26 May 1959

 

General List No. 35

 
     

international Court of Justice

     
 

Aerial Incident of July 27th 1955

 
     

Israel

 

v. 

Bulgaria

     
     
 

Judgment

 
     
  Return Home
 
 
     
     
 
BEFORE: President: Klaestad;
Vice-President: Zafrulla Khan;
Judges: Basdevant, Hackworth, Winiarski, Badawi, Armand-Ugon, Kojevnikov, Sir Hersch Lauterpacht, Moreno Quintana, Cordova, Wellington Koo, Spiro-poulos, Sir Percy Spender;
Judges ad hoc: Goitein, Zourek
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1959.05.26_aerial_incident.htm
   
Citation: Aerial Incident of July 27th 1955 (Isr. v. Bulg.), 1959 I.C.J. 127 (May 26)
Represented By: Israel: Mr. Shabtai Rosenne, Legal Adviser to the Ministry for Foreign Affairs,
as Agent;
assisted by
Mr. M. Shneerson, Minister Plenipotentiary, Embassy of Israel, Paris;
Mr. J. H. Lazarus, Assistant to the Attorney-General, Ministry of Justice;
Mr. F. Landau, Assistant to the State-Attorney, Ministry of Justice;
Mr. T. Meron, Assistant to the Legal Adviser, Ministry for Foreign Affairs, as Counsel;

Bulgaria: Dr. Nissim Mévorah, Professor of Civil Law at the University of Sofia, Adviser to the Ministry for Foreign Affairs, as Agent;
assisted by
M. Evgueni Kamenov, Envoy Extraordinary and Minister Plenipotentiary of Bulgaria in France, as Counsel;
M. Pierre Cot, Professeur agrégé of the Faculties of Law of France, and
M. Marc Jacquier, of the Bar of the Paris Court of Appeal, as Advocates.

 
     
 
 
     
 

[p.127]

The Court,

composed as above,

delivers the following Judgment:

On October 16th, 1957, the Minister of Israel to the Netherlands handed to the Registrar an Application by the Government of Israel, [p 129] dated October 9th, 1957, instituting proceedings before the Court against the Government of the People's Republic of Bulgaria with regard to the destruction, on July 27th, 1955, by the Bulgarian anti-aircraft defence forces, of an aircraft belonging to El Al Israel Airlines Ltd.

The Application invoked Article 36 of the Statute of the Court and the acceptance of the compulsory jurisdiction of the Court by Israel, on the one hand, in its Declaration of October 3rd, 1956, replacing the previous Declaration of September 4th, 1950, and by Bulgaria, on the other hand, on July 29th, 1921. In accordance with Article 40, paragraph 2, of the Statute, the Application was communicated to the Government of the People's Republic of Bulgaria. In accordance with paragraph 3 of the same Article, the other Members of the United Nations and the non-Member States entitled to appear before the Court were notified.

Time-limits for the filing of the Memorial and the Counter-Memorial were fixed respectively by Orders of the Court of November 26th, 1957, and January 27th, 1958. The Memorial was filed within the time-limit fixed for this purpose. Within the time-limit fixed for the filing of the Counter-Memorial, the Government of the People's Republic of Bulgaria filed preliminary objections to the jurisdiction of the Court. On December 17th, 1958, an Order, recording that the proceedings on the merits were suspended under the provisions of Article 62 of the Rules of Court, granted the Government of Israel a time-limit expiring on February 3rd, 1959, for the submission of a written statement of its observations and submissions on the preliminary objections. The written statement was filed on that date and the case became ready for hearing in respect of the preliminary objections.

Mr. Justice Goitein, of the Supreme Court of Israel, and M. Jaroslav Zourek, member of the International Law Commission of the United Nations, were respectively chosen, in accordance with Article 31, paragraph 3, of the Statute, to sit as Judges ad hoc in the present case by the Government of Israel and the Government of Bulgaria.

On March 16th, 17th, 18th, 19th, 23rd, 24th, 25th and 26th and on April 1st, 2nd and 3rd, 1959, hearings were held in the course of which the Court heard the oral arguments and replies of M. Mevorah, Agent, M. Kamenov, Counsel, and M. Cot, Advocate, on behalf of the Government of the People's Republic of Bulgaria, and of Mr. Rosenne, Agent, on behalf of the Government of Israel.

In the course of the written and oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Israel, in the Application:
"That it may please the Court:

(a) Subject to the presentation of such written and oral pleadings as the Court may direct, to adjudge and declare that the People's Republic of Bulgaria is responsible under international law for [p 130] the destruction of the Israel aircraft 4X-AKC on 27 July 1955 and for the loss of life and property and all other damage that resulted therefrom;

(b) To determine the amount of compensation due from the People's Republic of Bulgaria to Israel;

(c) In exercise of the power conferred upon it by Article 64 of the Statute of the Court, to decide that all costs and expenses incurred by the Government of Israel be borne by the Government of the People's Republic of Bulgaria."

On behalf of the same Government, in the Memorial:

"I. On the first petition of the Application instituting Proceedings:


Whereas units of the armed forces of Bulgaria opened fire on 4X-AKC and shot it down and destroyed it, killing all its occupants, as has been admitted by the Government of Bulgaria;

And whereas the Government of Bulgaria has furthermore admitted that in so doing its armed forces displayed a certain haste and did not take all the necessary measures to compel the aircraft to land, and has stated that it would identify and punish the culpable persons and pay compensation;

And whereas such action was in violation of international law;

May it please the Court To judge and declare

That Bulgaria is responsible under international law for the destruction of Israel aircraft 4X-AKC, on 27 July 1955, and for the loss of life and property and all other damage that resulted therefrom.

II. On the second petition of the Application instituting Proceedings:

(a) Whereas the Government of Israel has established that the financial loss incurred by the persons whose cause is being adopted by it amounts to the sum of U.S. Dollars 2,559,688.65;

May it please the Court

To give judgment in favour of the claim of the Government of Israel and fix the amount of compensation due from Bulgaria to Israel at U.S. Dollars 2,559,688.65;
(b) Whereas the Government of Israel has stated that a declaration by the Court regarding the international responsibility of Bulgaria, as contained in Submission No. I, would be sufficient satisfaction and that it was waiving any further claim to reparation;

And whereas, nevertheless, the Government of Israel has asked the Court to take note of the failure of the Government [p 131] of Bulgaria to implement its undertaking to identify and punish the culpable persons;

May it please the Court

To place the foregoing on record.

III. On the third petition of the Application instituting Proceedings:

May it please the Court

(a) To judge and declare

that the expenses incurred by the Government of Israel in preparing this claim, assessed at I £ 25,000, be borne by the Government of Bulgaria.

(b) To decide

that the costs of the Government of Israel in this case shall be borne by the Government of Bulgaria.

IV. And further to judge and declare that the sum awarded under Submission No. 11(a), with interest at six per cent per annum from 27 July 1955 until the date of payment, together with the expenses and costs incurred in this case, shall be paid by the Government of Bulgaria to the Government of Israel in Israel."

On behalf of the People's Republic of Bulgaria in the Preliminary Objections (communications of December 4th and 8th, 1958):

"May it please the Court,

Whereas Article 36, paragraph 5, of the Statute of the International Court of Justice is inapplicable in regard to the People's Republic of Bulgaria,

Whereas the International Court of Justice is without jurisdiction to adjudicate on the Application of the Government of Israel since the latter submits to the Court a dispute which relates to situations and facts that arose prior to the alleged acceptance of the compulsory jurisdiction of the International Court of Justice by the People's Republic of Bulgaria,

For these reasons and all others which may be presented or which the Court should consider it appropriate to add thereto or to substitute therefor,

To adjudge and declare

That the Court is without jurisdiction in the case concerning the aerial incident of July 27th, 1955, and also

That the Application filed on October 16th, 1957, by the Government of Israel against the Government of the People's Republic of Bulgaria is inadmissible;

In the alternative,

May it please the Court,

Whereas the State of Israel can act in defence of its nationals only and whereas the damage in respect of which it seeks reparation [p 132] was for the most part suffered by non-Israel insurance companies,

Whereas the dispute referred to the International Court of Justice by the Israel Government is subject to the exclusive jurisdiction of the People's Republic of Bulgaria; and whereas moreover it falls in any event essentially within the domestic jurisdiction of Bulgaria,

Whereas the Government of Israel has not exhausted the remedies available in the Bulgarian courts before applying to the Court,

For these reasons and all others which may be presented or which the Court should consider it appropriate to add thereto or to substitute therefor,

To adjudge and declare that the Application filed on October 16th, 1957, by the Government of Israel against the Government of the People's Republic of Bulgaria is inadmissible."

