation of their requests which should, as far as possible, be silent
regarding the facts, with a view to promoting the rapid and easy decision of
cases in which there are legal points to be elucidated, in the first place.
16. In the present case, one is struck immediately by the extreme simplicity
of the questions asked, at any rate of those with which the Court is now
concerned; if one regarded them as abstract points, one would be amazed at
their having been asked.
But the request is not content with indirectly transmitting a dispute
between Member States and States which are not [p87] members to the Court,
against the will of some of the parties. It goes further and attempts to
attribute material effects to the opinion.
17. Thus, the Assembly lays down that, if the Court replies in the
affirmative to the first two Questions, a period of grace will automatically
begin to run so as to allow the recalcitrant States to make good the time
they had lost, as in a case of emendatio mora.
The Court's opinion will thus possess an enforceability sui generis somewhat
in the nature of an interdict or a writ. It is tantamount to a summons which
is addressed to the above-mentioned States without even waiting till the
requesting organ has received the Court's opinion and deliberated on it.
This Opinion will therefore produce more impressive effects than many
judgments in contentious cases. There will be a sanction, resembling a daily
fine, suspended over the heads of the States which are opposing the
application of the Treaties. And, finally, the uselessness of this formal
summons will be apparent if, for example, the Court replies in the negative
to the other questions which constitute the last links in the chain.
There is no ground for differentiating between an opinion on a State's
behaviour in the past and a ruling as to what it should be in the future. To
give a ruling on the future behaviour of a State is not different from
expressing an opinion on its conduct in the past. In any case, it would be
an infringement of the independence of States to make use of the Court in
order to give impressiveness to this minatory action.
Our recognition of the excellent intentions which no doubt inspired the
General Assembly would not justify us in ignoring such obstacles.
18. It has been contended that in the present case there is no "dispute".
But some States have maintained that the obligations assumed under a Treaty
have been discharged, whereas other States have denied it, and each group of
States is relying, against one another, on different clauses of the same
Treaties. It is therefore unquestionable that there is a dispute requiring
either settlement or an indication of the method of settlement, and that
brings the matter into the sphere of contentious cases.
To affirm the existence of a dispute in the present case is to begin to
adjudicate upon it, and therefore to recognize the competence of the Court.
It matters little that the question at issue is not the main dispute, for
there are sure to be preliminary questions which will emerge clearly and
which, as contentious matters, will be susceptible of separate adjudication.
19. The analogy with the case of Eastern Carelia is thus very striking, for
there again the issue was not the merits of the dispute, [p88] but a
preliminary question which, while necessarily affecting the examination of
the case and the final settlement, did not, strictly speaking, as was
pointed out at the time, prejudge the substance of the dispute.
A similar situation was observed in the advisory case concerning the decrees
promulgated in Tunis and Morocco ; in that case the preference expressed by
the Court in connexion with a question— which, though preliminary, was of a
pivotal character—did not prevent the subsequent direct settlement of the
case.
In the present case, we have precisely the same situation ; for a decision
as to the method to be adopted constitutes by itself a pivotal point, and
will exercise considerable influence on the course to be followed in
examining and settling the case, especially as regards the determination of
the national or international character of the question concerning human
rights.
20. I now come to my conclusion in regard to the obstacle with which the
Court is confronted and which should lead it to conclude that it must
abstain from giving an answer.
As was the case in 1923, the point which must primarily be borne in mind is
that the Court cannot abandon the fundamental rules of international law in
order to favour an indirect action designed to settle a dispute actually
pending by way of a Request for an Advisory Opinion.
A large measure of flexibility is admissible in seeking the consent of the
parties ; but this consent cannot be dispensed with altogether when the
Court is confronted with a dispute actually pending. Similarly, one may
acknowledge the duty of reasonable co-operation with the other organs of
the United Nations and go so far as to give opinions which, though couched
in abstract terms, may be seen on 'closer inspection to be more or less
indirectly connected with specific disputes ; but that would not justify the
delivery of opinions relating to disputes which are explicitly indicated or
mentioned either in the text of the questions or in the preamble which
usually precedes the questions.
To sum. up, we must build a wall between the contentious and the advisory
functions. The latter should preferably bear a resemblance to the
impersonal action of a Public Prosecutor when he is acting solely in the
interests of the law.
To abandon these elementary precautions would be to ignore the decisive
refusal of the States to accept any rule of compulsory jurisdiction.
We must be content to wait until the Court is regularly entrusted with that
duty which, no doubt, it will some day have to discharge. But Our abstention
in the present case would provide an additional means of convincing the
Associated Powers of the need of the earliest possible attainment of so
desirable a result.
(Signed) Philadelpho Azevedo. [p89]
DISSENTING OPINION OF JUDGE WINIARSKI
[Translation]
I was, and remain, profoundly convinced that the Court should not have given
the Opinion requested of it by the General Assembly ; it is my duty to Say
why.
I. From the very beginning of the activities of the Permanent Court of
International Justice, serious doubts and grave preoccupations arose
concerning its advisory functions which were an innovation in the field of
international jurisdiction introduced by Article 14 of the Covenant of the
League of Nations. The important problem which the Court had to solve was to
reconcile its advisory functions with its character as a court of justice, a
judicial and independent organ of international law. Two dangers were to be
avoided : on the one hand if its opinions were not invested with guarantees
of thorough examination and objectivity they would run the risk of being
regarded as mere legal utterances with no other authority than that of the
names of their authors ; and during the debate on the first Rules of Court
(1922), Judge J. B. Moore said, rightly : "If the opinions are treated as
mere utterances and freely discarded, they will inevitably bring the Court
into disrepute." On the other hand, the danger existed of introducing
compulsory jurisdiction through the indirect channel of advisory opinions.
Article 14 of the Covenant gave the Court the power to give an advisory
opinion upon any dispute or question referred to it by the Council or by the
Assembly. In giving an advisory opinion on a legal question relating to a
dispute actually existing between States, the Court would pronounce in fact,
if not in law, upon the dispute itself for which, however, the party had not
accepted its jurisdiction.
Hence the Permanent Court, from the very beginning of its activity, decided
to ward off this double danger by investing the exercise of its advisory
functions with judicial forms and guarantees. The famous case of Eastern
Carelia (Opinion No. 5, 1923) permitted it to express in this connexion
considerations which led it to refuse to give the Opinion which the Council
had requested. The Permanent Court, which was then bound neither by texts
nor by precedents, thus showed that it did not intend to be merely the
adviser, ad nutum advocabilis, of the Council or of the Assembly ; that it
remained a court of justice, even when examining a request for opinion,
acting in a judicial manner and respecting the principles of procedure, and
above all, having a clear vision of the prospects open to its advisory
action, of the advantages and dangers of this innovation. It felt that it
was bound by principles and by the high conception it had of its Opinions.
[p90]
Since then, the advisory procedure has developed in so far as the texts
which regulate it are concerned : the Rules as revised in 1926 and 1927, the
Statute as revised in 1929, and finally, the Rules as revised in 1936, show
the different stages in this development, which all tend in the same
direction : first convergence, then substantial assimilation of the two
procedures ; and the assimilation is almost complete in cases which refer to
disputes which have actually arisen between two or more States. There is
nothing arbitrary about this assimilation : the Committee of Jurists which
was entrusted in 1920 with the elaboration of the Statute of the Permanent
Court, clearly understood the difference between a legal question considered
in abstracto and a dispute which might be settled by advisory procedure
almost as much as by contentious procedure. Later, disputes of this kind
were referred to the Court for advisory opinion by a political organ upon
the initiative of the parties, and use has even been made of the term
advisory arbitration, a new and interesting form of peaceful settlement of
international disputes. It is the similarity in the two situations which
determines the similarity in the procedure.
