18 July 1950

General List No. 8

international Court of Justice

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase)

Advisory Opinion

[p.221]
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 5j 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 'co 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 [p 223] 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 &airs 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 :

'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 ?'

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, [p 224] 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."

In an Opinion given on March 30th, 1950 (I.C.J. Reports of Judgments, Advisory Opinions and Orders, 1950, pp. 65 et sqq), the Court answered :

To question 1 :

"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 ;"

To question II :

"that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles referred [p 225] to in Question 1, which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions."

On March 3oth, the Registrar notified the substance of the Court's answers to the foregoing two questions by telegrams to the Secretary-General of the United Nations and to the Governments of all the signatories of the Peace Treaties.

By telegram of May 1st, 1950, confirmed by letter of the same date and filed in the Registry on May end, the Acting Secretary-General of the United Nations notified the Court that he had not received information, within thirty days of the date of the delivery of the Court's Advisory Opinion quoted above, that any one of the three Governments had appointed its representative to the Treaty Commissions.

By Order made on May 5th, 1950, the President of the Court, as the Court was not then sitting, decided: (1) to fix Monday, June 5th, 1950, as the date of expiry of the time-limit for the submission by the States concerned, of written statements on Questions III and IV of the foregoing Resolution ; (2) to reserve the rest of the procedure for further decision.

A certified copy of this Order, the operative part of which had been notified by telegram of May 5th to the Secretary-General and the Governments concerned, was sent to all these Governments by letter of May 9th.

By letter of May 16th, 1950, the Secretary-General of the United Nations sent to the Registrar additional documents including new diplomatic correspondence an the present case, transmitted to the United Nations by the delegations of Canada, of the United Kingdom of Great Britain and Northern Ireland and of the United States of America. These documents are listed in an annex hereto.

By letter of June 2nd, 1950, a written statement from the Government of the United States of America relating to Questions III and IV was transmitted to the Registry of the Court.

The United Kingdom Government had previously stated its views on Questions III and IT' in the written statement submitted during the first phase of this case.

By letter of May 5th, 1950, the Assistant Secretary-General of the United Nations in charge of the Legal Department informed the Registry of his intention to take part in the oral proceedings.

By letters of June 12th and 22nd, 1950, respectively, the Government of the United States and the United Kingdom Government stated their intention of submitting oral statements.

At public sittings held on June 27th and 28th, 1950, the Court heard oral statements submitted:[p 226] :

on behalf of the Secretary-General of the United Nations by Dr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department;

on behalf of the Government of the United States of America, by the Hon. Benjamin V. Cohen ;

on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser of the Foreign Office.

***

Having stated, in its Opinion of March 3oth, 1950, that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles of the Peace Treaties which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions, and having received information from the Secretary-General of the United Nations that none of those Governments had notified him, within thirty days from the date of the delivery of the Court's Advisory Opinion, of the appointment of its representative to the Treaty Commissions, the Court is now called upon to answer Question III in the Resolution of the General Assembly of October 22nd, 1949, which reads as follows :

"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 ?"

Articles 36, 40 and 38, respectively, of the: Peace Treaties with Bulgaria, Hungary and Romania, after providing that disputes concerning the interpretation or execution of the Treaties which had not been settled by direct negotiation should be referred to the Three Heads of Mission, continue :
"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.[p 227]

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 question at issue is whether the provision empowering the Secretary-General to appoint the third member of the Commission applies to the present case, in which one of the parties refuses to appoint its own representative to the Commission.

It has been contended that the term "third member" is used here simply to distinguish the neutral member from the two Commissioners appointed by the parties without implying that the third member can be appointed only when the two national Commissioners have already been appointed, and that therefore the mere fact of the failure of the parties, within the stipulated period, to select the third member by mutual agreement satisfies the condition required for the appointment of the latter by the Secretary-General.

The Court considers that the text of the Treaties does not admit of this interpretation. While the text in its literal sense does not completely exclude the possibility of the appointment of the third member before the appointment of both national Commissioners it is nevertheless true that according to the natural and ordinary meaning of the terms it was intended that the appointment of both the national Commissioners should precede that of the third member. This clearly results from the sequence of the events contemplated by the article : appointment of a national Commis-sioner by each party ; selection of a third member by mutual agreement of the parties ; failing such agreement within a month, his appointment by the Secretary-General. Moreover, this is the normal order followed in the practice of arbitration, and in the absence of any express provision to the contrary there is no reason to suppose that the parties wished to depart from it.

The Secretary-General's power to appoint a third member is derived solely from the agreement of the parties as expressed in the disputes clause of the Treaties; by its very nature such a clause must be strictly construed and can be applied only in the case expressly provided for therein. The case envisaged in the Treaties is exclusively that of the failure of the parties to agree upon the selection of a third member and by no means the much more serious case of a complete refusal of co-operation by one of them, taking the form of refusing to appoint its own Commissioner. The power conferred upon the Secretary-General to help the parties out of the difficulty of agreeing upon a third member cannot be extended to the situation which now exists.

Reference has been made for the purpose of justifying the reversal of the normal order of appointment, to the possible advantage that might result, in certain circumstances, from the appointment of a third member before the appointment by the parties of their respective commissioners. Such a change in the normal sequence could only [p 228] be justified if it were shown by the attitude of the parties that they desired such a reversal in order to facilitate the constitution of the Commissions in accordance with the terms of the Treaties. But such is not the present case. The Governments of Bulgaria, Hungary and Romania have from the beginning denied the very existence of a dispute, and have absolutely refused to take part, in any manner whatever, in the procedure provided for in the disputes clauses of the Treaties. Even after the Court had given its Advisory Opinion of March 3oth, 1950, which declared that these three Governments were bound to carry out the provisions of the Peace Treaties for the settlement of disputes, particularly the obligation to appoint their own Commissioners, these Governments have continued to adopt a purely negative attitude.

In these circumstances, the appointment of a third member by the Secretary-General, instead of bringing about the constitution of a three member Commission such as the Treaties provide for, would result only in the constitution of a two-member Commission. A Commission consisting of two members is not the kind of commission for which the Treaties have provided. The opposition of the Commissioner of the only party represented could prevent a Commission so constituted from reaching any decision whatever. Such a Commission could only decide by unanimity, whereas the dispute clause provides that "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". Nor would the decisions of a Commission of two members, one of whom is appointed by one party only, have the same degree of moral authority as those of a three-member Commission. In every respect, the result would be contrary to the letter as well as the spirit of the Treaties.

In short, the Secretary-General would be authorized to proceed to the appointment of a third member only if it were possible to constitute a Commission in conformity with the provisions of the Treaties. In the present case, the refusal by the Governments of Bulgaria, Hungary and Romania to appoint their own Commissioners has made the constitution of such a Commission impossible and has deprived the appointment of the third member by the Secretary-General of every purpose.