On behalf of the Government of Israel, in its Written Observations on the Preliminary Objections:

"May it please the Court,

Rejecting all Submissions to the contrary,

To dismiss the Preliminary Objections, and

To resume the proceedings on the merits."

On behalf of the Government of the People's Republic of Bulgaria, Submissions deposited in the Registry on March 20th, 1959, after the first oral presentation of that Government's case:

"May it please the Court,

On the First Preliminary Objection,

Whereas the Declaration of August 12th, I92r, by which the Kingdom of Bulgaria had accepted the compulsory jurisdiction of the Permanent Court of International Justice and which formed part of the Protocol of Signature of the Statute of that Court, ceased to be in force on the dissolution of the Permanent Court, pronounced by the Assembly of the League of Nations on April 18th, 1946;

Whereas that Declaration was therefore no longer in force on the date on which the People's Republic of Bulgaria became a party to the Statute of the International Court of Justice; and whereas it cannot accordingly be regarded as constituting an acceptance of the compulsory jurisdiction of the International Court of Justice, by virtue of Article 36, paragraph 5, of the Statute of that Court,

For these reasons,

To adjudge and declare that the Court is without jurisdiction to adjudicate upon the Application of the Government of Israel relating to the aerial incident of July 27th, 1955. [p 133]

On the Second Preliminary Objection,

Whereas the dispute referred to the Court relates to situations or facts prior to the alleged acceptance of the compulsory jurisdiction of the International Court of Justice which is said to result from the accession of the People's Republic of Bulgaria to the Statute of that Court on December 14th, 1955;

Whereas the Government of Israel, in accepting the compulsory jurisdiction of the International Court of Justice, excluded disputes prior to the date of its submission to that compulsory jurisdiction;

Whereas, on the basis of reciprocity, the Government of the People's Republic of Bulgaria cannot, in any event, be regarded as having accepted the compulsory jurisdiction of the International Court of Justice in respect of facts prior to December 14th, 1955.

For these reasons,

To adjudge and declare that the Court is without jurisdiction to adjudicate upon the Application of the Government of Israel relating to the aerial incident of July 27th, 1955.

On the Third Preliminary Objection,
Whereas the Government of Israel can act in defence of its nationals only; whereas it does not dispute that all or part of the damage in respect of which it seeks compensation was covered by insurance; whereas it provides no evidence of the Israel nationality of the insurers,

For these reasons,

To adjudge and declare that the Government of Israel has no capacity to submit to the Court claims to a right to be indemnified which has been the subject of assignment or subrogation in favour of insurance companies not of Israel nationality.

On the Fourth Preliminary Objection,

Whereas it appears from the Memorial filed on behalf of the Government of Israel that the Application, of which the Court is seised, is based upon action undertaken by the Bulgarian antiaircraft defence armed forces, in the Bulgarian airspace; whereas the dispute, which has arisen as a result of such action, does not fall within any of the categories referred to in Article 36, paragraph 2, of the Statute of the International Court of Justice, but, on the contrary, falls within the exclusive jurisdiction of the People's Republic of Bulgaria;

Whereas, moreover, this dispute is one 'relating to matters which are essentially within the domestic jurisdiction of the Bulgarian State'; whereas in virtue of reservation '(b)' included by the Government of Israel in its Declaration of Acceptance of the compulsory jurisdiction of the Court—which reservation the Bulgarian Government claims to be entitled to apply in its favour, on the basis of reciprocity—the dispute falls outside the jurisdiction of the International Court of Justice, [p 134]

For these reasons,

To adjudge and declare that the Court is without jurisdiction to adjudicate upon the Application of the Government of Israel relating to the aerial incident of July 27th, 1955.

On the Fifth Preliminary Objection,

Whereas the nationals of Israel whose claims are presented by the Government of Israel have not exhausted the remedies available to them in the Bulgarian courts before applying to the International Court of Justice,

For these reasons,

To adjudge and declare that the claim of the Government of Israel cannot, at the present stage, be submitted to the Court."

On behalf of the Government of Israel, Submissions filed at the hearing of March 26th, 1959:

"May it please the Court,

Rejecting all Submissions to the contrary,

To dismiss the Preliminary Objections, and

To resume the proceedings on the merits."

On behalf of the Government of the People's Republic of Bulgaria, Submissions filed in the Registry on April 2nd, 1959, after the oral reply:

"On the Fifth Preliminary Objection,

Whereas the nationals of Israel whose claims are presented by the Government of Israel had not exhausted the remedies available to them in the Bulgarian courts before the reference by that Government to the International Court of Justice,

For these reasons,

To adjudge and declare that the claim of the Government of Israel cannot, at the present stage, be submitted to the Court."

At the hearing of April 3rd, 1959, at the end of his oral rejoinder, the Agent for the Government of Israel confirmed the formal Submissions set forth in the Written Observations submitted on behalf of his Government.

***
It was stated to the Court that on the morning of July 27th, 1955, the civil Constellation aircraft No. 4X-AKC, wearing the Israel colours and belonging to the Israel Company El Al Israel Airlines Ltd., making a scheduled commercial flight between Vienna, Austria, and Lod (Lydda) in Israel, having, without previous authorization, penetrated over Bulgarian territory, was shot down by aircraft of the Bulgarian anti-aircraft defence forces. After catching fire, the Israel aircraft crashed in flames near the town of [p 135] Petritch, Bulgaria, and all the crew, consisting of seven members, and also the fifty-one passengers of various nationalities were killed.

These facts gave rise to negotiations and diplomatic correspondence between the two Governments which attempted in that way to arrive at a friendly solution. As these diplomatic approaches did not lead to a result which was satisfactory to the Parties to the case, the Government of Israel submitted the dispute to the Court by means of an Application instituting proceedings on October 16th, 1957. Against this Application the Government of the People's Republic of Bulgaria advanced five Preliminary Objections.

The Court will proceed to consider the First Preliminary Objection.

***
The Government of Israel claims to find a basis for the jurisdiction of the Court in the present case by invoking in its Application the fact that "Bulgaria's acceptance of the compulsory jurisdiction was made on 29th July, 1921, on the occasion of the deposit of the instrument of that country's ratification of the Protocol of Signature of the Statute of the Permanent Court of International Justice". In its Memorial, it reproduced the declaration thus invoked under the date of August 12th, 1921, which is the date of its ratification by the Government of the Kingdom of Bulgaria and therefore the date of its entry into force. The Memorial adds: "Bulgaria became a Member of the United Nations on 14 December, 1955 ... when that country's Declaration became applicable to the jurisdiction of the International Court of Justice." While not so stating at the time, though it was thus understood by the Bulgarian Government and explained in the subsequent proceedings, the Government of Israel rested this reference to the 1921 Declaration on Article 36, paragraph 5, of the Statute of the International Court of Justice.

Thus, the Government of Israel relies on two provisions. The first is the Declaration signed on July 29th, 1921, at the same time as the Protocol of Signature of the Statute of the Permanent Court of International Justice, and ratified on August 12th, 1921. This Declaration is in the following terms:

[Translation]

"On behalf of the Government of the Kingdom of Bulgaria, I recognize, in relation to any other Member or State which accepts the same obligation, the jurisdiction of the Court as compulsory, ipso facto and without any special convention, unconditionally."

The second provision is Article 36, paragraph 5, of the Statute of the International Court of Justice, which reads as follows:

"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force [p 136] shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms."

To justify the application of the latter provision to the Bulgarian Declaration of 1921, the Government of Israel relies finally on the fact that Bulgaria became a party to the Statute of the International Court of Justice as a result of its admission to the United Nations, pursuant to Resolution 995 (X) adopted by the General Assembly on December 14th, 1955.

The Government of the People's Republic of Bulgaria denies that Article 36, paragraph 5, of the Statute transferred the effect of the Bulgarian Declaration of 1921 to the jurisdiction of the International Court of Justice. Consequently, its First Preliminary Objection asks that it "may please the Court ... to adjudge and declare that the Court is without jurisdiction to adjudicate upon the Application of the Government of Israel relating to the aerial incident of July 27th, 1955".