The principles respected by the Permanent Court were of two kinds ; first,
principles of procedure: the rule audiatur et altera pars and the equality
of parties before the judge. At the Conference of 1929, a voice of authority
(that of M. Fromageot, who later in the same year was elected as a judge of
the P.C.I.J.) gave the following explanation of the revised Article 68 of
the Statute: "It would be quite useless to give an advisory opinion after
hearing only one side. For the opinion to be useful both parties must be
heard. It is therefore quite natural to lay down in the Statute of the Court
that, in regard to advisory opinions, the Court should proceed in all
respects in the same way as in contentious cases." The Conference did not
fail to show that it attached great importance to this explanation, and
transmitted it to the Assembly.
Finally, and above the principles of judicial procedure, is the principle of
international law according to which "no State can, without its consent, be
compelled to submit its disputes with other States either to mediation or to
arbitration, or to any other kind of pacific settlement" (Opinion No. 5) ;
this is the principle of the independence of States expressed in the adage
of old Polish law : nihil de nobis sine nobis. The attitude of the Permanent
Court found confirmation in the Final Act of the Conference of States
signatories to the Statute of the Permanent Court (1926), in respect of the
second part of the fifth reservation of the United States of America, which
was as follows : "The Court shall not, without the consent of the United
States, entertain any request for an advisory opinion touching any dispute
or question in which the United States has or claims an interest." In reply,
the Final Act merely referred to the practice of the Court: "This
jurisprudence, as formulated in Advisory Opinion No. 5 (Eastern Carelia), [p91] given on 23rd July, 1923, seems to meet the desire of the United
States." There is nothing to show that the Permanent Court ever departed
from the principles laid down in Opinion No. 5.
The International Court of Justice cannot disregard the advisory practice of
the old Court, which was so firmly established and accepted by international
jurists as well-founded. The texts which regulate its advisory functions
show that its powers and duties in this connexion have remained
substantially the same; and if Article 65 of the Statute, in accordance with
Article 96 of the Charter, has abandoned the distinction between "a
question" and "a dispute", and refers to "any legal question", the
difference is so much in the nature of things that Article 68 of the Statute
has not been modified and Article 82 of the Rules of Court, in its new
version, continues to point in the same direction : "The Court shall above
all consider whether the request for the advisory opinion relates to a legal
question actually pending between two or more States", and, if so, will
apply the provisions of the Statute and of the Rules concerning contentious
proceedings. It is true that the two texts add: "to the extent to which it
recognizes them to be applicable", but there is nothing arbitrary about the
Court's power in this matter; the criterion is objective: if the Court
considers that such is the case, it .must apply these provisions.
Though assimilated to contentious procedure, advisory procedure nevertheless
maintains its own characteristics and cannot be identified with the former.
Thus the parties to the dispute which has given rise to the Request for an
Opinion, are regarded only as interested States although they may be
authorized to designate judges ad hoc. Further, the Court is bound by the
questions put to it in the Request for an Opinion and is not bound by the
submissions of the parties, although these submissions lose none of their
importance in determining the position of the parties.
The Committee of the Permanent Court which prepared the revision of the
Rules in 1927 (application of Article 31 of the Statute to advisory
opinions) stated in its report: "The Court, in the exercise of this power,
deliberately and advisedly assimilated its advisory procedure to its
contentious procedure ; and the results have abundantly justified its
action. Such prestige as the Court to-day enjoys as a judicial tribunal is
largely due to the amount of this advisory business and the judicial way in
which it has dealt with such business."
The doctrine of the Permanent Court is perfectly logical. Opinions are not
formally binding on States nor on the organ which requests them, they do not
have the authority of res judicata ; but the Court must, in view of its high
mission, attribute to them great legal value and a moral authority. This
being the case and if tantum valet [p92] auctoritas quantum valet ratio,
the Court, as a judicial organ, will surround itself with every guarantee to
ensure thorough and impartial examination of the question. For the same
reason, States see their rights, their political interests and sometimes
their moral position affected by an opinion of the Court, and their disputes
are in fact settled by the answer which is given to a question relating to
them, which may be a "key question" of the dispute. This explains the
interest States have in being heard in advisory proceedings, in being
represented and being permitted to designate their national judges, which
would be perfectly useless if advisory opinions were mere utterances having
no real importance in respect of their rights and interests. This is also
why the Permanent Court did not hesitate to grant States the necessary
guarantees, and, in order to exclude any possibility of introducing
compulsory jurisdiction by the circuitous means of its advisory opinions,
it deliberately laid down in Opinion No. 5 the principle of the consent of
the parties (Article 36 of the Statute).
The Court must, therefore, consider each request for opinion from the point
of view of principles from which as a judicial tribunal it cannot depart:
audiatur et altera pars, the equality of States before the judge, the
independence of States. It has no doubt the duty to give the opinions which
are requested of it, for this is one of the two purposes for which it has
been constituted ; but there may be important legal grounds for not giving
an opinion, for example, respect for the principles which I have just
recalled, or situations involving facts which make it impossible for the
Court to give an opinion ; in such exceptional cases, the Court cannot
deliver an opinion, and the texts contemplate this possibility as has been
pointed out in the present Opinion.
Is the Court now confronted with such a case ?
2. First, do international disputes exist to which the present Request for
Opinion relates ? This has been proved and a. great number of arguments have
been marshalled in support of this contention ; the Court is asked to say
that such disputes exist, and that they refer to the interpretation and
execution of the Peace Treaties. Only three of the eleven recitals of the
Resolution of the General Assembly of 22nd October, 1949, mention human
rights, eight mention the Peace Treaties and the disputes which have arisen
in respect of these Treaties. It is stated under No. 3 of the conclusions of
the representative of the British Government that: "This dispute relates
principally to the question whether the three Governments are or are not in
breach of the human rights provisions of the relevant Peace Treaties ....
and the obligation to set up a Commission under the Peace Treaty provisions
for the settlement of disputes .... there is therefore a dispute about both
the interpretation and the execution of the Treaties." And, under No. 5 :
"The United King-[p93]dom is asserting its own rights under the Peace
Treaties and claiming the fulfilment towards itself of the Treaty articles."
Therefore : there is more than a legal question actually pending between two
or more States ; real disputes exist. This is manifest, and I find no
difficulty in answering the first part of Question I in the affirmative.
But, if this is so, it is also evident that the Request referred to the
Court not only relates to these disputes ; the Request goes to the very core
of the disputes. The Assembly could discuss a "situation" existing in
Bulgaria, Hungary and Romania concerning human rights, and it actually
discussed this question at its Third Session ; since then the discussion has
centered about Peace Treaties ; the diplomatic exchanges between the United
States and the United Kingdom on the one hand and Bulgaria, Hungary and
Romania on the other, also referred to the Peace Treaties. The four
questions put to the Court all refer to the Peace Treaties. I should not
hesitate to answer in the affirmative the question whether these are
disputes for which the arbitration clauses of the Peace Treaties provide
settlement procedure ; but here the Court enters the field of the
interpretation of Treaties, and in my opinion it must refrain from giving an
answer. The Court must not answer even a very simple question, one which any
jurist could answer without difficulty, because the Court could do so only
in conditions which are not fulfilled here.
I am taking Question II in its limited meaning in accordance with the
restricted interpretation given in the Opinion. What is asked of the Court ?
The Question does not refer to the human rights articles. A new, more
limited dispute, referring to the interpretation and execution of the
arbitration clauses, has arisen between the contracting States. It has been
said that this is only an introductory question, a preliminary question, or
a question of procedure. Question II may be an introductory or preliminary
question in so far as the General Assembly is concerned, if the Assembly
contemplates taking subsequent political action on the basis of the Court's
answer, but this is not the legal or technical meaning of this term. Nor is
it a question of procedure, although it does refer to the method of settling
disputes concerning, the interpretation and execution of the Peace Treaties.
It is a question of substance ; not in respect of human rights, but of the
arbitration clauses.
Question II is not put in abstracto, in view of a situation which might
arise some day ; it has emerged out of long debate. The fact is that the
three States have refused to appoint their representatives to the Treaty
Commissions, in spite of the demands of their co-signatories. This refusal
was discussed by the General Assembly and embodied in recital No. 9 ("have
refused .... maintaining that they were under no legal obligation to do
so"). If the General Assembly asks the Court: "are they obligated
[p94] to
carry out", this question refers to the merits of the dispute concerning the
execution of the arbitration clauses. The Assembly asks the Court to Say
whether the three States were right or wrong to refuse.