As the Court has declared in its Opinion of March 3oth, 1950, the Governments of Bulgaria, Hungary and Romania are under an obligation to appoint their representatives to the Treaty Commissions, and it is clear that refusal to fulfil a treaty obligation involves international responsibility. Nevertheless, such a refusal cannot alter the conditions contemplated in the Treaties for the exercise by the Secretary-General of his power of appointment. These conditions are not present in this case, and their absence [p 229] is not made good by the fact that it is due to the breach of a treaty obligation. The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties is one thing ; international responsibility is another. The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of Commission contemplated by the Treaties. It is the duty of the Court to interpret the Treaties, not to revise them.

The principle of interpretation expressed in the maxim : Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit.

It has been pointed out that an arbitration commission may make a valid decision although the original number of its members, as fixed by the arbitration agreement, is later reduced by such circumstances as the withdrawal of one of the commissioners. These cases presuppose the initial validity of a commission, constituted in conformity with the will of the parties as expressed in the arbitration agreement, whereas the appointment of the third member by the Secretary-General in circumstances other than those contemplated in the Treaties raises precisely the question of the initial validity of the constitution of the Commission. In law, the two situations are clearly distinct and it is impossible to argue from one to the other.

Finally, it has been alleged that a negative answer by the Court to Question III would seriously jeopardize the future of the large number of arbitration clauses which have been drafted on the same model as that which appears in the Peace Treaties with Bulgaria, Hungary and Romania. The ineffectiveness in the present case of the clauses dealing with the settlement of disputes does not permit such a generalization. An examination of the practice of arbitration shows that, whereas the draftsmen of arbitration conventions have very often taken care to provide for the consequences of the inability of the parties to agree on the appointment of a third member, they have, apart from exceptional cases, refrained from anticipating a refusal by a party to appoint its own commissioner. The few Treaties containing express provisions for such a refusal indicate that the States which adopted this course felt the impossibility of remedying this situation simply by way of interpretation. In fact, the risk of such a possibility of a refusal is a small one, because normally each party has a direct interest in the appointment of its commissioner and must in any case be presumed to observe its treaty obligations. That this was not so in the present case does not justify the Court in exceeding its judicial function on the pretext [p 230] of remedying a default for the occurrence of which the Treaties have made no provision.

Consequently, Question III must be answered in the negative. It is therefore not necessary for the Court to consider Question IV, which requires an answer only in the event of an affirmative answer to the preceding Question.

For these reasons,

The Court is of opinion,

by eleven votes to two,

that, if one party fails to appoint a representative to a Treaty Commission under the Peace Treaties with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, the Secretary-General of the United Nations is not authorized to appoint the third member of the Commission upon the request of the other party to a dispute.

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this eighteenth day of July, one thousand nine hundred and fifty, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Basdevant,
Presfdent.

(Signed) E. Hambro,
Registrar.

***
Judge Krylov, while joining in the conclusions of the opinion and the general line of argument, declares that he is unable to concur in the reasons dealing with the problem of international responsibility which, in his opinion, goes beyond the scope of the request for opinion.

Judges Read and Azevedo, declaring that they are unable to concur in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinion.

(Initialled) J. B.

(Initialled) E. H.

[p 231]
DISSENTING OPINION OF JUDGE READ

I am unable to concur in the answer given by the Court to Question III, or with the reasons by which it is justified, and feel bound, with regret, to state the reasons for my dissent. As I am of the opinion that an affirmative answer should be given to Question III, it is also necessary for me to state the reasons which have led me to the conclusion that an affirmative answer should be given to Question IV.

Circumstances have now arisen in which it is necessary to deal with Questions III and IV. The Court is not called upon to pronounce upon the substance of the disputes which have arisen, but, in appreciating the juridical scope of the Disputes Articles, I cannot disregard the Articles in the Treaties in respect of which the disputes arose, or the attitudes which have been maintained by the parties to the disputes.

The importance of the maintenance of human rights and fundamental freedoms is emphasized by their inclusion in the purposes of the United Nations as set forth in Article I of the Charter, and by the central position taken by the Human Rights Articles of the Treaties of Peace.

It is inconceivable to me that the Allied and Associated Powers would have consented to the setting up of machinery for the settlement of disputes arising out of such important matters which could be rendered ineffective by the sole will of any one of the three Governments concerned, Bulgaria, Hungary and Romania. I am, therefore, inclined at the outset to the view that the Disputes Articles must be interpreted in a manner which will ensure their real effectiveness rather than a manner which would deprive them of all effectiveness.

The Questions which have been put to the Court have arisen out of a complicated network of disputes between certain of the Allied and Associated Powers and Bulgaria, Hungary and Roma-nia. It is unnecessary to examine these disputes in detail. It is sufficient to note certain common factors.

They all involve specific charges of violations of the undertakings given in the Human Rights Articles of the Treaties of Peace to secure human rights and fundamental freedoms. They all involve denials of the charges and justification of the conduct complained of.

Throughout the controversy, the Powers which have made the charges have maintained a consistent attitude. They have stood for the defence and maintenance of the fundamental freedoms; [p 232] and they have been unremitting in their efforts to have the charges reviewed and decided by a judicial tribunal, the Treaty Commissions provided for in the Disputes Articles of the Peace Treaties.

The accused Governments have maintained an equally consistent attitude. They have denied the charges ; they have denied the existence of the disputes ; they have objected to the competence of this Court ; they have refrained from appointing national representatives on the Treaty Commissions; they have been unremitting in their efforts to prevent the charges from being reviewed and decided by the judicial tribunals; but they have not at any time questioned the competence of Treaty Commissions, to which they have not appointed representatives, to review the charges and to make binding decisions in settlement of the disputes.

The legal issues which have been put to the Court must be considered in the light of these attitudes. The central issue is whether the provisions of the Peace Treaties should be construed as authorizing Bulgaria, Hungary and Romania to frustrate the operation of the Disputes Articles and to prevent judicial review of the charges and decision of the disputes, by the simple device of defaulting on their obligations under the Treaties in the matter of appointing their national representatives on the Treaty Commissions.

***

It will be convenient, before answering the Questions, to consider the special problem of the competence of a Treaty Commission composed of a representative of the government which has made the charges and a third member appointed by the Secretary-General, a problem which depends, not upon general rules of law, but upon the meaning which should be given to the Disputes Article.

The Disputes Article is an arbitration clause. It is not contained in a special agreement providing for arbitration of a particular case, but in a general treaty, the Treaty of Peace. It is designed to provide for the judicial settlement of any disputes arising under the Treaty (apart, of course, from special types of disputes for which a different procedure is provided). Accordingly, it is not open to the Court to give a narrow or restrictive interpretation of the Disputes Article.