The Court has to determine whether Article 36, paragraph 5, of the Statute is applicable to the Bulgarian Declaration of 1921.

The object of Article 36, paragraph 5, is to introduce a modification in the declarations to which it refers by substituting the International Court of Justice for the Permanent Court of International Justice, the latter alone being mentioned in those declarations, and by thus transferring the legal effect of those declarations from one Court to the other. That Article 36, paragraph 5, should do this in respect of declarations made by States which were represented at the San Francisco Conference and were signatories of the Charter and of the Statute, can easily be understood. This corresponds indeed to the very object of this provision. But is this provision meant also to cover declarations made by other States, including Bulgaria? The text does not say so explicitly.

At the time of the adoption of the Statute a fundamental difference existed between the position of the signatory States and of the other States which might subsequently be admitted to the United Nations. This difference is not expressed in the text of Article 36, paragraph 5, but it derives from the situation which that text was meant to regulate, namely, the transfer to the International Court of Justice of declarations relating to the Permanent Court of International Justice which was on the point of disappearing when the Statute was drawn up. The States represented at San Francisco knew what their own position was under the declarations they had made. They were acting with a full knowledge of the facts when they agreed to transfer the effect of those declarations to the compulsory jurisdiction of the new Court and they had the power to do so. These States were not in the same position with regard to the declarations signed by other States. In the case of [p 137] some of these, there might arise the question of the effect of the war, a question which does not appear then to have been considered. In a more general way, the signatory States could not regard as more or less imminent the admission to the United Nations of any of the other States, their admission being possibly preceded by the lapsing of the declarations of some of them; the question which the signatory States were easily able to resolve as between themselves at that time would arise in a quite different form in the future as regards the other States. The existence of these differences militates against a construction extending the effect of Article 36, paragraph 5, to declarations made by States subsequently admitted to the United Nations, on the mere ground that those declarations were in force at the time of the signing of the Charter or of its entry into force.

Article 36, paragraph 5, considered in its application to States signatories of the Statute, effects a simple operation: it transforms their acceptance of the compulsory jurisdiction of the Permanent Court into an acceptance of the compulsory jurisdiction of the International Court of Justice. This was done in contemplation of the dissolution of the old Court and the institution of a new Court, two events which, while not absolutely coincident, were sufficiently close so far as States signatories of the Charter and of the Statute were concerned. The transformation enacted was in their case contemporaneous with this double event. The position was quite different in respect of declarations by non-signatory States, apart from the possibility, which did not in fact materialize, of a non-signatory State's becoming a party to the Statute before the dissolution of the Permanent Court. Subject to this, the operation of transferring from one Court to the other acceptances of the compulsory jurisdiction by non-signatory States could not constitute a simple operation, capable of being dealt with immediately and completely by Article 36, paragraph 5. Such a transfer must necessarily involve two distinct operations which might be separated by a considerable interval of time. On the one hand, old declarations would have had to have been preserved with immediate effect as from the entry into force of the Statute, and, on the other hand, they would have had to be transferred to the jurisdiction of the International Court of Justice, a transfer which could only have been operated by the acceptance by the State concerned of the new Statute, in practice, by its admission to the United Nations. Immediate preservation of the declaration was necessary in order to save it from the lapsing by which it was threatened by the imminent dissolution of the Permanent Court which was then in contemplation. If it were not thus maintained in being, a subsequent transfer of the declaration to the jurisdiction of the new Court could not be effected. Thus, the problem of the transfer of former declarations from one Court to the other, which arose in the case of the acceptances of non-signatory States, was quite different [p 138] from that in the case of acceptances by States signatories of the Charter and of the Statute.

In addition to this fundamental difference in respect of the factors of the problem, there were special difficulties in resolving it in respect of acceptances by non-signatory States. These diffi-culties, indeed, rendered impossible the solution of the problem by the application of Article 36, paragraph 5, as drafted and adopted. Since this provision was originally subscribed to only by the signatory States, it was without legal force so far as non-signatory States were concerned: it could not preserve their declarations from the lapsing with which they were threatened by the impending dissolution of the Permanent Court. Since it could not maintain them in being, Article 36, paragraph 5, could not transfer their effect to the jurisdiction of the new Court as of the date when a State having made a declaration became a party to the Statute. Since these declarations had not been maintained in being, it would then have been necessary to reinstate lapsed declarations, then to transport their subject-matter to the jurisdiction of the International Court of Justice: nothing of this kind is provided for by Article 36, paragraph 5. Thus, the course it would have been necessary to follow at the time of the adoption of the Statute, in order to secure a transfer of the declarations of non-signatory States to the jurisdiction of the new Court, would have had to be entirely different from the course which was followed to achieve this result in respect of the declarations of signatory States. In the case of signatory States, by an agreement between them having full legal effect, Article 36, paragraph 5, governed the transfer from one Court to the other of still-existing declarations; in so doing, it maintained an existing obligation while modifying its subject-matter. So far as non-signatory States were concerned, something entirely different was involved: the Statute, in the absence of their consent, could neither maintain nor transform their original obligation. Shortly after the entry into force of the Statute, the dissolution of the Permanent Court freed them from that obligation. Accordingly, the question of a transformation of an existing obligation could no longer arise so far as they were concerned: all that could be envisaged in their case was the creation of a new obligation binding upon them. To extend Article 36, paragraph 5, to those States would be to allow that provision to do in their case something quite different from what it did in the case of signatory States.

The question of the transfer from one Court to the other of former acceptances of the compulsory jurisdiction is so different, according to whether it arises in respect of States signatories of the Statute or in respect of non-signatory States, that the date of the transfer, which it is a simple matter to determine in the case of signatory States, in spite of the silence on the point of Article 36, paragraph 5, can scarcely be determined in any satis-[p 139]factory way in the case of declarations of non-signatory States. If regard be had to the date upon which a non-signatory State became a party to the Statute by its admission to the United Nations or in accordance with Article 93, paragraph 2, of the Charter, the transfer is then regarded as occurring at a date which might be very distant from the entry into force of the Statute, and this would hardly be in harmony with the spirit of a provision designed to provide for the transition from the old to the new Court by maintaining something of the former regime.

On the point now under consideration, the States represented at San Francisco could have made an offer addressed to other States, for instance, an offer to consider their acceptance of the compulsory jurisdiction of the Permanent Court as an acceptance of the jurisdiction of the International Court of Justice. But, in that case, such an offer would have had to be formulated, and the form of its acceptance and the conditions regarding the period within which it must be accepted would have had to be determined. There is nothing of this kind in Article 36, paragraph 5. When this Article decides that, as between parties to the present Statute, certain declarations are to be deemed to be acceptances of the compulsory jurisdiction of the International Court of Justice, this can be easily understood as meaning that the Article applies to the declarations made by the States which drew it up. Such a form of expression is scarcely appropriate for the making of an offer addressed to other States.

Thus to restrict the application of Article 36, paragraph 5, to the States signatories of the Statute is to take into account the purpose for which this provision was adopted. The Statute in which it appears does not establish the compulsory jurisdiction of the Court. At the time of its adoption, the impending dissolution of the Permanent Court and, in consequence thereof, the lapsing of acceptances of its compulsory jurisdiction, were in contemplation. If nothing had been done there would have been a backward step in relation to what had been achieved in the way of international jurisdiction. Rather than expecting that the States signatories of the new Statute would deposit new declarations of acceptance, it was sought to provide for this transitory situation by a transitional provision and that is the purpose of Article 36, paragraph 5. By its nature and by its purpose, that transitional provision is applicable only to the transitory situation it was intended to deal with, which involved the institution of a new Court just when the old Court was being dissolved. The situation is entirely different when, the old Court and the acceptance of its compulsory jurisdiction having long since disappeared, a State becomes a party to the Statute of the new Court: there is then no transitory situation to be dealt with by Article 36, paragraph 5. [p 140]

***
To the extent that the records of the San Francisco Conference provide any indication as to the scope of the application of Article 36, paragraph 5, they confirm the fact that this paragraph was intended to deal with the declarations of signatory States. Those of non-signatory States, in respect of which special provisions would have been necessary, were not envisaged.