It has been said that if the Court were called upon to appraise the conduct
of the three States, then the opinion would be equal to a judgment and a
judgment delivered without the consent of the interested parties ; and in
such a case, the Court should not give its opinion. Actually, such a
condemnation is involved if the Court says that the States are wrong to
refuse to designate their representatives ; and could the Court have said
that they are right ?
To say that they are obligated, whereas they denied that they were under any
legal obligation to do so, means that the Court is pronouncing on the
interpretation and application of the jurisdictional clauses of the Peace
Treaties, and this in the first place is the prerogative of the high
contracting parties themselves ; the Court could not do so without their
consent or, at least as a general rule, without their participation. The
Court heard the interpretation and the conclusions of the United States and
the United Kingdom ; it did not hear statements by the three States.
Finally, the Court should. not have ruled out the possibility of the three
States submitting a valid excuse for their conduct. The fact is that they
have refused to carry out the provisions of the Peace Treaties which relate
to arbitration. They do not desire to carry them out. This refusal has as
its context determined circumstances and conditions ; it is a concrete case
of non-execution of Treaties (which is half-way between violation and
disregard). How can the Court say that hic et nunc the three States are
obligated to carry out the provisions ?
The refusal to carry out a certain clause of a treaty does not,
unfortunately, arise here for the first time; this happens too often. There
are also cases of legitimate refusal. Pacta sunt servanda constitutes the
fundamental de of international law and the basis of international
relations; "respect for the obligations arising from treaties and other
sources of international law" constitutes the primary duty of any State in
its relations with other States. And yet, there are cases where it is
necessary to readjust, even unilaterally, the application of the letter of
the law to a new situation, just as the municipal judge may mitigate the
excessive hardships of contracts between individuals; and there are cases in
which a State may reasonably rely upon certain circumstances to justify,
under international law, the non-execution of certain provisions of a
treaty. Such a possibility is expressed by the clausula rebus sic stantibus,
summing up the important problem of strict law and good faith between
States.[p95]
The grounds given by the three States in the diplomatic exchanges to justify
their refusal may be without value ; but could they not submit other grounds
and what might be the legal value of such grounds? Of this the Court knows
nothing. In the circumstances, it seems to me that it is impossible for a
court of justice to establish or determine the obligations of these States.
It is not necessary to discuss the remark which has been made, namely, that
the three States have only to appoint their Commissioners and that the
Commissions would pronounce on whether the charges preferred against them
are well-founded. This is a misunderstanding : Question II asks the Court to
Say whether they are justified in refusing to appoint their Commissioners.
3. It has been said that the Court possesses all the facts in the case
inasmuch as the three Governments in their notes said all that the Court
needs to know before pronouncing. I cannot accept this argument. These notes
have been put in by the opposite side as information and have solely the
value of information. But the Court needs more than mere information,
however complete it may be. What the parties said or have to say, must be
said before the Court in proceedings which, though not contentious, do,
nevertheless, call for the presentation from both sides of argument,
declarations, objections, proof and submissions. Since this is impossible
for the simple reason that the three Governments have refused to appear, the
Court finds itself materially prevented from giving an opinion under the
conditions laid down in its Statute and Rules.
If it is true that each case must be examined and decided in view of its
peculiar characteristics and circumstances, it is equally true that, to
individual cases, which may be infinitely varied, the same general rules and
principles must apply. Now, in the present case, not only the provisions of
the Statute and the Rules, but also the rule of equality of parties before
the judge, as well as the rule audiatur et altera pars, that is to Say, the
fundamental principles of law and justice, would be disregarded, if the
Court gave an opinion in the present conditions.
It might be objected that the three Governments were perfectly free to
submit their arguments and evidence to the Court and that if they did not do
so it was because they did not choose to avail themselves of the opportunity
which was offered to them, and that consequently, the principle of equality
has been respected. During the hearings, one of the representatives went so
far as to rely on Article 53 of the Statute, which provides that whenever
one of the parties does not appear before the Court, the other party may
call upon the Court to decide in favour of its claim. However incredible
this may appear to be, it was stated that the [p96] Court can apply the
rule of Article 53 to the present case by analogy. What is forgotten is that
Article 53 refers to a case in which the Court has been validly seized by
virtue of consent previously given by the party in default.
In the present case, the three States never gave their consent. The
Resolution of the General Assembly of 22nd October may have constituted an
offer : if this offer had been accepted by the three Governments, we might
have been confronted by a case analogous to that of the forum prorogaturn ;
but nothing of the kind occurred. Thus, another fundamental principle of
inter-national law makes it impossible for the Court to give its opinion in
the present case : the principle of the independence of States. A
jurisdiction, in our case the jurisdiction of the Court, even though it is
exercising its advisory functions, cannot be imposed upon a State if that
State has not given its consent freely and beforehand. In accordance with
this principle, the authors of the Charter of the United Nations rejected
not only the compulsory jurisdiction of the Court, but any jurisdiction
whatever without the consent of the interested States—and this applies to
Members of the United Nations. Nothing would be more alien or even
contradictory to this idea, which is one of the bases of the Charter, than
to introduce the compulsory jurisdiction of the Court under the guise of
advisory opinions. This possibility, however, was considered as early as
1920 as a danger which might arise in a given case ; the Permanent Court was
deeply concerned with eliminating such a danger.
The Permanent Court attached no importance to the form in which consent to
its jurisdiction was given ; this could be effected merely per facta
concludentia. But the three States have not accepted the jurisdiction of the
Court in any form. Even more : the Peace Conference of 1946 had inserted a
clause into the Peace Treaties providing for the jurisdiction of the
International Court of Justice in the settlement of disputes concerning the
interpretation and application of these Treaties ; by a decision of the
Foreign Ministers of the Allied Powers, this clause was deleted and was
replaced by a clause providing for arbitration by Commissions to be set up
for this purpose. Thus the Court was deliberately ruled out and its
jurisdiction excluded, unless the high contracting parties should decide in
common agreement to refer a certain case to it.
In respect of the interpretation and execution of the human rights articles
and the arbitration clause, the three Governments may be at fault; here, on
the particular point of the Court's jurisdiction, they are right.
4. During the oral proceedings, it was said that a State, however directly
interested it may be, cannot interfere with relations [p97] between organs
of the United Nations and frustrate the desire of the General Assembly to
request an advisory opinion of the Court.
It sometimes happens in domestic law that the most certain and indisputable
subjective rights cannot obtain judicial protection because a rule of
procedure, for example, a rule providing the period fixed for the exercise
of some remedy has elapsed and the party is in default. This is inevitable,
for behind the rules of procedure is a general interest of such importance
that it overrides what may be very legitimate and very important particular
interests. The same considerations apply to international procedure which
is, however, much less severe. But what we have here is a much simpler case.
If the opposition of a State can block the desire of the Assembly to obtain
an opinion from the Court, it is because this opposition is grounded in law
; if, following the opposition of an interested State, the Court recognizes
that it cannot deliver an opinion, it is because it has not the right to
deliver it in such a case. In both cases, it is not the arbitrary action of
an interested State that makes it impossible to deliver an opinion, but
rather its will, which has the law on its side, provided the Court
recognizes it.
To my regret, I cannot agree that the advisory functions of the Court are
exercised between the Court on the one hand and the Assembly, the Security
Council and other authorized organs on the other. In Our case it is for the
Assembly to take action on behalf of the Nations after having heard the
opinion of the Court. The Request for Opinion is made publicly, the Opinion
is delivered in public after proceedings which are public ; the Opinion is
given to the organ from which the Request emanated, but is addressed to the
parties, to the Organization, and to public opinion. The General Assembly
has its own sphere of action, which is political, and its own
responsibilities; the Court too has its sphere of action which is legal, and
the limits of the field to which this action may be applied, as well as the
method of application, are rigidly laid down ; and the Court has its own
responsibility which cannot disappear behind that of the Assembly.