The provisions of Article 92 of the Charter disclose the intention of the United Nations that continuity should be maintained between the Permanent Court of International Justice and this[p 233] Court. There can be no doubt that the United Nations intended continuity in jurisprudence, as well as in less important matters. While this does not make the decisions of the Permanent Court binding, in the sense in which decisions may be binding in common-law countries, it does make it necessary to treat them with the utmost respect, and to follow them unless there are compelling reasons for rejecting their authority. This is doubly true in matters of treaty interpretation, because draftsmen, in deciding upon the language to be used in a treaty provision, e.g., the Disputes Article, have constantly in mind the principles of interpretation as formulated and applied by the Permanent Court and by this Court. Failure to follow established precedents in the matter of treaty interpretation inevitably leads to the frustration of the intention of the parties.

The Permanent Court, when called upon to interpret arbitration clauses of widely varying types, with provisions for the settlement of international disputes, did not hesitate to adopt and apply broad and liberal interpretations, designed to make them workable and to give practical effect to the evident intention of the parties as shown by the provisions of the treaties in which the clauses were included. To ascertain their intention, the Permanent Court examined each treaty as a whole in order to learn its general purpose and object.

Series A No. 2, August 30th, 1924. Judgment. The Mavrommatis Palestine Concessions
Series B No. 12. November 21st, 1925. Advisory Opinion. Article 3, paragraph 2, of the Treaty of Lausanne (Mosul Boundary Case)

Series A No. 9. July 26th, 1927. Judgment. The Factory at Chorzów (Claim for Indemnity) (Jurisdiction)

Series B No. 16. August 28th, 1928. Advisory Opinion. Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (Final Protocol, Article IV)

The precise point of interpretation, with which the Court is now concerned, did not arise in these cases, but the fundamental rules of construction, adopted and applied by the Permanent Court, can and should be adopted and applied by this Court in ascertaining the true meaning of the Disputes Article in the Treaty of Peace.

In addition to the cases in which the Permanent Court dealt with the interpretation of arbitration clauses, there were other important instances in which it adopted and applied the principle of effectiveness, and the same principle has been recognized and applied by this Court.[p 234]

Series B Nos. 2 and 3. August 12th, 1922. Advisory Opinions. Competence of the International Labour Organization with respect to Agricultural Labour

Series B No. 6. September 10th, 1923. Advisory Opinion. German Settlers in Poland

Series B No. 7. September 15th, 1923. Advisory Opinion. Acquisition of Polish Nationality

Series B Nos. 8 and 9. December 6th, 1923, and September 4th, 1924. Advisory Opinions. (These Opinions, dealing with boundary questions on the Czechoslovak-Polish and on the Albanian frontiers, might, perhaps, have been included in the list of authorities which dealt with arbitration clauses.)

Series B No. 13. July 23rd, 1926. Advisory Opinion. Competence of the International Labour Organization to regulate, incidentally, the persona1 work of the Employer

Series A No. 22. August 19th, 1929. Order. Free Zones. (Cited, with approval, by this Court in the Corfu Channel Case (Merits), I.C.J. Reports 1949, at p. 24.)

The Corfu Channel Case (Merits), P.C.J. Reports 1949, p. 4

Reparations for injuries suffered in the Service of the United Nations. Advisory Opinion. I.C.J. Reports 1949, p. 174

The principle of international law applicable to the interpretation of treaties, which has been established by the series of authorities cited in this and in the preceding paragraph, was concisely and accurately stated by the Permanent Court in its Advisory Opinion, Series B, No. 7. The Court was dealing with the Polish Minorities Treaty. In considering an objection to the competence of the League of Nations, the Court refused to accept the Polish argument for a restrictive interpretation of the Treaty and stated, at page 16 :

"If this were not the case, the value and sphere of application of the Treaty would be greatly diminished. But in the Advisory Opinion given with regard to the questions put concerning German Colonists in Poland, the Court has already expressed the view that an interpretation which would deprive the Minorities Treaty of a great part of its value is inadmissible. In the present case, it would be still less admissible, since it would he contrary to the actual terms of the Treaty, which lays down in Article 12 that the clauses preceding this Article, including therefore those contained in Article 4, are placed under the guarantee of the League of Nations." (Italics added.) [p 235]

Professor Lauterpacht, in The Development of International Law by the Permanent Court of International Justice, made an exhaustive examination of the authorities as they stood at the date of publication, 1934. including most of those which are cited above, and a number of other relevant Judgments and Opinions of the Permanent Court. He records the result of this study at pages 69-70 :

" .... The work of the Permanent Court has shown that alongside the fundamental principle of interpretation, namely, that effect is to be given to the intention of the parties, fiill use can be made of another hardly less important principle, namely, that the treaty must remain effective rather than ineffective. Res magis valeat quam pereat. It is a major principle, in the light of which the intention of the parties must always be interpreted, even to the extent of disregarding the letter of the instrument and of reading into it something which, on the face of it, it does not contain."

The principles established by these judgments and advisory opinions may be stated as follows :

(1) That "the treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense". (Series R, Nos. 2 and 3, p. 23.)

(2) "An interpretation which u70uld deprive the .... Treaty of a great part of its value is inadmissible." (Series B, No. 7— the word omitted is "minorities".)

(3) Particular provisions should be interpreted in such a manner as to give effect to the general purposes and objects of the Treaty provided that "it does not involve doing violence to their terms". (I.C.J. Reports 1949, p. 23.)

***
The adoption and application of these principles or rules of construction make it necessary to undertake a three-fold task.

1st task

The examination of the provisions of the Peace Treaty as a whole with a view to ascertaining whether there is a general purpose or object disclosed by this examination which should influence or even control the interpretation of the Disputes Article.

2nd task

Consideration of 2 possible negative answer to Question IV with a view to ascertaining whether it would conflict with the general [p 236] purposes and objects of the Treaty, and whether it would deprive the Treaty of a great part of its value so as to he inadmissible in accordance with the second rule of construction.

3rd task

Consideration of a possible affirmative answer to Question IV with a view to ascertaining whether it would further the general purposes and objects of the Treaty, and whether it would involve doing violence to the terms of the Disputes Article so as to be excluded in accordance with the third rule of construction.
*

The first task involves an examination of the provisions of the Peace Treaty considered as a whole.

The Treaty with Hungary contains 37 Articles with substantive provisions :

Part I Frontiers of Hungary.
,, II Political Clauses.
„ III Military and Air Clauses.
„ IV Withdrawal of Allied Forces.
„ V Reparation and Restitution.
„ VI Economic Clauses.
„ VII Clause relating to the Danube.