This point had not been dealt with by the Washington Committee of Jurists. A Sub-Committee, sitting on April 13th, 1945, had merely drawn attention to the fact that many nations had previously accepted compulsory jurisdiction under the Optional Clause and added "that provision should be made at the San Francisco Conference for a special agreement for continuing these acceptances in force for the purpose of this Statute". This reference to a special agreement clearly indicated that in order to preserve these acceptances under a new system, the consent of States having made such declaration would be necessary: the contemplating of such an agreement indicated that the Conference could not substitute its decision for that of the States not there represented.

At the San Francisco Conference, the provision which became paragraph 5 of Article 36 was proposed by Sub-Committee D and discussed and adopted by Committee IV/i, on June 1st, 1945. In this Committee, the statements made mainly indicated the preference of many delegations for the Court's compulsory jurisdiction and their regret that it did not appear to be possible to adopt it. As to the meaning to be attributed to the provision which was to become paragraph 5 of Article 36, the Canadian representative said: "In view of the new paragraph ... as soon as States sign the Charter, the great majority of them would be automatically under the compulsory jurisdiction of the Court because of the existing declarations." The representative of the United Kingdom having for his part said that he thought "that some forty States would thereby become automatically subject to the compulsory jurisdiction of the Court", this optimistic estimate was corrected by the Australian representative in the terms thus recorded in the minutes: "He desired to call attention to the fact that not forty but about twenty States would be automatically bound as a result of the compromise. In this connection he pointed out that of the fifty-one States that have adhered to the optional clause, three had ceased to be independent States, seventeen were not represented at the Conference and about ten of the declarations of other States had expired." The representatives of the United Kingdom and of Australia, referring to the meaning which they attached to the paragraph which subsequently became paragraph 5, were indicating the number of [p 141] States to which, in their opinion, this provision would be applicable. The Australian representative, whose statement followed that of the representative of the United Kingdom, set out to correct the latter's estimate of the number of declarations which would thus be affected and, for this purpose, he rejected those of the seventeen States which were not "represented at the Conference". This statement clearly shows that in the view of the Australian representative, paragraph 5 was not intended to be applicable to the declarations of States not represented at the Conference. This statement, though it related to a point in the paragraph of cardinal importance, was not disputed by the representative of the United Kingdom or by any other member of the Committee. The conclusion to be drawn is that, in the view of the members of the Committee, the States not represented at the Conference remained outside the scope of the matter being dealt with by paragraph 5 and that that paragraph was intended to be binding only upon those States which, having been represented at the Conference, would sign and ratify the Charter and thus accept the Statute directly and without any probable delay.

This is confirmed by the report of Committee IV/I, approved by the Committee on June nth, 1945. The report, having stated that the Committee proposed solutions for certain problems to which the creation of the new Court would give rise, sets out under (a) what is provided in Article 37, under (b) what is provided in paragraph 4 (which was to become paragraph 5) of Article 36, and adds: "(c) Acceptances of the jurisdiction of the old Court over disputes arising between parties to the new Statute and other States, or between other States, should also be covered in some way and it seems desirable that negotiations should be initiated with a view to agreement that such acceptances will apply to the jurisdiction of the new Court. This matter cannot be dealt with in the Charter or the Statute, but it may later be possible for the General Assembly to facilitate such negotiations." Thus a clear distinction was drawn between what could be dealt with by Article 36, paragraph 5, and what could only be dealt with otherwise, that is, by agreement, outside the provisions of the Statute, with the States absent from the San Francisco negotiations. If that did not refer exclusively to the declarations of such States, at least there is no doubt that it did refer to them and that they were principally referred to: the use of the word "acceptances" confirms this, if confirmation is necessary, and this word, which appears once only in the French text, appears twice in the English text of which indeed it is the first word.

This confirms the view that Article 36, paragraph 5, was designed to govern the transfer dealt with in that provision only as between the signatories of the Statute, not in the case of a State in the position of Bulgaria. [p 142]

Finally, if any doubt remained, the Court, in order to interpret Article 36, paragraph 5, should consider it in its context and bearing in mind the general scheme of the Charter and the Statute which founds the jurisdiction of the Court on the consent of States. It should, as it said in the case of the Monetary gold removed from Rome in ig43, be careful not to "run counter to a well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent". (I.C.J. Reports 1954, p. 32.)

Consent to the transfer to the International Court of Justice of a declaration accepting the jurisdiction of the Permanent Court may be regarded as effectively given by a State which, having been represented at the San Francisco Conference, signed and ratified the Charter and thereby accepted the Statute in which Article 36, paragraph 5, appears. But when, as in the present case, a State has for many years remained a stranger to the Statute, to hold that that State has consented to the transfer, by the fact of its admission to the United Nations, would be to regard its request for admission as equivalent to an express declaration by that State as provided for by Article 36, paragraph 2, of the Statute. It would be to disregard both that latter provision and the principle according to which the jurisdiction of the Court is conditional upon the consent of the respondent, and to regard as sufficient a consent which is merely presumed.

***
Even if it should be assumed that Article 36, paragraph 5, is not limited to the declarations of signatory States, the terms of that provision make it impossible to apply it to the Bulgarian Declaration of 1921. The Government of Israel, in order to base the jurisdiction of the Court upon the combined effect of the Bulgarian Declaration of 1921 and Article 36, paragraph 5, of the Statute, has construed that provision as covering a declaration made by a State, which had not participated in the San Francisco Conference, which is not a signatory of the Statute and only became a party thereto much later. The Court will also consider the matter from this angle and accordingly enquire whether the conditions, required by Article 36, paragraph 5, for a transfer from the Permanent Court of International Justice to the International Court of Justice of acceptances of compulsory jurisdiction relating only to the former, are satisfied in the present case and whether the Bulgarian Declaration must therefore "be deemed ... to be an acceptance of the compulsory jurisdiction of the International Court of Justice".

The declarations to which Article 36, paragraph 5, refers created for the States which had made them the obligation to recognize the [p 143] jurisdiction of the Permanent Court of International Justice. At the time when the new Statute was drawn up, it was anticipated —and events confirmed this—that the Permanent Court would shortly disappear and these undertakings consequently lapse. It was sought to provide for this situation, to avoid, as far as it was possible, such a result by substituting for the compulsory jurisdiction of the Permanent Court, which was to come to an end, the compulsory jurisdiction of the International Court of Justice. This was the purpose of Article 36, paragraph 5. This provision effected, as between the States to which it applied, the transfer to the new Court of the compulsory jurisdiction of the old. It thereby laid upon the States to which it applied an obligation, the obligation to recognize, ipso facto and without special agreement, the jurisdiction of the new Court. This constituted a new obligation which was, doubtless, no more onerous than the obligation which was to disappear but it was nevertheless a new obligation.

In the case of a State signatory of the Charter and of the Statute, the date at which this new obligation arises, the date at which this transfer from the jurisdiction of one Court to that of another Court is effected, is not directly determined. It could only be linked to the signing of the Charter by an interpretation somewhat out of keeping with the provisions of Article no of the Charter which, for the date of the entry into force of the Charter and, consequently, of the Statute, have regard to the dates of the deposit of ratifications. Neither of these dates can be taken as fixing the birth of the obligation here under consideration in the case of a State not a signatory of the Charter but subsequently admitted to the United Nations. Until its admission, it was a stranger to the Charter and to the Statute. What has been agreed upon between the signatories of these instruments cannot have created any obligation binding upon it, in particular an obligation to recognize the jurisdiction of the Court.

This was the position of Bulgaria. Article 36, paragraph 5, could not in any event be operative as regards that State until the date of its admission to the United Nations, namely, December 14th, 1955.

At that date, however, the Bulgarian Declaration of 1921 was no longer in force in consequence of the dissolution of the Permanent Court of International Justice in 1946. The acceptance set out in that Declaration of the compulsory jurisdiction of the Permanent Court of International Justice was thereafter devoid of object since that Court was no longer in existence. The legal basis for that acceptance in Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, ceased to exist with the disappearance of that Statute. Thus, the Bulgarian Declaration had lapsed and was no longer in force.