(Signed) B. Winiarski. [p98]
DISSENTING OPINION BY JUDGE ZORICIC
[Translation]
I am in entire agreement with the Court's opinion that matters concerning
the observance of human rights certainly do not fall within the ambit of the
Questions contained in the Request for an Opinion. Similarly, I agree that
the objection to the Court's jurisdiction, raised by several States, and
which is based on the argument that the Questions put to the Court relate to
a subject falling exclusively within the domestic jurisdiction of the State
(Article 2, paragraph 7, of the Charter), is ill-founded and cannot be
upheld.
What prevents me, to my regret, from agreeing with the majority of the Court
is entirely a question of principle. In my view, the Court should have
declared that it was unable to answer the Questions put to it, for the
reasons which follow :
The Questions put to the Court are worded as follows :
"1. Do the diplomatic exchanges between Bulgaria, Hungary and Romania on the
one hand and certain Allied and Associated Powers signatories to the
Treaties of Peace on the other, concerning the implementation of Article 2
of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with
Romania, disclose disputes subject to the provisions for the settlement of
disputes contained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty
of Peace with Romania ?
II. Are the Governments of Bulgaria, Hungary and Romania obligated to carry
out the provisions of the articles referred to in question 1, including the
provisions for the appointment of their representatives to the Treaty
Commissions ?"
In Question 1, the Court is asked to give its opinion in the first place as
to the existence of a dispute, which is a simple issue of fact, and, next,
on the question whether that dispute is to be regarded as a dispute subject
to the provisions of Articles 36, 38 and 40, respectively, of the Treaties
of Peace with Bulgaria, Romania and Hungary; that is a question of law.
Question II is entirely a question of law relating to the existence of an
international obligation for Bulgaria, Romania and Hungary to execute
Articles 36, 38 and 40 of the Peace Treaties and in particular to appoint
their representatives to the Commissions provided for in those articles. [p99]
The documentation submitted to the Court shows that a divergence of views
between the United States of America and the United Kingdom, on the one
hand, and Hungary, Romania and Bulgaria, on the other hand, concerning the
application of the Treaty provisions relating to human rights, gave rise to
another dispute, the subject of which, and its fundamental issue, is not
only whether a dispute does or does not exist, but whether a dispute exists
of such a nature that the procedural clauses of the Peace Treaties are
applicable to it.
Such a development, in which an original dispute gives rise to a second, a
third, and other disputes, is not a novel feature in international affairs.
It cannot, however, be maintained that, from a legal point of view, the
original dispute is of greater importance than those to which it gives rise.
In each of the subsequent disputes the States which are in dispute may adopt
legal positions independently of their attitude in regard to the original
dispute ; the solution of each of them produces effects of its own, and the
States concerned are the only judges of the importance—to them—of the
solution reached.
It is beyond question that, in this case, the Request for an Advisory
Opinion relates to a dispute between States, and it is common ground that it
is not concerned with the dispute about the observance of human rights. On
the contrary, Question I asks the Court to give its opinion on a new dispute
which concerns the applicability of the procedural clauses of the Peace
Treaties. The subject-matter of this new dispute is thus clearly something
independent of the former dispute relating to the observance of human
rights. In order to be in a position to answer this Question, the Court must
undertake the interpretation of Articles 36, 38 and 40 of the Peace
Treaties. The fact that such an interpretation may be very simple and very
easy has no relevance whatever from the standpoint of the principle
involved. In any case, the Court's reply necessarily deals with the
essential issue of the present dispute, and, whether that reply be in the
affirmative or in the negative, it cannot avoid settling the merits of the
dispute, or, in other words, deciding the sole question now in dispute,
namely the applicability of Articles 36, 38 and 40 of the Peace Treaties.
Accordingly, this dispute is definitively settled by the Opinion and the
legal relations between the States in dispute are, so far as concerns that
question, decided by the authority of the Court. In other words : Question I
has transferred to the Court the actual decision of the dispute between the
parties, and the Court, by its Opinion, has pronounced upon the
international obligations of Bulgaria, Hungary and Romania, although those
States had not given their consent to the proceedings before the Court.
Now, it is a fundamental rule of international law that no State can be
compelled to submit its disputes with other States to any procedure,
judicial or otherwise, without its consent. That legal rule [p100] is
founded on the principle of the sovereign equality of States, a principle
which is the corollary of independence and which is expressly recognized by
the Charter of the United Nations (paragraph I of Article 2).
The considerations which follow are designed to show that this rule applies
not only to the Court's Judgments but also to its Advisory Opinions.
***
The Statute and the Rules of Court show that this Court's advisory function
is a continuance of the advisory function of the Permanent Court of
International Justice (hereinafter called the P.C.I.J.). Consequently, and
having regard to the fact that the provisions of the Statute and the Rules
of the present Court are essentially the same as those of the Statute and
Rules of the former Court, it follows that these provisions may be applied
in the light of the experience and practice of the P.C.I.J.
It will suffice to explain briefly that the P.C.I. J. had, at the outset,
considered the States interested in Advisory Opinions simply as furnishing
information, but it very soon perceived that the position of the States was
substantially different in cases where an Advisory Opinion related to a
dispute actually existing between States. It was impossible not to admit
that, in such cases, the States in dispute were really parties before the
Court and that they must be given a position similar to that of parties in a
contentious case. Consequently, the Rules of Court were adapted to this need
and, when the Statute was revised, a new Article 68 was introduced laying
down that the provisions of the Statute relating to contentious cases were
to be applied to the extent to which the Court recognized them as
applicable.
Article 68, which was inserted bodily in the present Court's Statute, is of
great importance in determining the position of States engaged in a dispute
which is brought before the Court by way of a Request for an Advisory
Opinion. In that connexion, it should be noted that Article 68 of the
Statute has an imperative character. It is true that the Court has power to
examine whether or not certain provisions governing contentious cases are
applicable in a given case ; but applicability is an objective criterion,
and if the Court finds that a clause is applicable, it is obliged to apply
it. That is made clear, not only by the actual words of Article 68, but also
by the very clear and express explanations that were given on the occasion
of the revision of the Court's Statute in the report by the Jurists'
Committee of the League of Nations (LN. C/166/M/66. 1929. V, p. 117), and in
the letter sent to the President of the Assembly by the President of the
Conference of States signatories of the Statute (L.N. C/154/M/173. 1929. V,
p. 79).
In view of these facts, it seems to me beyond doubt that the position of
States in dispute is, even in advisory matters, the same [p101] as that of
parties before the Court. They have an indisputable right to submit
statements, to furnish and to demand evidence, to dispute the allegations of
the opposing party, and they are even entitled to have a judge on the bench
(Article S3 of the Rules of Court). It follows that a request for an opinion
cannot be regarded as giving rise solely to a relation between the Court and
the international organ which asks for the Opinion, but that, on the
contrary, in addition to that relation, other relations may be established
first, between the Court and the parties, and, again, between the parties
themselves. (Cf. Negulesco : "L'évolution de la procédure des avis
consultatifs de la C. P. J. I.", Recueil des Cours, Vol. 57.)
***
The position of States in dispute being thus established, in my view, as
that of parties before the Court, it is desirable to examine the effects
which an advisory opinion relating to a legal question actually pending
between States (Article 52 of the Rules of Court) may produce upon the said
States.
It is clear that an advisory opinion is, in its legal nature, different from
a judgment. In a judgment, which is always the result of a contentious case,
the Court decides all the issues in dispute, the judgment is unappealable
and becomes res judicata, so that the rights and obligations of the States
are legally and definitively established.
Advisory opinions, on the other hand, are given at the request of an
international organ authorized to ask for them ; the Court gives its answer
to the questions put to it, but the opinion possesses no binding force.