Within these Parts, I to VII, there is a special procedure for settlement of disputes in Article 5 (z), applicable only to disputes arising under Article 5 (1) ; and a special procedure (,in Article 35) for disputes arising in connexion with Articles 24, 25 and 26 and Annexes IV, V and VI.

Part VIII of the Treaty, "Final Clauses", contains Article 40, which is applicable to Articles I to 38 inclusive, excepting Articles 5, 24, 25, 26, 35 and 36. It is a clause providing for compulsory arbitration of all disputes "concerning the interpretation or execution of the present Treaty", other than those which arise under specifically excepted Articles referred to above.

This survey of the Peace Treaty discloses the close integration between the Disputes Article and the substantive provisions of the Treaty. It leads inescapably to two conclusions. In the first place, the text of the Disputes Article considered by itself shows a firm intention of the Parties to provide a workable compulsory jurisdiction to deal with disputes arising out of the substantive provisions of the Treaty. In the second place, that firm intention as re-inforced when Article 40 is read in relation to the Treaty as a whole. [p 237]

*
This brings me to the second task. Would an interpretation leading to a negative answer to Question IV deprive the Treaty of a great part of its value—would it conflict with the general purposes and objects of the Treaty ?

The purposes and objects of the Treaty are disclosed by the action of the Parties. This is indeed a case in which actions speak louder than words. The Parties were not content to leave "freedom" to depend on legal obligation alone. They provided a regime of arbitration, the Disputes Article. The Disputes Article was, in form, reciprocal. However, the obligations of the Allied and Associated Powers were executed, whilst the undertakings of the Governments of Bulgaria, Hungary and Romania were largely executory ; so that in substance, if not in form, this Article was obviously included as a guarantee or sanction to ensure performance by them of their undertakings and other obligations arising under provisions of the Treaty. It is unthinkable that the Parties, when they drafted this Article and included it in the Treaty, intended to forge a brutum fulmen, a provision for judicial review and decision dependent for its effect upon the momentary whim or interest of a defaulting party.

Above all, when the Parties used the expression—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, etc.—they meant shall and not may. They meant at the request of either Party ; and not at the request of either party pro7rided that the other party was willing to cooperate in the reference.

In the entire history of the Permanent Court, there is no instance in which an argument was advanced that went so far in depriving a treaty of a great part of its value, or in frustrating its general purposes and objects, as the contention necessarily involved in a negative answer to Question IV. A negative answer would destroy the Disputes Article as an effective guarantee of the substantive provisions of the Treaty : it would render largely nugatory the undertakings given to secure the enjoyment of human rights and fundamental freedoms. It would not merely prevent judicial review of the specific charges. It would give rise to a position in which the three Governments would no longer be subject to effective control under the provisions of the Disputes Articles.

A possible objection might be raised to the establishment of a Treaty Commission consisting of the third member and a national representative, in the case of default by the other party to the [p 238] dispute. It might be suggested that the Commission would be unable to perform its task if the defaulting government refused to co-operate. There is no reason for assuming that governments now in default would continue to default if faced with appointments by the Secretary-General. There is certainly no reason for assuming that any of the governments would refrain from exercising its duty and privilege of naming a national representative in that event. However, even in the event of continued default, there is no justification for assuming that the governments which have made the charges will not be able to present sufficient evidence to the Commission to justify decision.

In these circumstances I am compelled to conclude that an interpretation leading to a negative answer to Question IV would deprive the Treaties of Peace of a great part of their value, and that it would conflict with their general purposes and objects. In accordance with the principles oi international law established in the cases cited above, I am bound to reject this interpretation as inadmissible.

***

This brings me to the third task—the consideration of a possible affirmative answer to Question IV with a view to ascertaining whether it would further the general purposes and objects of the Treaty, and whether it would involve doing violence to the terms of the Disputes Article so as to be excluded in accordance with the third rule of construction referred to above.

The first aspect of this task presents no problem. In view of the considerations set forth above it is obvious that an affirmative answer to Question IV would further the general purposes and objects of the Treaty.

In the cases which have been cited above the Permanent Court went a very long distance by way of interpretation to give effect to the principle of effectiveness. It is impossible to apply the rules which govern resort to preparatory work in the interpretation of treaties to the present problem. The Permanent Court has always recognized that the application of the principle of effectiveness is subject to different considerations. It is, however, necessary to admit that there is no instance in which the Permanent Court intimated that it would apply the principle of effectiveness if application involved among violence to the Terms of the treaty provisions under consideration.

Accordingly, it is necessary to give close consideration to the text of the Disputes Article which reads as follows : [p 239]

"1..... 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."

I have omitted the first sentence in paragraph I because it refers to conditions which have already been satisfied, and which are not directly relevant to the present phase of this Question.

In construing this Article, it will be observed at the outset that it bears the hall-marks of a compulsory arbitration clause. When it provides that any such dispute shall be referred at the request of either Party to the dispute to a Commission, it plainly indicates an intention of the Parties to the Treaty to establish a regime of compulsory arbitration. The dispute is to be referred 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. In using the expression "a third member" it seems to be clear that the parties had in mind not the chronological order of appointment, but a third member in the sense that that member was to be "additional to and distinct from two others already known or mentioned" (Shorter Oxford English Dictionary, Volume II, p. 2174), or in other words, additional to the provision for party representation. The last sentence of the first paragraph provides for the contingency which might arise in the event of failure of the parties to agree upon the "third member", and gives authority to the Secretary-General at the request of either party to make an appointment.

The second paragraph made special provision for the situation which might arise if both parties to the dispute exercised the right under the Treaty to have representatives on the Treaty Commis-sion. In such a contingency it was necessary to provide for a majority decision. There was no need to make provision for the situation which would arise if one or both parties to the dispute waived the privilege of representation on the Commission. [p 240]

It is necessary to make special reference to the expression in the text "a Commission composed of one representative of each party and a third member, etc." The Parties to the Treaty did not state that the Commission was to be a three-member tribunal, but it is possible to construe this expression as indicating by implication the intention of the parties that the Commission should be a three-member tribunal. It is also possible to construe this expression as indicating the intention of the Parties to create a Commission on which each of the parties to a dispute should have the right or privilege, or even duty, to appoint a representative ; but as not requiring that the Commission should necessarily consist of three members, in the case of waiver by a party of the exercise of the right or privilege thus conferred or its failure to do its duty. The problem of interpretation with which the Court is confronted is a choice between two possible constructions, neither of which does violence to the language of the Treaty and both of which are based upon inferences drawn from the expressions actually used in the text.

In these circumstances, it seems to be clear that the Court is not precluded from adopting either of the foregoing interpretations by the third rule of construction which is set forth above.