Though the Statute of the present Court could not lay any obligation upon Bulgaria before its admission to the United Nations, and though the Bulgarian Declaration of 1921 had lapsed before [p 144] that date, can Article 36, paragraph 5, nevertheless have had the effect that that Declaration must be deemed as between Bulgaria and Israel to be an acceptance of the compulsory jurisdiction of the International Court of Justice? That depends upon the date to which Article 36, paragraph 5, refers when it speaks of declarations "which are still in force", "four une durée qui n'est -pas encore expirée". In expressing itself thus, Article 36, paragraph 5, neither states nor implies any reference to a fixed date, that of the signature of the Charter and of the Statute, or that of their original entry into force. These were events to which Bulgaria, which became a party to the Statute only as a result of its admission to the United Nations in 1955, was not privy; it would be permissible to have reference to those dates in respect of the application of Article 36, paragraph 5, only if that provision had referred thereto expressly or by necessary implication; nothing of the kind is stated or implied in the text.

There is nothing in Article 36, paragraph 5, to reveal any intention of preserving all the declarations which were in existence at the time of the signature or entry into force of the Charter, regardless of the moment when a State having made a declaration became a party to the Statute. Such a course would have involved the suspending of a legal obligation, to be revived subsequently: it is scarcely conceivable in respect of a State which was a stranger to the drafting of Article 36, paragraph 5. There is nothing in this provision to show any intention of adopting such an exceptional procedure. If there had been such an intention, it should have been expressed by a direct clause providing for the preservation of the declaration, followed by a provision for its subsequent re-entry into force as from the moment of admission to the United Nations: nothing of the kind is expressed in the Statute.

Article 36, paragraph 5, is expressed in a single sentence the purpose of which is to state that old declarations which are still in force shall be deemed as between the parties to the present Statute to be acceptances of the compulsory jurisdiction of the International Court of Justice. The provision determines, in respect of a State to which it applies, the birth of the compulsory jurisdiction of the new Court. It makes that subject to two conditions: (1) that the State having made the declaration should be a party to the Statute, (2) that the declaration of that State should still be in force.

Since the Bulgarian Declaration had lapsed before Bulgaria was admitted to the United Nations, it cannot be said that, at that time, that declaration was still in force. The second condition stated in Article 36, paragraph 5, is therefore not satisfied in the present case. Thus, even placing itself on the ground upon which the Government of Israel bases its claim, the Court finds that Article 36, paragraph 5, is not applicable to the Bulgarian Declaration of 1921. [p 145]

This view is confirmed by the following considerations:

On the one hand, the clear intention which inspired Article 36, paragraph 5, was to continue in being something which was in existence, to preserve existing acceptances, to avoid that the creation of a new Court should frustrate progress already achieved; it is not permissible to substitute for this intention to preserve, to secure continuity, an intention to restore legal force to undertakings which have expired: it is one thing to preserve an existing undertaking by changing its subject-matter; it is quite another to revive an undertaking which has already been extinguished.

On the other hand, Article 36, contrary to the desire of a number of delegations at San Francisco, does not make compulsory jurisdiction an immediate and direct consequence of being a party to the Statute. If Bulgaria, which at the time of its admission to the United Nations was under no obligation of that kind in consequence of the lapse of its Declaration of 1921, were to be regarded as subject to the compulsory jurisdiction as a result of its admission to the United Nations, the Statute of the Court would, in the case of Bulgaria, have a legal consequence, namely, compulsory jurisdiction, which that Statute does not impose upon other States. It is difficult to accept an interpretation which would constitute in the case of Bulgaria such a derogation from the system of the Statute.

In seeking and obtaining admission to the United Nations, Bulgaria accepted all the provisions of the Statute, including Article 36. It agreed to regard as subject to the compulsory jurisdiction of the Court, on the one hand, those States parties to the Statute which had made or would make the declaration provided for by paragraph 2 and, on the other hand, in accordance with paragraph 5, those States which, at the time of their acceptance of the Statute, were bound by their acceptance of the compulsory jurisdiction of the Permanent Court. At the time when Bulgaria sought and obtained admission to the United Nations, its acceptance of the compulsory jurisdiction of the Permanent Court had long since lapsed. There is nothing in Article 36, paragraph 5, to indicate any intention to revive an undertaking which is no longer in force. That provision does not relate to the position of Bulgaria at the time of its entry into the United Nations; Bulgaria's acceptance of the provision does not constitute consent to the compulsory jurisdiction of the International Court of Justice; such consent can validly be given by Bulgaria only in accordance with Article 36, paragraph 2.

Article 36, paragraph 5, cannot therefore lead the Court to find that, by the operation of this provision, the Bulgarian Declaration of 1921 provides a basis for its jurisdiction to deal with the case submitted to it by the Application filed by the Government of Israel on October 16th, 1957. [p 146]

In the circumstances, it is unnecessary for the Court to proceed to a consideration of the other Preliminary Objections to the Application raised by the Government of the People's Republic of Bulgaria.

For these reasons,

The Court,

by twelve votes to four,

finds that it is without jurisdiction to adjudicate upon the dispute brought before it on October 16th, 1957, by the Application of the Government of Israel.

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-sixth day of May, one thousand nine hundred and fifty-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of Israel and the Government of the People's Republic of Bulgaria, respectively.

(Signed) Helge Klaestad,
President.

(Signed) Garnier-Coignet,
Deputy-Registrar.
Vice-President Zafrulla Khan states that he agrees with the Judgment of the Court. Paragraph 5 of Article 36 of the Statute of the Court requires that the State having made a declaration of acceptance of the compulsory jurisdiction of the Permanent Court should be a party to the Statute of the International Court and that the declaration should still be in force. The paragraph is not, by its language, limited in its application to States who became signatories of the Charter of the United Nations, though in actual fact the paragraph did not become applicable to any other State, as no other State, having a declaration still in force, became a party to the Statute of the International Court before the dissolution of the Permanent Court put an end to all declarations accepting its jurisdiction. If Bulgaria, or any other State whose declaration accepting the compulsory jurisdiction of the Permanent Court was still in force, had become a party to the Statute of the International Court before the dissolution of the Permanent Court, paragraph 5 of Article 36 of the Statute of the International Court would have become applicable. [p 147]

Judges Badawi and Armand-Ugon, availing themselves of the right conferred upon them by Article 57 of the Statute, append to the Judgment of the Court statements of their Separate Opinions.

Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender, availing themselves of the right conferred upon them by Article 57 of the Statute, append to the Judgment of the Court a statement of their Joint Dissenting Opinion.

Mr. Goitein, Judge ad hoc, availing himself of the right conferred upon him by Article 57 of the Statute, appends to the Judgment of the Court a statement of his Dissenting Opinion.

(Initialled) H. K.

(Initialled) G.-C.

[p 148]
SEPARATE OPINION OF JUDGE BADAWI

[Translation]

I concur in the operative part of the Judgment and while accepting the grounds on which it is based, restricting the effects of the fiction established by Article 36, paragraph 5, to signatories of the Charter or original Members of the United Nations, I am of opinion that there is a further limitation which ought to be added.

Indeed, in my opinion, only those original Members of the United Nations who had made declarations accepting the jurisdiction of the Permanent Court of International Justice for a definite period of time are included within the scope of Article 36, paragraph 5.

***

But before establishing the correctness of the interpretation according to which an indication of that restriction is to be found in the expression "still in force" and the corresponding expression in the French text "pour une durée qui n'est pas encore expirée", it is desirable to show that the construction of that expression by Israel, as referable to the date of the entry into force of the Charter, apart from the arbitrary character of its selection, encounters an inescapable legal objection.
***

In fact, the date of the entry into force of the Charter has no individual significance. It marks the beginning of the existence of the Charter as an international pact giving rise to rights and obligations in the international sphere. It breathes life into and gives effect to earlier ratifications as well as to subsequent ratifications by signatories of the Charter. But States admitted to the United Nations after that date do not and cannot retroactively assume any obligation going back to that date. All the elements constituting the obligations assumed by them as a consequence of their admission to the United Nations (parties, consent and subject-matter) should be contemporaneous with the date of their admission and it is at that date that their obligations arise.

Accordingly it cannot properly be held that any acceptance is formed—even fictitiously—before a State's admission to the United Nations (failure of consent) or after the dissolution of the Per-manent Court of International Justice (failure of subject-matter). [p 149]

***
In these circumstances, to date back the obligation of Bulgaria, after it had become a Member of the United Nations, to the entry into force of the Charter, as the moment of virtual acceptance, would be to confer upon that fixed and absolute date the magical effect of giving to a declaration of acceptance, made by a State which was not a party to the Charter at the time of the signature, an existence independent of its author.