This is certainly the difference between a judgment and an advisory opinion,
regarded from a formal and strictly legal point of view. In actual life,
however, the matter often assumes a very different aspect and it may be
said that, in practice, an advisory opinion given by the Court in regard to
a dispute between States is nothing else than an unenforceable judgment. The
first reason is that, in such a case, the procedure normally follows the
same course as in an actual contentious case. The States parties to the
dispute submit written and oral statements, the case is argued in open
Court, the full Court deliberates, the national judges take part in the
deliberations of the Court and in the voting and, finally, the opinion is
read out at a public sitting and printed in the Court's publications exactly
in the same way as a judgment.
Secondly, the Court's advisory opinions enjoy the same authority as its
judgments, and are cited by jurists who attribute the same importance to
them as to judgments. The Court itself refers to its previous advisory
opinions in the same way as to its judgments.
Thirdly, an advisory opinion which is concerned with a dispute between
States from a legal point of view amounts to a definitive [p102] decision
upon the existence or non-existence of the legal relations, which is the
subject of the dispute. It follows that the opinion cannot fail to exercise
very great influence on the respective legal positions of the States, all
the more so because the opinion may be used as a means of psychological
pressure upon the governments of the States concerned.
It is for these very reasons that States have always objected to their
cases, their disputes, the positions they have adopted and the interests
thereby involved being discussed and decided by a court of justice without
their consent. It will suffice in this connexion to refer to the fifth
reservation of the United States of America in regard to the accession of
the United States to the Protocol of Signature of the Statute of the
P.C.I.J. It was worded as follows :
“.... Nor shall it [the Court] without the consent of the United States
entertain any request for an advisory opinion touching any dispute or
question in which the United States has or claims an interest." (L.N.
C/166/M/66. 1929. V, p. 97.)
That reservation by the United States was in accord with a precedent of the
highest importance, namely the reply given by the P.C.I.J in the Eastern
Carelia case. It seems worth while to refer briefly to that reply as the
legal rules which it lays down are of special interest in the present case.
***
Having received a Request for an Opinion on a dispute between Finland and
Russia concerning the interpretation of certain clauses, and being
confronted by a refusal on the part of Russia to consent to the proceedings,
the P.C.I.J. declared that it is :
".... well established in international law that no State can, without its
consent, be compelled to submit its disputes with other States either to
mediation or to arbitration or any other kind of pacific settlement".
After going on to mention the possible circumstances in which consent may be
given, the P.C.I.J. concluded :
"Such consent, however, has never been given by Russia. On the contrary,
Russia has, on several occasions, declared that it accepts no intervention
by the League of Nations in the dispute with Finland. The refusals which
Russia had already opposed to the steps suggested by the Council have been
renewed upon the receipt by it of the notification of the request for an
advisory opinion. The Court therefore finds it impossible to give its
opinion on a dispute of this kind." (Series B, No. 5, p. 28.)
From the last statement, which I have underlined, it is clearly apparent
that the above-mentioned rule of international law [p103] sufficed, by
itself, to enable the P.C.I.J. to say that it found it impossible to give an
answer. It is true that the Court gave "other cogent reasons", but these are
only supplementary reasons which are mentioned in order to strengthen, by
considerations of practical expediency, a decision which was already
well-founded on the legal rule that was decisive in the case.
The precedent of Eastern Carelia constitutes, in my view, a convincing
proof that the consent of the States is necessary, not only in regard to
contentious cases, but also in advisory cases where the request for the
opinion relates to a dispute between States, so that the answer of the Court
would decide the issue that is the subject of the dispute.
It is also necessary to emphasize the fact that the P.C.I.J. gave that
decision in the Eastern Carelia case, in spite of the fact that, at that
time, there was no rule in existence compelling it to apply the provisions
of the Statute applicable to contentious cases. On the contrary, it was
actually as a result of that decision, which was generally admitted to be
sound, that Article 68 of the Statute was subsequently introduced : "thus
establishing in such a way as to protect against any disposition to change
it, even on the part of the Court, the doctrine which inspired its reply in
the Eastern Carelia case". (Hammarskjöld : Juridiction internationale, "in
memoriam", I.eyden, 1938, p. 285.)
The present case offers a striking analogy to the Eastern Carelia case. To
begin with, in the present case, the subject-matter of the Advisory Opinion
is also the interpretation of a treaty and the existence of certain
international obligations arising under that treaty, so that the Court's
answer is substantially equivalent to deciding the dispute between the
parties which is now before the Court ; secondly, in both cases, one of the
parties to the dispute refused to take part in the debates in the
international organization which subsequently requested the Opinion.
Thirdly, in both cases. one of the parties is not a member of the
international Organization and, finally, one of the parties to the dispute
contests the right of the Court to give an Opinion in the case without its
consent.
Very naturally, this analogy did not escape the notice of the parties who
appeared before the Court, and they were at special pains to show that the
theory based on that precedent \vas not applicable to the present case
because, in the first place, the present dispute merely related to the
clauses of the Peace Treaties concerning certain procedure and not to the
disputes about human rights which gave rise to the first difference of
opinion; and, secondly—as they contended—because the Court is not obliged to
adhere to precedents.
I am unable to agree with these views.
From a legal standpoint, any dispute between States must be treated as such,
without regard to the degree of practical importance [p104] which the
solution of the dispute may present—that being, moreover, a matter of which
those States are the best judges. The States are entitled to maintain the
legal positions—whether good or bad— which they have adopted, and it would
evidently be very difficult to draw a line of demarcation between important
disputes and other disputes. Once a dispute occurs, no matter what its
subject, the States are entitled to insist that it should not be subjected
to any procedure for settlement without their consent.
On the other hand, it is quite true that no international court is bound by
precedents. But there is something which this Court is bound to take into
account, namely the principles of international law. If a precedent is
firmly based on such a principle, the Court cannot decide an analogous case
in a contrary sense, so long as the principle retains its value.
But the principle of the sovereign equality of States, and the rule of law
which follows from it and which was applied in the case of Eastern Carelia,
have lost nothing of their value. The great majority of States have
consistently opposed any kind of obligatory jurisdiction. The Court should
not therefore, in my opinion, allow disputes between States to be submitted
to it in an indirect fashion by way of requests for an advisory opinion. In
regard to that point, the reasons and the needs of the organ which requested
the Opinion cannot be brought into account, for, as the P.C.I.J. stated in
the above-quoted case :
"The Court, being a Court of Justice, cannot, even in giving advisory
opinions, depart from the essential rules guiding its activity as a court."
The Court should therefore, in my opinion, avail itself of the discretionary
power conferred on it by Article 65 of its Statute and state that it finds
it impossible to give an Opinion on the two Questions.
(Signed) Zoričic. [p105]
DISSENTING OPINION BY JUDGE KRYLOV
[Translation]
1. Analysis of the Request for Opinion of October 22nd, 1949.
I appreciate the fact that in its Advisory Opinion the Court has shown its
intention of making it clear that it was not called upon to Say whether
Bulgaria, Hungary and Romania had performed the Treaty clauses on human
rights and fundamental freedoms.
But I have to consider that the second Question of the Request for Opinion
asks the Court to reply on the following point : are the Governments of
Bulgaria, Hungary and Romania "obligated to carry out the provisions of the
articles referred to in Question 1 ?"
Question 1 not only refers to Article 36 of the Peace Treaty with Bulgaria
and the corresponding articles of the two other Treaties, but also to
Article 2 of the Treaties with Bulgaria and Hungary, and Article 3 of the
Peace Treaty with Romania.
The wording of both questions shows, therefore, that the Assembly has asked
the Court to consider the dispute which has arisen not only in connexion
with the so-called "performance" clauses, but also in connexion with
Articles 2 and 3 of the said Treaties for the safeguard of human rights and
fundamental freedoms.
This view is supported further by the "recitals" of the Resolution of the
General Assembly of October 22nd, 1949 ; the very first recital quotes
Article 55 of the Charter in favour of universal respect and observance of
human rights and fundamental freedoms. The following recitals of the
Resolution. make it evident that the General Assembly had "increased
concern" at the "accusations" based on alleged violations of human rights
and fundamental freedoms in the three States mentioned above.