This view is strongly supported by another consideration. It is noteworthy that the Parties to the Treaty made express provision to prevent the general purposes and objects of the Disputes Clause from being frustrated by failure of the parties to the dispute to agree upon the selection of the third member. They provided for appointment by the Secretary-General. On the other hand, they made no express provision for the contingency which has actually arisen, of attempted frustration of the purposes and objects of the Treaty by failure of one party to the dispute to appoint its representative on the Treaty Commission. There is a gap or lacuna in the Disputes Article. i am not suggesting that this was due to oversight on the part of those who were responsible for the drafting of the Treaty of Peace. They were undoubtedly familiar with the principles of international law as developed and applied by the Permanent Court, and were justified in assuming that the Disputes Article would be interpreted and applied in accordance with those principles. In the present proceedings the Court is faced with the problem of dealing with this gap or lacuna in the Treaty. It is the problem of dealing with a contingency for which the Parties have made no express provision, and which can be solved only by judicial interpretation with a view to giving effect to the intention of the Parties as disclosed by legal implication based upon the terms and expressions actually used.[p 241]

Two possible solutions need to be considered in turn.

The first possible solution is based upon a reasonable construction of the text of the Disputes Article in conformity with the principles of international law, and with the clearly indicated intention and purpose of the Parties to the Treaty. Following this construction the provisions for representation of the parties to the dispute would be construed as intended to confer on each party a right or privilege which it could exercise or waive. In the present instance, the government in default, by failing to appoint its representative, has clearly waived its right or privilege under the Treaty and defaulted in the performance of its duty— —although, of course, it would be open to that Government at any time to withdraw its waiver to comply with its obligations under the Treaty and to make an appointment—but no party to a treaty can destroy :he effect of the treaty itself by its own default or by its failure to exercise a right or a privilege. In the present instance, that government could not by such an omission prevent the Treaty Commission from performing its allotted task.

The second possible solution presents much more difficulty. It involves the filling of the gap by a process of judicial interpretation in such a manner as to establish by implication an "escape" or "escalator" clause whereby a party to a dispute can, by failure to exercise its right and by disregarding its Treaty obligation, find an easy way out from the regime of compulsory arbitration. There have been many instances in Treaties, especially in those dealing with the limitation of armaments, in which express provision has been made for "escape" or "escalator" clauses. They have always been devised to protect a party acting in good faith from being prejudiced by the default of a party in bad faith. There is none in modern treaty practice in which an escape clause has been established, based on implication ; and there is certainly no instance of either an implied or express escape clause made available only to those Parties to the Treaty which have defaulted in their Treaty obligations.

The considerations which I have disclosed above in dealing with the first and second tasks lead me to reject the second solution.

There is a further consideration. There have been a great many arbitration clauses included in treaties in the course of the last century and a half, and no recorded instance has been drawn to the attention of the Court in which a party to a dispute has sought to evade arbitration by the comparatively simple device [p 242] of refraining from appointing its national representative. International practice has treated these provisions as conferring rights or privileges upon the parties to the dispute which they would refrain from exercising at their peril—the peril of being confronted with an arbitral decision by a tribunal on which they had no representative. The adoption of the second solution referred to above would not merely frustrate the intentions of the Parties as clearly indicated in the Treaty of Peace, it would go directly contrary to international usage in the matter of arbitration as it bas been developed since the Jay Treaty of 1794. It is noteworthy that neither the Members of the United Nations, nor the three non-member States concerned have placed before the Court the contention that it is open to a party to the dispute to prevent its arbitration by the expedient of refraining from appointing a representative on the Commission. There are 61 States "entitled to appear before the Court", all of which have the right to present written statements or observations under Article 66 of the Statute. Eight of these States have availed themselves of this right: but not one of them has stood for this position. The Governments of Bulgaria, Hungary and Romania have presented observations, and have not made this contention. The fact that no State has adopted this position is the strongest possible confirmation of the international usage or practice in matters of arbitration which is set forth above.

In the Written Observations submitted by the United Kingdom Government, in the Written Statement of the United States Government, and in the course of the very able and helpful arguments presented to the Court by Mr. Cohen and Mr. Fitzmaurice, the attention of the Court has been directed to a long line of precedents in which it has been established that a party to a dispute, under an arbitration clause, cannot prevent the completion of the arbitration and the rendering of a binding decision by the device of withdrawing its national representative from the tribunal.

I am of the opinion that the principle established by these precedents is equally applicable to the case where a party to a dispute acts in bad faith from the outset, and attempts to use the device of defaulting on its treaty obligation to appoint its national representative on the tribunal in order to prevent the provisions of the arbitration clause from taking effect.

There are three phases in the life of an arbitral tribunal. The first phase may be referred to as the constitution of the tribunal. At this stage the tribunal may deal with matters of some import, such as procedure. However, it consists largely of administrative and protocol matters : emoluments; forum; enrolment on the local diplomatic list; exchange of calling cards; and even less weighty matters. The second phase is that in which [p 243] the tribunal hears the evidence and arguments. The third phase includes deliberation and judgment. I do not need to emphasize the relative importance of the second and third phases, as compared with the first. I have suggested that the principle is equally applicable to default at the outset. As a matter of fact, the case for applying the principle to default at the outset is much stronger. It is much more difficult to construe an arbitration clause as indicating the intention of the parties that a tribunal consisting of the third member and the representative of one party can hear the evidence and give a decision, than it is to construe it as indicating their intention that a decision to invite the local mayor to give an address of welcome at the opening session could be made in the absence of a national representative.

If a Treaty Commission—which, as the result of the withdrawal of a national representative, consists of the third member and the representative of the party which is not in default—is competent to hear the evidence and render a decision, it means that a Commission of two members is a "commission" within the meaning of paragraph 2 of the Disputes Article. It follows that such a Treaty Commission consisting of two members must also be a "commission" within the meaning of paragraph I' of the Disputes Article. The whole foundation of the contention that only a so-called three-member Commission can be a "commission" within the meaning of the Disputes Article falls to the ground.

*

Another consideration supports an affirmative answer. The Court has not been asked for its Opinion on an academic question. The recitals, in the preamble of the General Assembly's Resolution of October 22nd, 1949, clearly indicate that the answers to the Questions must be directly related to the actual disputes. The answers must be applied to the complicated network of disputes to which I have referred. It is necessary to deal with the question in the same way as if it arose in contested proceedings between these two parties. The General Assembly is' not interested in the academic question of the competence of a Treaty Commission composed of members appointed by the United States Government and by the Secretary-General in circumstances which do not exist. It wants the same answer as would be given if the same question had been included in special agreements concluded between the parties to the disputes.[p 244]

Accordingly, I think that i am bound to take into account the fact that, in the existing circumstances and under existing international law, a defaulting government could not object to the competence of such a tribunal. If it raised the objection before such a Treaty Commission, it would be bound to apply existing international law and refuse to let such a government profit from its own wrong. If it raised the objection in proceedings before this Court, it would be necessary for the International Court of Justice, which is not a law-making organ, to apply existing legal principles and recognize that it was estopped from alleging its own treaty violation in support of its ow7n contention. It is impossible for me, acting as a judge in advisory procedure, to raise this objection, which the defaulting government itself would be prevented from raising in any proceedings which recognized the principles of justice.