An interpretation of this kind, which disregards the essential co-existence in an obligation of consent (real or fictitious), subject-matter and parties, and separates these elements giving to each a separate and distinct existence, is clearly inadmissible.

***
What then is meant by the expression "still in force"? It has the same meaning as the corresponding expression in the French text "pour une durée qui nest pas encore expirée". The difference between the two texts is merely apparent and formal. In fact, the expression "still in force" does not refer to a given date but implies a period of time. It relates to any moment within the duration of a declaration of acceptance and thus corresponds to the French expression "qui n'est pas encore expirée".

The meaning of the two expressions "still in force" and "pour une durée qui n'est pas encore expirée" in the English and French texts of Article 36, paragraph 5, having been thus defined, it becomes a simple matter to define the intentions of the authors of the Charter and to determine the interpretation of that provision.

It is known that the provision arose out of a desire to reconcile the views of those in favour of the compulsory jurisdiction of the new Court, with those who wished to retain the optional clause, by the transfer to the new Court of declarations of acceptance of the jurisdiction of the Permanent Court of International Justice.

In these circumstances, the first problem which arises is to determine which declarations were thus to be transferred.
***

If all declarations were to be transferred, including those made for a certain time and those made unconditionally (that is without any time-limit), that would have required an absolute formulation from which any concept of duration would have been excluded.

But any such absolute form would have done violence to the intentions of States which had made declarations with a time limitation since their acceptance of the Permanent Court of International Justice would have been transferred to the International Court without a time-limit. [p 150]

To cover the two categories of declarations, while continuing to respect the desires of States which had accepted with a time-limit, a double and comparatively complicated formula would have been necessary.

The authors of the Charter preferred to deal only with the category of declarations containing a time limitation, as is shown by the wording which they adopted which is as categorical as it could be both in the French text "four la durée restant à courir" and in the English text "for the period which they still have to run".

This choice was, moreover, justified by the fact that, according to all the writers, the majority or the greater number of States which accepted the jurisdiction of the Court belonged to that category of declarations and, furthermore, because acceptances without limitation of time, apart from the fact that they constituted in the beginning an unevolved form of the optional clause which soon fell into disuse in the subsequent practice of States, are more closely linked to the existence of the Permanent Court of International Justice. Indeed the absence of the independent and additional time factor postulates the termination of the acceptance as soon as the subject-matter of the acceptance ceases to exist or is destined to cease to exist.

The Bulgarian Declaration of 1921 being unconditional, that is without any time-limit, could therefore not have been transferred to the International Court of Justice even if the provision of Article 36, paragraph 5, had not to be restricted to signatories of the Charter.

***

But, quite apart from any question of the construction of paragraph 5 of Article 36, there is an organic consideration which peremptorily excludes the possibility of giving any effect to the Bulgarian declaration.

Bulgaria was, at the time of the San Francisco Conference, an enemy country. But when it was decided to establish a new Court, this decision was taken on the declared ground that if it had been decided merely to reinstate the old Permanent Court of International Justice, the enemy States which had signed the 1920 Statute would automatically have been parties to the Statute of the Court, a consequence regarded as shocking and one which the United Nations were determined to avoid.

In these circumstances, it would be contrary to the intentions manifestly revealed that a fiction established by Article 36, paragraph 5, should remain dormant to be subsequently applied to a State whose admission to the United Nations is characterized by an intentional interruption between the old Covenant of the League of Nations and the Protocol of the Permanent Court of [p 151] International Justice and the declarations relating to it, on the one hand, and the Charter and the Statute of the International Court of Justice on the other hand.

The Treaty of Peace concluded with Bulgaria, which effaced the latter's enemy status, and Bulgaria's admission to the United Nations under Article 4 of the Charter, constitute for Bulgaria a new career so far as both the Charter and the Statute are concerned, to which any provision linking the past with the present must be extraneous.

(Signed) A. Badawi.

[p 152]
SEPARATE OPINION OF JUDGE ARMAND-UGON

[Translation]

Whilst concurring in the Judgment of the Court, I feel bound to state the grounds which impel me to do so by a different reasoning.

1. The First Preliminary Objection raised by the Government of Bulgaria to the Application of the Government of Israel is based on paragraph 5 of Article 36 of the Statute of the Court. The question is whether this paragraph is applicable to the Declaration signed on August 12th, 1921, by the Minister for Foreign Affairs of the Kingdom of Bulgaria. The interpretation of this provision is therefore the question which arises for the Court. The text of the provision is as follows:

"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms."

The aforementioned Bulgarian Declaration is in the following terms:

[ Translation]

"On behalf of the Government of the Kingdom of Bulgaria, I recognize, in relation to any other Member or State which accepts the same obligation, the jurisdiction of the Court as compulsory, ipso facto and without any special convention, unconditionally."

2. In its Advisory Opinion regarding the Competence of the General Assembly for the admission of a State to the United Nations, the Court laid down and recalled certain rules applicable to the interpretation of the Charter which are also valid in respect of the interpretation of the Statute of the Court, which is annexed to the Charter:

"... the first duty [said the Court] of a tribunal which is called upon to interpret and apply the 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 parties really did mean..." (I.C.J. Reports 1950, p. 8.) [p 153]

Consequently, elements for the interpretation of paragraph 5 must in the first place be sought in the text itself, and it is only if those elements are insufficient that reliance may be placed upon elements extraneous to the text. When a text is clear, competence to interpret must be confined to the text itself.

3. Paragraph 5 must be construed restrictively.

In the first place, because that paragraph lays down an exception to the manner of acceptance of the Optional Clause, normally effected by means of a unilateral declaration, as indicated in paragraph 2 of Article 36 of the Statute.

The system of acceptance of the Optional Clause is dominated and governed by a principle adopted in the present Statute and already recognized by the old Statute. That principle is that such acceptance is always optional and particular and not compulsory and general, i.e. in no case can the jurisdiction of the Court be imposed upon a State by other States. Adherence by a government to the Optional Clause constitutes a political decision.

Paragraph 5 makes provision for a collective and automatic regime of acceptance of the jurisdiction of the Court in respect of certain States bound by the Statute of the Permanent Court of International Justice.

This paragraph therefore constitutes a derogation, from the general law in the matter of acceptance of the Optional Clause, for it regards certain States having made certain declarations under Article 36 of the old Statute as having accepted the jurisdiction of the new Court on the basis of their former declarations. Such States are therefore bound by the jurisdiction of the International Court of Justice without their having made any voluntary and unilateral declaration. The recognition of the jurisdiction of the Court which follows from paragraph 5 must be confined to the express terms of the paragraph and may not be extended, by means of interpretation, to other cases not included in this provision.

Furthermore, the paragraph in question assumes the form of a legal fiction—to a certain extent an empirical, and purely technical, legal solution; this solution was devised in order to safeguard certain clearly defined interests. When the law is expressed in such a manner, its interpretation must not exceed the limits imposed by the legal formula; the interpretation must be contained in the letter of the text itself: any proposal of an extensive interpretation must here be rejected.

4. A sound interpretation of paragraph 5 must have regard primarily and essentially for its precise text, in order that its content may be ascertained.

It is a well-known fact that declarations accepting the Optional Clause of the Permanent Court of International Justice and of the International Court of Justice may be of two kinds: declarations [p 154] of acceptance without a fixed period of time or fixed term, the effects of which are immediate and for ever, and declarations of acceptance with a fixed period of time or fixed term, which produce effects only for the period fixed in them by the declarant State. These different ways of accepting the Optional Clause were naturally in the minds of the draftsmen of paragraph 5. The text of this paragraph refers only to declarations which are "pour une duree qui n'est pas encore expiree" (for a period which has not yet expired) and which involve acceptance of the jurisdiction of the International Court of Justice "for the period which they still have to run". These two expressions clearly relate to declarations made for a certain time and refer to legal instruments which expire after a fixed period. The two expressions would have no reasonable meaning if it were sought to apply them to declarations which were made without a time limitation and in respect of which there was therefore no "period which they still have to run." The slight drafting difference between the English and French texts of paragraph 5 of Article 36 does not invalidate this interpretation of the text, in the two languages. It is clear that the only declarations referred to in the paragraph are declarations with a fixed time-limit.

The paragraph in question does not therefore contemplate declarations made without a time-limit, i.e. declarations which do not have a period of time to run. To assert that an obligation has "a period still to run" necessarily presupposes that the obligation will expire on a certain date.