In the course of argument before the Court, stress was laid on the will of
the United Kingdom and the United States Governments to examine the rules
concerning human rights in the three States of the People's Democracy (vide
principally item 3 of the "formal submissions" of the United Kingdom
representative).
The Court itself considers in this Opinion that it has before it "the
disputes relating to the question of the performance or non-performance of
the obligations provided in the articles dealing with human rights and
fundamental freedoms".
This being so, I cannot share the opinion of the Court that the legal
position of Bulgaria, Hungary and Romania ' "cannot be in any way
compromised" by the answers that the Court has decided to give and that the
Opinion "in no way prejudges" the decisions that may be taken on the present
disputes. [p106]
II. Legal nature of advisory opinions and the two types of opinion.
If one remains on the surface and limits oneself to dogmatic analysis of the
Statute and the Rules of Court, one is inclined to find a considerable
difference between the competence of the Court in contentious cases and in
the exercise of its advisory function.
I do not deny the difference in the least. But, as will appear further on,
it should not be overestimated. One must take into account the tendency of
the two functions of the Court to get closer —the jurisdictional and the
advisory. This progressive assimilation may be seen, and has been noted, by
several eminent authors (e.g. Mr. Charles De Visscher, Recueil des Cours de
l'Académie de Droit international, 1929, Vol. 26), in a study of the
activity of the Permanent Court of International Justice.
I shall deal later on with Advisory Opinion No. 5 of the Permanent Court of
International Justice on the status of Eastern Carelia. But I shall now
quote one of the assertions made by the Court in that Opinion :
"The Court, being a Court of Justice, cannot, even in giving advisory
-opinions, depart from the essential rules guiding their activity as a
Court."
This statement of principle was later reproduced and incorporated in the
Statute of the Court and in the Rules of 1936, as well as in the Statute and
the Rules of the present Court.
Article 68 of the present Statute says that: "In the exercise of its
advisory functions, the Court shall .... be guided by the provisions of the
present Statute which apply in contentious cases." The same article adds :
“to the extent to which it recognizes them to be applicable". The latter
sentence is perfectly understandable, but in no way changes the meaning of
the principle set forth in the article.
Article 82 of the Rules paraphrases the above provision of Article 68 of the
Statute and adds the following provision :
".... for this purpose it [the Court] shall above all consider whether the
request for the advisory opinion relates to a legal question actually
pending between two or more States".
I observe that there are two kinds of advisory opinions :
(1) advisory opinions which do not deal with a legal question actually
pending between two or more States ;
(2) advisory opinions dealing with such a question.
These last opinions are referred to in Article 83 of the Rules of Court.
Under that article, if the advisory opinion is requested in connexion with a
legal question "actually pending between two or more States", the Court
shall apply Article 31 of the Statute [p107] on ad hoc judges and the
appropriate provisions of the Rules.
The States referred to in Article 83 of the Rules may be defined as States
divided by the existence of a legal question "actually pending between
them", namely as States concerned in the decision which the Court shall take
in the matter. They are not, so to speak, party-States, as they exist in
contentious cases.
They may simply be called the States concerned. This is why Article 83 gives
them the right to designate the judge This last provision presupposes that
the State concerned consents to take part in the preparation of the opinion,
as a consequence of the designation by it of an ad hoc judge.
As to the opinions which do not deal with a legal question actually pending
between States, the Court is free to give them without the consent of any
State whatever. As a rule, such questions are of a general nature and cannot
affect the rights of a State. If any State should appear before the Court in
such a case, this action is taken for the purpose of assisting the Court, of
giving to the Court the necessary information, etc. In that case, the State
appears not as a "party" but as an "informateur" of the Court.
The existence of these two kinds of opinions must be noted and evens
tressed. In one case, the State is a mere informateur, in the other the
position of the State is more akin to that of a party-State in a contentious
case.
By disregarding this distinction, by overlooking the true nature of the
position of a State, the consent of which is necessary to permit the Court
to examine the case and give an opinion, one may frustrate the
administration of international justice, "introduce, without explicitly
saying so, more or less surreptitiously", a reply to the request which would
be tantamount to a decision in a case of compulsory jurisdiction (cf.
Opinion of seven judges in the Reports of Judgments, Advisory Opinions and
Orders of the Court 1947-1948, p. 32). In other words, the request for an
opinion would correspond to the application in a contentious case.
Such action by the Court may be compared to an abuse of power. This has been
judiciously stated by Judge Azevedo in his Individual Opinion of May z8th,
1948, in which he qualifies such action as diversion, travesty, etc. (ibid.,
p. 73).
III. Nature of the Request for Opinion of October 22nd, 1949.
There is no doubt as to the nature of the present Request for Opinion.
Two States—the United States and the United Kingdom— have appeared before
the Court to support "grave accusations" which they have made against
Bulgaria, Hungary and Romania [p108] and which have been discussed during
two sessions of the General Assembly.
The three "accused" States-—Bulgaria, Hungary and Romania — did not take
part in the discussion in the General Assembly and refused to take the
slightest part in the discussion of the Request by the Court.
Therefore, there is "a legal question actually pending" between those five
States. It is worthy of note that the representative of the United Kingdom
wound up his oral statement in Court by "formal submissions", as he would
have done in a contentious case.
In my opinion, the present request must be dealt with—in so far as
possible—as a contentious case would be.
I think that the Court could not exercise its consultative function in this
case unless the interested States, including Bulgaria,. Hungary and
Romania, had expressly consented.
This is demonstrated by the general meaning of the texts quoted and
especially by the precedent established by the P.C.I. J. on July 23rd, 1923.
IV. The principle laid down in the Eastern Carelia case and the inadequacy
of objections raised against that pinciple.
I wish now to analyze the reasons of the Permanent Court for refusing to
give an opinion (Advisory Opinion No. 5).
The Council of the League of Nations requested the Permanent Court to give
an advisory opinion on the following question : "Were there engagements of
an international character placing Russia under an obligation to Finland as
to the carrying out of the provisions of the Peace Treaty signed at Yourief
on October 14th, 1920 ?"
In its Opinion, the Permanent Court came to the conclusion that there
existed "an actual dispute between Finland and Russia''.
In the course of its argument, the Permanent Court laid stress on the fact
that the independence of States is at the basis of international law.
"It is well established in international law that no State can, without its
consent, be compelled to submit its disputes with other States either to
mediation or to arbitration, or to any other kind of pacific settlement."
(Publications of the P.C.I.J., Series B, Advisory Opinion No. 5, p. 27.)
Taking note of the fact that Russia had never consented, the Court declared
that "it finds it impossible to give its Opinion on a dispute of this kind"
(p. 28).
"The Court is aware of the fact that it is not requested to decide a
dispute, but to give an advisory opinion. This circumstance, [p109]
however, does not essentially modify the above considerations. The question
put to the Court is not one of abstract law, but concerns directly the main
point of the controversy between Finland and Russia...." (Pp. 28-29.)
And the Court concludes :
"Answering the question would be substantially equivalent to deciding the
dispute between the parties. The Court, being a Court of Justice, cannot,
even in giving advisory opinions, depart from the essential rules guiding
their activity as a Court." (P. 29.)
In my opinion, the reasons given by the Permanent Court must be adopted in
the present case. The result must be a refusal to give the requested
opinion. The principle of the independence of States is one of the
fundamental principles in international relations. It is confirmed in
Article 2, paragraph 1, of the United Nations Charter setting forth the
principle of the sovereign equality of States.
The arguments put forward against this assertion do not convince me. I shall
now review them.
(1) It has been attempted first to Say that the refusal of the Permanent
Court to answer the question in the Eastern Carelia case was due to
practical difficulties, lack of documentation, etc. That is not the case.
The text of the Opinion itself shows that the Permanent Court's refusal is
a matter of principle and not of mere opportunity. In that Opinion, the
Permanent Court marked a departure in the development of advisory opinions
see above Title II). The Court has shown that the consent of the State
concerned is necessary for the Court to give its Opinion in cases where it
has to decide on a legal question "actually pending" between States. The
Court has stated a principle of capital significance and one cannot turn a
decision of principle into a decision of circumstance.