There can be no doubt as to the law on this point. It was settled by the Permanent Court in Judgment No. 8 : Series A, No. 9. The Factory at Chorzów (Claim for Indemnity) (Jurisdiction), at page 31. No reasons have been submitted, in the Written Statements or Observations or during the oral argument, on which any distinction in principle between the two cases could be based or which would justify the rejection of the legal principles adopted and applied in that case.

*

Still another consideration can be advanced, in support of an affirmative answer to Question IV, or as a compelling reason for rejecting a negative answer. In 1758, Vattel formulated a rule or principle of interpretation in the following words :

"Any interpretation that leads to an absurdity should be rejected: or, in other words, we cannot give to a deed a sense that leads to an absurdity, but we must interpret it so as to avoid the absurdity...." (The Law of Nations or the Principles of Natural Law. Text of 1758 : Book II : S. 282.)

This rule has been regarded as authoritative by the foreign offices of the world and by international lawyers and tribunals for one hundred and ninety-two years.

The authority of the principle, which is embodied in Vattel's formula, has been recognized as recently as March 3rd, 1950, by this Court. In the case, Competence of the Assembly regarding admission to the United Nations, Advisory Opinion : I.C.J. Reports 1950, at page 8, it is stated :

" .... The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the [p 245]provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter. If, on the other hand, the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the arties really did mean when they used these words. As the 8ermanent Court said in the case concerning the Polish Postal Service in Danzig (P.C.I.J., Series B. No. II, p. 39) :

'It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.' "

It has been established above that a negative answer to Question IV would lead to the establishment, by the process of judicial interpretation, of an escape clause, available only to treaty violators, which would enable a defaulting Party to the Treaty of Peace to destroy the effectiveness of the Disputes Article and to disregard with impunity most of its undertakings under the substantive provisions, and, in particular, to render largely nugatory the guarantees for securing human rights and fundamental freedoms.

I am firmly of the opinion that I am bound, by the terms of Article 38 of the Statute and in accordance with the views of this Court, as set forth in the case cited above, to reject a negative answer which would "lead to an unreasonable result", and to give an affirmative answer to Question IV.

***
In the light of the foregoing considerations, it is necessary to deal with Question III, which reads as follows :

"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 ?"[p 246]

The Disputes Article (cited above) uses the expression "third member". I have already referred to my reasons for thinking that the Parties did not mean "third" in the order of chronological appointment. They meant "third" in the sense in which lawyers speak of "third parties" or "third party procedure", or in the sense in which international lawyers use the expressions "third member" or "third State" in international matters, including arbitration practice. This view is confirmed by the use of the expression "third country". It would be impossible to attribute numerical significance to "third" in the latter expression. In a dispute, another Party to the Treaty would be a "third country" if the word "third" is construed as having its numerical and primary meaning. I have no doubt that the Parties intended to restrict the Secretary-General's authority to the appointment of nationals of countries which were not Parties to the Treaty and which would therefore be disinterested. Accordingly, I am of the opinion that the expressions "third member" and "third country" are a concise and convenient way of referring to members of countries which are neutral or disinterested in the disputes.

The Court cannot overlook the significance of the fact that the provisions of the Disputes Article prescribe only one condition to be satisfied before the Secretary-General has authority to appoint the third member. That condition is stated in the following words : "Should the two parties fail to agree within a period of one month upon the appointment 'of the third member...." When the Parties have, in plain language, set forth the condition, the happening of which must precede the exercise of an authority, only the strongest and most compelling reasons would justify the establishment of an additional condition by the process of judicial interpretation. There are no strong and compelling reasons. On the contrary, I have set forth above the strongest and most compelling reasons for rejecting such a judicial interpretation.

Accordingly, I am of the opinion that an affirmative answer must be given to the third question.

***
Question IV reads as follows :

"In the event of an affirmative reply to Question III : [p 247]

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 ?”

I have already given sufficient reasons for my conclusion that an affirmative answer must be given to the fourth question.

(Signed) J. E. Read.

[P 248]
DISSENTING OPINION OF JUDGE AZEVEDO
[Translation.]

Whilst regretting that my opinion differs from that of the Court, I give an affirmative answer to both questions for the following reasons:

1.—It is useless to recall here in detail the evolution of law which tends to carry to its ultimate consequence the execution of any sort of obligation ; the nature of the undertakings must be examined in order to accept incomplete or imperfect solutions such as that of damages, in the sole case of de facto or de jure impossibility.

Once the respect of the human person has been reserved—nemo ad factum prœcise cogi potest—the execution of the obligations to "perform" is therefore pursued until a remedy is found for a mere declaration of will which the debtor persists in refusing to make without reason. As regards the pactum de compromittendo, international law has made certain progress in developing the formulas regulating passage from arbitration in potentia to arbitration in actu, particularly in respect of the appointment of arbitrators by the act of a third party.

This is to be explained by the absence of a complete judicial organization which, in domestic law, prevents too frequent reference to private judges. But for the same reason, viewed from a dif-ferent angle, the task of filling the gaps in a treaty is in general rendered very difficult, in the international field, in the absence of a person who can assume this delicate role of appointing substitute arbitrators.

At any rate, the means permitting international engagements to be rite adimpleti may more easily be found if a clear distinction is made between the question of the legitimacy of a substitution of the will and that of the organ entrusted with such action.

2.—Confronted with the fact that it is almost impossible to provide adequate rules covering an almost infinite number of concrete cases, it is sufficient that the author of a law or treaty should set up machinery which can function normally, and the juridical system will provide for the adaptation required in each case, without requiring a revision of the acts. On the contrary, conventions will often be shown to be useless if, by excessive attachment to the letter of the texts and by resorting to vague penalties especially when it is known that there is an intention to evade the agreements, the defects attributed to the undertakings are allowed to prevail.[p 249].

The specific performance of preliminary contracts does not affect the sovereignty even of the State which rightfully alienated it to the extent necessary to permit a replacement of its own choice— quœ ab initio erant voluntatis ex post facto funt necessitatis.