The fact that paragraph 5 refers to declarations made for a certain time involves the exclusion of other declarations which have no fixed term.

In providing for the preservation of certain declarations relating to the jurisdiction of the Permanent Court of International Justice, paragraph 5 did not include the declaration of the Kingdom of Bulgaria, signed on August 12th, 1921, which accepted the jurisdiction of that Court "unconditionally" and without any fixed term, as was permissible under paragraph 3 of Article 36 of the old Statute.

The very careful drafting of paragraph 5, which draws a distinction between the various categories of declarations then in existence, avoided the situation in which States having made declarations without a time-limit would have been permanently bound by the jurisdiction of the International Court of Justice.

This is a case for the application of the old rule: bene indicat qui bene distinguit.

To accept the view that full effect ought to be given to paragraph 5 in respect of all declarations, without distinguishing between those which have no fixed period and those which do, would lead to binding Bulgaria to the Optional Clause definitively in respect of all disputes falling within this undertaking and [p 155] without any limitation of time. This cannot have been the will which that paragraph purported to express and to attribute this meaning to it would go beyond the limits of its restrictive text. It cannot be held that the legal fiction embodied in this provision can be so extended for it wou?d then manifestly go beyond the content of its formal terms. To impose upon Bulgaria such an undertaking in the matter of jurisdiction which would affect Bulgaria in perpetuity would require a rule leaving no doubt on this point. The text of paragraph 5, however, does not involve such grave consequences; the text must therefore be re-established in its literal meaning and no consideration extraneous to its wording can be allowed to prevail. The legal provision which is formulated in clear terms must be applied without adding anything to, or without taking anything from, it.

It should be observed that the practical purpose which paragraph 5 of Article 36 sought to achieve was none other than to facilitate the immediate exercise of the compulsory jurisdiction of the new Court; this was amply assured by the declarations having a fixed term. It is not permissible to indulge in extensive interpretation where there is nothing to require such an interpretation. The clear and precise consequences of a text are none other than those intended by that text; to seek to attribute other consequences to it presupposes an unjustified modification of the text.

This argument was not discussed in the oral proceedings; there is, however, nothing to prevent the argument being upheld, in accordance with the well-known principle applied by international courts in procedural matters, that the Court may proprio motu seek and select the legal basis for its decision on the final submissions of the Parties—iura novit curia.

***
Consequently, it cannot be considered that paragraph 5 refers to the Bulgarian Declaration;

I should have desired that the Court base its Judgment solely on the grounds which have just been set out in summary form. The Court has preferred a different formulation although it has not rejected the interpretation set out in the present Opinion.

(Signed) Armand-Ugon.

[p 156]
JOINT DISSENTING OPINION BY JUDGES SIR HERSCH LAUTERPACHT, WELLINGTON KOO AND SIR PERCY SPENDER

Paragraph 5 of Article 36 of the Statute of this Court provides as follows:

“Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

On 29th July, 1921, Bulgaria accepted unconditionally for an unlimited period the jurisdiction of the Permanent Court of International Justice under Article 36, paragraph 2, of the Statute of that Court. On 14th December, 1955, Bulgaria became a Member of the United Nations and a party to the Statute of this Court. According to paragraph 5 of Article 36, as cited above, the following two conditions must be fulfilled for the transfer to the International Court of Justice of the declarations of acceptance made with respect to the Permanent Court: (1) the declarant State must become a party to the Statute of the International Court of Justice; (2) its declaration must be "still in force", that is to say, the period for which it has been made must not have expired. By virtue of these conditions the obligations of the Declaration made by Bulgaria on 29th July, 1921, were transferred to the International Court of Justice on 14th December, 1955, when she became a party to the Statute of the International Court of Justice. On that day, paragraph 5 became applicable to Bulgaria. We are of the view that, so far as that provision is concerned, the Court, contrary to the conclusions of the First Preliminary Objection of the Government of Bulgaria, is competent to adjudicate upon the application of the Government of Israel brought before the Court in reliance upon its declaration of acceptance of 17th October, 1956.

To the express conditions, as stated, of paragraph 5 of Article 36 of the Statute, the present Judgment of the Court adds two further conditions: (1) the declarant State must have participated in the Conference of San Francisco; (2) the declarant State must have become a party to the Statute of this Court prior to the date of the dissolution of the Permanent Court, namely, prior to 18th April, 1946. As neither of these two conditions were fulfilled in the case of Bulgaria the Court has held that the obligations of her Declaration of Acceptance made in 1921 were not transferred to the International Court of Justice when in 1955 she became a party to its Statute and, [p 157] therefore, that the Court has no jurisdiction by reference to that declaration. We regret that we are compelled to dissent from the Judgment of the Court based on a text of an article of the Statute thus amended and amplified.

***
The First Preliminary Objection of the Government of Bulgaria as advanced in the written Preliminary Objections and during the oral hearing is based exclusively on the contention that the Bulgarian Declaration of Acceptance of 1921 had finally and irrevocably lapsed on 18th April, 1946, namely, on the date of the dissolution of the Permanent Court of International Justice, and that it cannot therefore accurately be maintained that it was "still in force" when Bulgaria became a party to the Statute by virtue of her admission to the United Nations.
The principal argument put forward in this connection by the Government of Bulgaria and admitted by the Court was that, as the Bulgarian Declaration of Acceptance of 1921 was indissolubly linked with the Statute of the Permanent Court, it ceased to exist with the dissolution of that Court on 18th April, 1946, unless prior to that date the declaring State had become a party to the Statute of the International Court of Justice. According to that contention the words "which are still in force" were intended to cover not the question of the expiration of the time for which the Declaration was made but an altogether different matter, namely, the contingency of the dissolution of the Permanent Court. On that interpretation the declarations of States which became parties to the Statute subsequent to 18th April, 1946, ceased to be in force with the result that subsequent to that date they were no longer covered by paragraph 5 of Article 36. It is by reference to these asserted effects of the dissolution of the Permanent Court that the Government of Bulgaria has advanced the contention that the words "which are still in force" do not possess the meaning normally attributed to them in relation to the validity of international undertakings. Ordinarily these- words refer to instruments which have not come to an end in consequence of either denunciation or termination as the result of the lapse of the period provided in the instrument.

Upon that text of paragraph 5 of Article 36 the principal contention of the Government of Bulgaria engrafted a new text. The Government of Bulgaria contended, in effect, that the Court must omit from the text of Article 36, paragraph 5, the words "which are still in force" and replace them by other words. It was contended that the Court must read the relevant part of Article 36, paragraph 5, as follows: "Declarations made under Article 36 of the Statute of the Permanent Court shall be deemed as between the [p 158] parties to the present Statute who have become parties thereto prior to the dissolution of that Court to be acceptances of the compulsory jurisdiction of the International Court of Justice..." We are unable to accept that emendation of a clear provision of the Statute. We are unable to do so for two reasons: The first is that the interpretation thus advanced is contrary to the clear terms of paragraph 5; the second is that that interpretation is contrary to the manifest purpose of that provision. We will now examine separately these two aspects of the interpretation of paragraph 5.

***

The essential issue arising out of the First Preliminary Objection of Bulgaria is whether the Bulgarian Declaration of 29th July, 1921, accepting the compulsory jurisdiction of the Permanent Court of International Justice is still valid and in force in the sense of Article 36, paragraph 5, of the Statute of this Court. The issue is one of determining the true meaning of that paragraph, both in its own context and in that of the Statute and the Charter of the United Nations.

While the conclusions of the present Opinion are based on the text of Article 36, paragraph 5, it is useful to give an account, by reference to the avowed purpose of that provision, of the historical background of the creation of the International Court of Justice.

Although the establishment of the International Court of Justice and the dissolution of the Permanent Court were two separate acts, they were closely linked by the common intention to ensure, as far as possible, the continuity of administration of international justice. In its Resolution of April 18th, 1946, the Assembly of the League of Nations made express reference to Article 92 of the Charter of the United Nations providing for the creation of an International Court of Justice as the principal judicial organ of the United Nations and to the Resolution of the Preparatory Commission of the United Nations of December 18th, 1945, which declared that it would welcome the taking of appropriate steps by the League of Nations for the purpose of dissolving the Permanent Court.