(2) It has been said that the Court was bound to give an answer to the
request in its capacity of principal judicial organ of the United Nations,
because the request came from the General Assembly. It was even hinted that
the present Court had a lesser degree of autonomy than the Permanent Court.
I take exception to this last idea. At a meeting of the Juridical
Committee, at Dumbarton Oaks, presided over by Mr. Hackworth, the latter put
to the Russian delegation the following question : Will participation in the
Charter result in participation in the Statute of the Court ? The answer
was given in the affirmative and mutual agreement on the question
materialized in the provisions of Article 93 of the Charter : "All Members
of the United Nations are ipso facto parties to the Statute of the
International Court of Justice." This does not imply, in any way, that
[p110] this Court is less independent than the Permanent Court of
International Justice and that it is bound to answer the General
Assembly's request.
This idea is refuted, as it is noted by this Opinion of the Court, by the
very wording of Article 65 of the Statute.
The theory that the Court is obliged to answer the Request for an Opinion is
not a novelty. It was put forward thirty years ago by the critics of the
Opinion of the Permanent Court on the question of Eastern Carelia. Such was
the case, for example, of Mr. Strupp (La question carélienne et le droit des
gens, 1924). This theory is contrary to the very substance of the judicial
organ, the independence of which must be guaranteed.
Moreover, there are, and there may be, States parties to the Statute of the
Court which are not members of the United Nations. This accentuates the
independence of the Court, its special position as an organ of the United
Nations.
Of course, the Court has the duty to discuss, analyze, etc., the Request.
But it is not obliged to answer (cf. the remarks of Mr. Hackworth : Hearings
before the Committee on Foreign Relations of the Senate of the United
States, p. 336).
(3) It has been said that the Eastern Carelia case raised before the
Permanent Court a question of substance, whereas in the present case only a
procedural question was before the Court, or rather a preparatory, a
preliminary question.
I cannot share this view.
In both cases, the Eastern Carelia case and the present one, the Court is
asked to interpret an international treaty.
In the present case, the Court must examine the clauses of the Treaties
signed with Bulgaria, Hungary and Romania on human rights and fundamental
freedoms, and the so-called performance clauses (see above, Title 1).
The Court's answer will have great influence on the future development of
the case. This answer may be utilized for political purposes—to compromise
the States of the People's Democracy.
(4) It has been said that the fact that Bulgaria, Hungary and Romania are
not members of the United Nations was irrelevant. This is not my opinion. In
the case of Eastern Carelia, Russia, in 1923, was not a member of the League
of Nations. In the present case, the three States—Bulgaria, Hungary and
Romania —are not members of the United Nations. They have not been admitted
to the Organization. Therefore, the arguments put forward by the Permanent
Court, based on the fact that Russia was not a member of the League of
Nations, preserved their full value in the present case. [p111]
(5) It was stressed before the Court that the Charter does not explicitly
require the consent of the State concerned in the case of a request for
opinion addressed to the Court by an organ of the United Nations. This is
quite true, but this is due to the fact that, in Article 96, the Charter
contemplates the case of a request for opinion on a legal question which
does not affect any one State. Article 96 does not contemplate the case of a
question "actually pending" between several States, whereas this is the case
in the present instance.
For the reasons already stated, I believe that the consent of the States
concerned is necessary in the present case and the Court must follow the
precedent of Eastern Carelia.
V. Additional comments in justification of the refusal to answer the Request
for Opinion of October 22nd, 1949.
It was demonstrated in Title I that the purpose of the Request for Opinion
of October 22nd, 1949, is to define the decisions to be taken by Bulgaria,
Hungary and Romania, not only regarding the designation of their
representatives on the Arbitration Commissions, but also in matters
concerning human rights and fundamental freedoms.
The obligations which the three States must perform in the field of human
rights and fundamental freedoms derived from the provisions mentioned above
of the Peace Treaties, and not from the Charter of the United Nations.
Bulgaria, Hungary and Romania are neither members of the United Nations, nor
parties to the Statute of the Court. They cannot be bound by articles of the
Charter and of the Statute.
The signatory States have an exclusive right, therefore, to interpret the
respective clauses of the Treaties. The Court may not have the right to
interpret them, unless the parties concerned give their consent, which is
not the case.
Taking into consideration this absence of consent, it is necessary to
consider the problem of the essentially domestic jurisdiction of these
States, mainly because the question of human rights and fundamental freedoms
is so closely knit with that of sovereignty.
One must not forget that the refusal of the Permanent Court to give an
opinion in the Eastern Carelia case was probably inspired by the fact that
the question submitted to the Court concerned the internal affairs of Soviet
Russia.
The question of human rights and fundamental freedoms, which, it is alleged,
Bulgaria, Hungary and Romania have failed to observe, is after all no more
than the problem of the functioning of the judicial and administrative
authorities of these States. There is no doubt that the question so defined
belongs to the essentially domestic jurisdiction of the State and, as such,
is out of the jurisdiction of this Court. [p112]
It has often been said that if the question is regulated by an international
treaty, it ceases to be a matter of domestic jurisdiction. The Advisory
Opinion of the Permanent Court in the case of the Nationality Decrees in
Tunis and Morocco has been the chief means of implanting this opinion and
transforming it into a sort of legal assumption.
It is not my intention to examine this question in every detail. I merely
want to stress : (a) that this doctrine arose from reference to Article 15,
paragraph 8, of the Covenant of the League of Nations, which dealt with
matters within the exclusive domestic jurisdiction of the State; (b) that
in the specific case (Nationality in Morocco and Tunis) the Court considered
the consent of two countries : France and Great Britain.
The doctrine of national competence of the State has nowadays received its
new expression. This is the wording of Article 2, paragraph 7, of the
Charter of the United Nations. It will be recalled that this article refers
to matters which are essentially—and not exclusively—within the domestic
jurisdiction of a State. The wording of this text contemplates that the
case might come within the domestic jurisdiction of the State, despite the
fact that it has been dealt with in a treaty. Even in that case, the matter
may still remain essentially within the domestic jurisdiction.
As an example, I shall quote the adhesion of some States to the optional
clause of Article 36, paragraph 2, of the Statute of the Court. Even in
subscribing to this clause, the States retain the right to give the final
definition of what comes within their domestic jurisdiction.
The Belgian author, Mr. Joseph Nisot, has judiciously observed in his recent
article in the American Journal of International Law (Art. 2, para. 7, of
the United Nations Charter, as compared with Art. 15, para. 8, of the
Covenant of the League of Nations) that the scope of the domestic
jurisdiction of the State has extended considerably under the Charter.
Having in mind the circumstances in which the new world organization was
born, and the difficulties to be overcome to obtain ratification of the
Charter by several States, it is easy to explain the causes of this
extension of the domestic jurisdiction of the State.
At San Francisco, stress was laid, in particular, on the fact that a broader
concept of the domestic jurisdiction of the State was primarily necessary
for the protection of smaller and medium nations. One also had the
impression that it was necessary to broaden the domestic jurisdiction of the
State to set aside the difficulties which might arise from the competence of
the Economic and Social Council. One had principally in mind the clause of
Article 55 of the Charter on human rights and fundamental freedoms. The
drafting of this article, aiming at promoting respect for these rights and
liberties, was intended to avoid the possibility of interference by [p113]
the Organization in the national domain of the State. This wording was
prepared mainly at the suggestion of the delegation of the United States of
America. The appropriate note can be found in the Records of a special
committee—Committee II/3—of the San Francisco Conference (Documents, t. X,
pp. 271-272).
This character of the Charter clause on human rights and fundamental
freedoms is made even clearer by the fact that the General Assembly has,
until now, approved only the Declaration on this question. The Covenant,
securing these rights and freedoms, has not yet been set up and will be
framed and adopted by the General Assembly only if matters essentially
within the domestic jurisdiction of the State are removed from its
contents.