It is also of little importance that international obligations cannot in general be the object of direct penalties, if the execution of some of them can be pursued up to a certain point; there should thus be no hesitation about pursuing the useful results of an arbitration clause, by abandoning the problems raised by the execution of the decisions at the moment when these are handed down by the arbitrators. This will be a subsequent stage which is easier to regulate, for the law would already be declared.

3.—In the present case, the careful and prolonged negotiations which preceded the drafting of the treaties concerned de out the possibility of faults and errors having been committed by the parties themselves; on the other hand, they derive therefrom a certain character of compromise often leading to formulas which are not completely satisfactory to the two parties.

These considerations, however, could not justify the conclusion that a renunciation for resistance in respect of the appointment of a third member, a more serious question than the replacement of the representative of one party, was successfully overcome. Indeed, the choice of a third member, failing previous agreement, will no longer be subject to control by the parties, and this affects both the party which in good faith tried to find an impartial arbitrator and the party which frustrated such appointment; whereas, in the nomination of a national commissioner, where each party enjoys complete liberty to make the designation, the intervention which is exercised as a penalty from the outside would affect only the guilty party. The normal interest in having a member freely chosen may yield to the design of frustrating the constitution of the arbitral organ.

4.—It must therefore be admitted that instead of accepting risks, the parties, whilst providing for disputes, did not contemplate such unusual eventualities as the denial that the disputes them-selves existed, or the radical refusal to appoint national commissioners. There is nothing in the preparatory work of the treaties to show that the parties contemplated the eventuality of all disputes remaining without a solution, practically facilitating the non-performance of the treaties themselves.

At any rate, this failure to provide for every case would not be irreparable, in view of the juridical principles recalled above which can overcome undue resistance, as was shown in the Opinion of the Court which removed the first of the said obstacles. Even the absence of a clause providing for the substitution of a national member, as may be found in some treaties, would not lead to such an irreparable result.[p 250]

5.—It may be observed that a high authority of the United Nations has been exceptionally invested with broad powers, which go beyond the functions attributed to him by the Charter. Indeed, the Secretary-General has been entrusted with a number of very delicate tasks which all tend to one main end—to ensure the peaceful settlement of any dispute which may arise between the parties.

In this way a strict interpretation limited to an examination of one text only and which takes as its data a partial intention of the parties, cannot, in my view, prevail, especially if it confirms the complete breakdown of the whole machinery for solving the disputes, although it be recognized in theory that a responsibility arises from the fact that an international obligation has been violated.

On the contrary, I believe that the treaties should be interpreted as a whole, having regard to the purposes embodied therein. No effort must be spared to ensure the most perfect execution of obligations, in spite of imperfections and disadvantages exclusively due to the obstruction of the party which was under the obligation to carry out the undertaking.

6.—But the request for an opinion does not contemplate the maximum result in the application of these principles, as would be the case, for example, if it attempted to provide for the appointment of the national commissioners themselves on the basis of an argument derived a fortiori from the nature and extent of the powers conferred upon the Secretary-General.
Question III hardly refers to the nomination of the representative of a recalcitrant State in conjunction with that of the third member, and the Court must simply confine itself to the problem of the nomination of a third member independently of the nomination of the other arbitrators.

In order to determine whether the nomination of the third member must necessarily follow the designation of the other members, it must first be admitted that the texts of the relevant clauses are completely neutral and provide for several solutions. They are therefore not sufficiently clear to justify the rejection of any process of interpretation other than the one which confines itself to the letter of the texts.

To be sure, the current practice is to appoint the third member after the other members have been appointed, or at the same time, but this empirical observation by no means justifies Our reading into these texts a condition which does not exist.

7.—What is most interesting, however, is the nature of the functions attributed to the third arbitrator in each particular case.

International practice makes a clear instinction between two principal categories of such functions.[p 251]

In a certain number of cases the third member appears on the scene only when a divergence of views arises between the other commissioners, and his function in principle is to give the casting vote ; he may in exceptional circumstances be authorized to adopt an intermediary solution or even an entirely new one. This position is exclusively subsidiary and conditional.

In other cases the nomination of a third member takes place beforehand, and he is even entrusted with the task of presiding over the work of the commission. He plays a principal role which, however, decreases when the other members agree, even though he be permitted to give his personal views in any case.

8.—There happens to be a decisive element in the three treaties which points clearly to the system which has been preferred.

Indeed, these instruments provide for the constitution of two commissions : one a so-called "conciliation" commission for economic questions, and the other, which has no name, for disputes in general.

The first of these is composed of an equal number of representatives of the parties concerned, although the precise number of the members is not laid down ; nevertheless, if agreement has not been reached within three months of the dispute having been referred to the commission, the addition of a third member, appointed by the Secretary-General, may be required. This is a perfect model for the role of the third arbitrator who can only intervene after the efforts of the other members have failed (Treaties with Hungary, Bulgaria and Romania, Articles 35, 31 and 32 respectively).

In the other commission the régime of the coincidence of two opinions is also preferred; but, in this case, the very designation of the third member by the Secretary-General depends- not upon a time-limit extending from the date when a certain case was referred, but merely upon disagreement between the parties upon the appointment of a national of a third State, after a lapse of one month (the above cited treaties, Articles 40, 36 and 38).

This comparison, within the same treaty, brings out a distinction which is further emphasized by the creation of a third commission, provided for only in the treaty with Romania (Article 33). For instance, for the determination of the prices of goods delivered as reparations, a third system has been adopted submitting the controversy to the Heads of Diplomatic Missions at Bucharest. In case of disagreement, the Secretary-General shall appoint a single "arbitrator" whose decision shall be binding on the parties. Obviously, this arbitrator is not bound by any of the solutions previously put forward.

9.—In the present case, it seems therefore arbitrary again to call upon the Secretary-General to intervene in another circumstance which the text has not indicated as a condition : the appointment [p 252] and also perhaps the acceptation of other members. Nor has the sequence of voting at the time of the decision any relation to that of the appointment of the members of the organ, as they must all perform their functions simultaneously.

In the desire to meet a hypothetical intention of the parties, one runs the risk of losing sight of the main aspect of the question, that of the role of the third arbitrator considered from the angle of a familiar distinction in international law. Even this preoccupation does not give assurance of a perfect interpretation and, at the same time, by an inversion of the order followed in the Request for Opinion, may compel an answer to a question which in the end must be set aside: Question IV.

10. —Undoubtedly the appointment of this third member would be useless if ultimately the commission were unable to function. For that reason, the General Assembly has put Question IV.
Before answering the question, one must, however, underline another aspect of the function of the commissioners : those that are to be appointed by the parties have quite openly been considered as their "representatives". This will make it easier for the States having designated them to replace them.