In those conditions, it would be much more desirable to have the consent of
the States concerned so that the Court may give an opinion on the questions
raised by the Request of October 22nd, 1949.
VI. Conclusion.
The reasons here above lead me to the conclusion that, in the present
circumstances, it is inadvisable to give the answers requested in the
Resolution of October 22nd, 1949.
As I have stated already, the Court does not have the consent of any one of
the three States of the People's Democracy. This consent is all the more
necessary, since there is considerable tension in the relations between the
Governments that have appeared before the Court on the one hand, and the
"accused" Governments on the other. This tension has already been manifested
in one case by the breaking of diplomatic relations.
In those conditions, the Court cannot fail to see that its affirmative
answers to the questions raised by the General Assembly would drag the Court
into the political struggle.
I have already had occasion to express the view that it is proper to refuse
to give an advisory opinion on questions, the meaning and the purpose of
which are primarily political, even though the General Assembly submits
them to the Court (Reports of Judgments, etc., 1947-1948, p. 108).
I can only remain faithful to this view.
That is why it is not necessary for me to analyze the relevant articles of
the Peace Treaties and the comments which the Court has made on them. In my
previous arguments I have already expressed my disagreement with the views
of the Court.
(Signed) S. Krylov. [p114]
ANNEX
DOCUMENTS TRANSMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE
SECRETARY-GENERAL OF THE UNITED NATIONS IN ACCORDANCE WITH THE RESOLUTION
ADOPTED BY THE GENERAL ASSEMBLY ON 22 OCTOBER, 1949
CONTENTS
1. Records of General Assembly, second part of third session
Folder I.
Inclusion of item in agenda.
Records of proceedings.
Records of the General Committee, 58th and 59th meetings.
Records of the General Assembly, 189th and 190th plenary meetings.
Folder 2.
Inclusion of item in agenda.
Documents.
|
Letter dated 16 March,
1949, from the permanent representative of Bolivia to the
Secretary-General requesting the inclusion of an additional item in
the agenda of the third regular session of the General Assembly
|
A/820 |
|
Letter dated 19 March,
1949, from the Australian Mission to the United Nations addressed to
the Secretary-General requesting the inclusion of an additional item
in the agenda of the third regular session of the General Assembly
|
A/821 |
|
Agenda of the third
regular session of
the General Assembly;
report of the
General Committee
|
A/829
[See paragraphs 3 a
and 3 b.]
|
|
[p115] [Note - See
Folder 4 for:
Telegram dated 4
April, I949, from the Government of the Republic of Hungary to the
President of the General Assembly
|
A / 831
|
|
and
Telegram dated 9
April, 1949, from the Government of the People's Republic of
Bulgaria to the Secretary-General |
A/832 and Corr. I.
|
|
Folder 3.
Ad hoc Political
Committee.
Records of
proceedings.
|
|
34th meeting.
35th meeting.
36th meeting.
37th meeting.
38th meeting.
39th meeting.
40th meeting.
41st meeting.
|
|
|
Folder 4.
Ad hoc Political
Committee.
Documents.
|
|
Telegram dated 4
April, 1949, from the Government of the Republic of Hungary to the
President of the General Assembly |
A/831 |
|
Telegram dated 9
April, 1949, from the Government of the People's Republic of
Bulgaria to the Secretary-General
|
A/832 and Corr. I |
|
Allocation of items on
the agenda of the second part of the third session; letter dated 13
April, 1949, from the President of the General Assembly to the
Chairman of the Ad hoc Political Committee
|
A/AC.24/47 |
|
[p116] Cuba: draft
resolution
|
A/AC.24/48 and Corr. I |
|
Cuba: amended draft
resolution
|
A/AC.24/48/Rev. 2 |
|
Australia: draft
resolution
|
A/AC.24/50 |
|
Bolivia: draft
resolution
|
A/AC.24/51/Corr. I |
|
Australia: draft
resolution
|
A/AC.24/52
|
|
Chile: amendment to
the Bolivian draft resolution (A/AC.24/51/Corr. I)
|
A/AC.24/53
|
|
Colombia and Costa
Rica: amendment to the Bolivian draft resolution(A/AC.24/51/Corr. 1)
|
A/AC.24/54 |
|
Cuba and Australia:
amendment to the Bolivian resolution (A/AC.24/51/Corr. I)
|
A/AC.24/56 |
|
Telegram dated 23
April, 1949, from the Government of the People's Republic of Hungary
to the Secretary-General
|
A/AC.24/57
|
|
Telegram dated 27
April, 1949, from the Government of the People's Republic of
Bulgaria to the Secretary-General
|
A/AC.24/58
|
|
Report of the Ad hoc
Political Committee
|
A/844 |
|
Folder 5.
Plenary meetings of
the General Assembly.
Records of
proceedings.
|
|
201st meeting.
202nd meeting. 2
203rd meeting.
|
|
|
Folder 6.
Plenary meetings of
the General Assembly.
Documents.
|
|
Resolution 272 (III),
adopted by the General Assembly, 30 April, 1949.
[Note - See Folder 4
for:
Report of the Ad hoc
Political Committee |
A/844.]
|
|
[p117] II.
Relevant exchanges of diplomatic correspondence communicated to the
Secretary-General for circulation to the Members of the United
Nations
Folder 7.
|
|
Letter dated 20
September, 1949, from the representative of the United States of
America to the Secretary-General(with annexes)
|
A/985/Rev. I |
|
Letter dated 19
September, 1949, from the representative of the United Kingdom of
Great Britain and Northern Ireland to the Secretary-General(with
annexes)
|
A/990/Rev. I |
|
III. Records of
General Assembly, fourth session
Folder 8.
Inclusion of item in
agenda.
Records of
proceedings.
|
|
Records of the General
Committee, 65th meeting
|
[See pages 3 and 4,
paragraphs 71-73,
and Page 7,
paragraphs 104
and 105.]
|
|
Records of the General
Assembly, 224th plenary meeting
|
[See pages 18 and 19,
paragraphs 2-10,
and page 23,
after paragraph 56.]
|
|
Folder 9.
Inclusion of item in
agenda.
Documents.
|
|
Supplementary list of
items for the agenda of the fourth regular session; items proposed
by Australia
|
A/948 |
|
Adoption of the agenda
of the fourth regular session and allocation of items to Committees;
report of the General Committee
|
A/989
[See paragraphs 9-12.]
|
|
Folder 10.
Ad hoc Political
Committee.
Records of
proceedings.
|
|
7th meeting.
8th meeting.
9th meeting.
10th meeting.
11th meeting.
12th meeting.
13th meeting.
14th meeting.
15th meeting.
|
|
|
Folder II.
Ad hoc Political
Committee.
Documents.
|
|
Letter dated 26
September, 1949, from the President of the General Assembly to the
Chairman of the Ad hoc Political Committee
|
A/AC.31/2 |
|
Bolivia, Canada and
the United States of America: draft resolution
|
A/AC.31/L.I/Rev.I |
|
Australia: amendment
to the draft resolution proposed by Bolivia, Canada and the United
States of America (A/AC.3I/L.I/Rev. 1)
|
A/AC.31/L.2
|
|
Brazil, Lebanon and
the Netherlands: amendment to the draft resolution proposed by
Bolivia, Canada and the United States of America (A/AC.3I/L.I/Rev.
1)
|
A/AC.31/L.3
|
|
Telegram dated 7
October, 1949, from the Government of the People's Republic of
Romania to the Secretary-General
|
A/AC.31/L.4
|
|
Report of the Ad hoc
Political Committee
|
A/1023
|
|
[p119] Folder 12.
Plenary meetings of
the General Assembly.
Records of
proceedings.
|
|
234th meeting.
235th meeting.
|
|
|
Folder 13.
Plenary meetings of
the General Assembly.
Documents.
|
|
Resolution adopted by
the General Assembly, 22 October, 1949.
[Note - See Folder II
for:
Report of the Ad hoc
Political Committee |
A / 1023.] |
|
|