On the other hand, the position of the third member becomes more important, as he will in fact become the only true arbitrator, with the single reservation that he will not be in a position to adopt another solution than those proposed by the other members. He will crystallize the majority responsible for the decisions. He will be the one to define it so that this majority will coincide with the simple juxtaposition of two votes on the same side.

Obviously, if the two representatives of the parties agree, it is useless for the third member to give a verdict. But in this case there would be no dispute, the latter having been settled by the agreement of those who would then be really agents for the Governments reaching a compromise.

On the other hand, it is equally certain that the concept of minority ceases to have any value by eradicating the relative character which may be attributed to it and to the corresponding concept of majority, the latter being transformed into unanimity.

11. —One finds in the records of international law a series of cases in which an arbitration organ saw its initial composition disturbed by the disappearance of one member. either by accidental circumstances or because of the action of that member or of the State which had appointed him, action taken either openly or indirectly.

The practice of keeping in function such a tribunal is justified by the desire not to put wrongful conduct at an advantage. The same solution must prevail, therefore, in the case of absence of a member ab initio, particularly if his absence is not due to circumstances [p 253] beyond the control of the party which should have appointed him.

In the first case, the majority is also formed by the remaining members. There is no opposition left, as the organ comprises three members. One is not confronted either by a situation different from the one envisaged by the parties, or even by a revision of the treaty with a view to obtain an abstention from the remaining judges and thereby the closure of the tribunal. In fact, it is only the natural consequence of a specific sanction required by the nature of the obligation disregarded by one of the parties.

There is no essential difference between the two cases. If one does not wish to see form overrule substance, one is compelled to adopt the same solution ubi eadem ratio, ibi idem jus.

An excessive respect for mere formulæ should not result in the extension of a mere concept such as, for instance, the one of the "fundamental procedural order" which has sometimes been put forward to give exceptional importance to the time of the constitution of an organ, to the detriment of social exigencies and for the exclusive benefit of those who are forgetful of their promises, whether they be individuals or States.

12.—-The most critical moment for a deliberative organ is not the time of its organization, but the time when, fulfilling its purpose, it makes a decision which alone will carry legal effect in casu.

The organ which loses a member without being able to replace him remains, from another angle, in a more serious position than the one which started its work with an incomplete bench, but in the hope or, at least, with the possibility that a change in the attitude of the defaulting State before the end of its work would permit its completion. It is impossible ever to foresee with certainty the maintenance or the abandonment of a diplomatic position.

Excessive liking for abstractions should therefore not lead to the rejection of the extension of a reasonable solution accepted without reservations in international law, such as that of the func-tioning of an incomplete tribunal, not only in an analogous case, but also in a case where this application would be justified for major reasons.

It is true that the work of these commissions might not bring complete results because decisions will not be made in case of disagreement between the two members. But the same result would occur if one member had disappeared during the term of office of the tribunal.

The commission would at least fulfil part of its purpose in deciding cases where agreement was complete. This would give some satisfaction to the principle of effectivity. [p 254]

13.—It is also necessary to remember the distinction between the notion of composition of an organ and of quorum permitting its operation.
Although consisting of fifteen members, the International Court of Justice could not, for instance, start functioning before some of the judges have been elected (Statute, Article 12, paragraph 3), or before all have accepted their election ?

14.—It may be observed that the member most qualified to express the views of the recalcitrant State might, in voting, modify the opinion of the third member. That is an indisputable disadvantage, but it is quite as serious as some others which continually occur in cases of wrongful admission by a party and which, for example, lead to the absence of any definite expression of the questions to be decided, to the absence of rules of procedure and of substance, and even to the insufficiency of evidence.

All this, however, constitutes a large part, if not the main part, of the sanction imposed upon the defaulting State. It acts as an injunction to bring about its consent. The same can be said of the kind of "veto" which the party represented on the commission will have in practice. This "veto" results exclusively from the default of the other party which has an easy means of suppressing it at any time by filling the empty seat.

15.—None of these obstacles has been sufficient to set aside procedure by default in similar circumstances in international law.

Absence of means of defence and absence of counsel is far more serious than the absence of participation in the judgment of a national member, to whom even the Statute of the International Court of Justice has attributed a purely optional character. Ali these consequences, however, are also accepted as a new sanction against the party which does not appear in Court.

In my opinion, the absence of the "representative" of one of the parties is no reason for suspecting the third member, whose function is not in any way changed thereby. Whether he acts with one or two members, he remains free to have the last word.

In case of default, Article 53 of the Statute contents itself with a recommendation to the International Court to exercise a certain ex officio control, which it has already had occasion to exert. There is nothing to prevent organs functioning in an incomplete way from taking their guidance from the same principle when they are about to make their decisions. They have every reason to do so.

(Signed) Ph. Azevedo.



[p 255]

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 1.

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 3b.]

[p 256] [Note—See Folder 4 for :
Telegram dated 4 April, 1949, from the Government of the Republic of Hungary to the President of the General Assembly A/831

and
Telegram dated g April, 1949, from the Government of the People's Republic of Bulgaria to the Secretary-General
A/832 and Corr. 1.]

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 4 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

[p 257] 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. 1
Australia: draft resolution
A/AC.24/52

Chile: amendment to the Bolivian draft resolution (A/AC.24/51/Corr. 1)
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. 1)
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.
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.]
[p 258] 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

Letter dated 19 November, 1949, from the representative of the United Kingdom of Great-Britain and Northern Ireland to the Secretary-General of the United Nations (with annex)

Letter dated 6 January, 1950, from the representative of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General of the United Nations (with annexes)

Note dated 6 January, 1950, from the representative of Canada to the Secretary-General of the United Nations (with annexes)

Letter dated 6 January, 1950, from
the representative of the United
States of America to the Secretary-General of the United Nations (with
annexes)

Letter dated 17 February, 1950, from
the representative of Canada to the
Secretary-General of the United
Nations (with annex)

Letter dated 17 February, 1950, from the representative of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General of the United Nations (with annexes)

[p 259]Letter dated 17 February, 1950, from the representative of United States of America to the Secretary-General of the United Nations (with annexes)

Letter dated 20 February, 1950, from the representative of the United Kingdom of Great-Britain and Northern Ireland to the Secretary-General of the United Nations (with annex)

Letter dated 29 April, 1950, from the representative of Canada to the Secretary-General of the United Nations (with annexes)

Letter dated 28 April, 1950, from the representative of the United Kingdom of Great-Britain and Northern Ireland to the Secretary-General of the United Nations (with annexes)

Letter dated 28 April, 1950, from the representative of the United States of America to the Secretary-General of the United Nations (with annexes)

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.]
[p 260] 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. 1
5th meeting.

Folder 11.
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

[p 261] Australia: amendment to the draft resolution proposed by Bolivia, Canada and the United States of America (A/AC.31/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.31/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

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.]