The dissolution of the Permanent Court was not an ordinary act of liquidation whereby everything connected with that Court disappeared as a consequence of the termination of its existence. While various considerations urged the dissolution of the Permanent Court and the creation of the International Court of Justice, there was general agreement as to the substantial identity of these two organs. In particular, every effort was made to secure continuity in the administration of international justice. In the Resolution adopted by the Permanent Court at its final session at The Hague at the end of October 1945, it is stated: "The Permanent [p 159] Court of International Justice attaches the greatest importance to the principle of continuity in the administration of international justice. Accordingly, it desires to do everything possible to facilitate the inauguration of the International Court of Justice, which was referred to at the San Francisco Conference as the 'successor' to the present Court." (I.C.J. Yearbook, 1946-1947, p. 26.) It is not without significance that the International Court of Justice was inaugurated at The Hague on April 18th, 1946—one day before the Resolution of the League of Nations dissolving the Permanent Court took effect. Previously, the Report of Committee 1 of Commission IV on Judicial Organization of the Conference of San Francisco had stated as follows:

"The creation of the new Court will not break the chain of continuity with the past. Not only will the Statute of the new Court be based upon the Statute of the old Court but this fact will be expressly set down in the Charter. In general, the new Court will have the same organization as the old, and the provisions concerning its jurisdiction will follow very closely those in the old Statute... To make possible the use of precedents under the old Statute, the same numbering of the Articles has been followed in the new Statute.

In a sense, therefore, the new Court may be looked upon as the successor to the old Court which is replaced. The succession will be explicitly contemplated in some of the provisions of the new Statute, notably in Article 36, paragraph 4 [which subsequently became paragraph 5], and Article 37." (United Nations Conference on International Organization, Documents, Vol. r3, p. 384.)

The passage quoted shows clearly that, although certain considerations called for the creation of a new Court, that Court was to be in substance a continuation of the Permanent Court. The formal and, in effect, insignificant changes in the Statute of the new Court were not to be permitted to stand in the way of the then existing compulsory jurisdiction of the Permanent Court being taken over by the International Court. It was specifically contemplated that the continuity of the two Courts should be given expression by recognizing the continuity of the compulsory jurisdiction at that time existing. It would have been difficult to use more specific terms: "The succession will be expressly contemplated..."

In fact, a study of the records of the Conference shows that the determination to secure the continuity of the two Courts was closely linked with the question of the compulsory jurisdiction of the new Court in a manner which is directly relevant to the interpretation of paragraph 5 of Article 36.

With regard to the question of the jurisdiction of the new Court, the discussions in both the Washington Committee of Jurists and [p 160] Committee I of Commission IV of the San Francisco Conference had disclosed a preponderance of sentiment in favour of compulsory jurisdiction. The Committee of Jurists, considering the question of compulsory jurisdiction to be of a political character, took no decision on the subject. Instead, in its final report it presented alternative texts—one leaving the acceptance of compulsory jurisdiction over legal disputes to a free decision of each State which is a party to the Statute; the other providing for the immediate acceptance of such compulsory jurisdiction by all parties to the Statute.

At San Francisco, the First Committee of Commission IV had these two texts before it, as well as some other proposals. These proposals were, subject to some variations, all in favour of compulsory jurisdiction of the New Court. The prolonged debate which took place showed the existence of a preponderant volume of support for the immediate recognition, throughout the membership of the new international organization, of the principle of the compulsory jurisdiction of the Court. The United Kingdom representative urged the adoption of a compromise between the advocates and the opponents of the principle of compulsory jurisdiction to be incorporated into the Statute. He stated: "If the Committee decides to retain the optional clause, it could provide for the continuing validity of existing adhérences to it." A Sub-Committee was created to "seek an acceptable formula". It presented the existing text of paragraph 5 of Article 36 of the Statute.

In fact, the two questions—the continuity of the existing compulsory jurisdiction as provided in paragraph 5 of Article 36 (as well as in Article 37) and the general question of compulsory juris-diction—were treated as two aspects of the same wider question at the same meetings, in the same speeches, in the same reports. This is clearly shown in the documents containing the Reports of the Seventeenth Meeting of Committee IV/I (Documents of the Conference, Vol. 13, pp. 246-250) and, in particular, in the Report of the Sub-Committee of Committee IV/Ion Article 36 (pp. 557-559).

It is thus clear that the purpose of paragraph 5 was to provide "for the continuing validity of the existing adhérences" to the Optional Clause. Far from contemplating that any of the then existing declarations of acceptance should disappear with the dissolution of the Permanent Court, the authors of paragraph 5 had in mind the maintenance of the entire group of declarations of acceptance which were still in force and in accordance with their terms, irrespective of the dissolution of the Permanent Court. That purpose was expressed in the widest possible terms intended to eliminate any real or apparent legal difficulties: "They [the Declarations] shall be deemed, as, between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice." Neither, as will be shown later in [p 161] the present Opinion, is there any evidence to suggest that the intention of the authors of paragraph 5 was to limit its operation to States which participated in the Conference of San Francisco and which became the original Members of the United Nations as defined in Article 3 of the Charter. It is legitimate to hold that the result of the compromise reached at the Conference and embodied in paragraph 5 should not be whittled down by way of interpretation of the clear and unqualified text of paragraph 5 of Article 36 of the Statute.

***

We will now, in the first instance, examine as a matter of interpretation—both in themselves and in their context—the relevant words of paragraph 5 of Article 36 in relation to the contention of Bulgaria that the words "which are still in force" in paragraph 5 refer to the existence of the Permanent Court and do not therefore apply to Bulgaria's Declaration which, it is asserted, ceased to exist with the dissolution of the Permanent Court. It will be shown later in this Opinion that the maintenance or severance of the connection between the Declaration and the existence of the Permanent Court is irrelevant having regard to the clear object of paragraph 5. We are at present concerned with the interpretation of the terms in question as such. We consider that the words "which are still in force", when read in the context of the whole paragraph, can only mean, and are intended to mean, the exclusion of some fourteen declarations of acceptance of the compulsory jurisdiction of the Permanent Court which had already expired and the inclusion, irrespective of the continuance or dissolution of the Permanent Court, of all the declarations the duration of which has not expired. At the Conference of San Francisco there were present a number of States that had in the past made Declarations of Acceptance which, not having been renewed, had lapsed and were therefore no longer in force. This applied, for instance, to the Declarations of China, Egypt, Ethiopia, France, Greece, Peru, Turkey and Yugoslavia. It was clearly necessary, by inserting the expression "which are still in force", to exclude those States from the operation of paragraph 5. That interpretation is supported by the French text which is as authoritative as the English text and which is even more clear and indisputable than the latter. The words "pour une durée qui n'est pas encore expiree" (for a duration which has not yet expired) must be regarded as determining the true meaning of the English text in question. The fact that the Chinese, Russian and Spanish texts of that paragraph approximate to the English text does not invalidate or weaken the obvious meaning of the French text. Those three texts were translated from the English version, whereas the French text was that of one of the two official working languages adopted at the San Francisco Conference. However, while [p 162] the French text removes any doubt whatsoever as to the meaning of these words, there is in effect no reasonable doubt about them also so far as the English text is concerned. There is no question here of giving preference to the French text. Both texts have the same meaning. The French text is no more than an accurate translation of the English text as generally understood. Or, rather, in so far as it appears that the final version was first formulated in the French language, the English text is no more than an accurate translation from the French.

The Government of Bulgaria contended that the first French version adopted by Committee IV/I—"déclarations qui sont encore en vigueur" (declarations which are still in force)—was a faithful translation of the English text; that it was changed at the request of the French delegation into the present wording in French: "pour une durée qui n'est pas encore expirée" (for a duration which has not yet expired) ; and that the French representative had explained in the Committee that the changes which he proposed for insertion did not relate to the substance but were intended to improve the drafting. The account of these successive changes is correct. Yet it provides no support for the argument in aid of which it is adduced. For it must be noted that the French amendment was proposed subsequent to the adoption of the text of the paragraph in question and was approved without dissent at a subsequent meeting of the Committee. There was no change in the substance of the paragraph for the reason that the clear and unambiguous meaning of the French amendment was understood by the whole Committee as conveying the true sense of the English text as well. The Rapporteur of the First Committee, who made his report in the English language, stated, after referring to the question of Article 36, as follows: "A new paragraph 4 [now paragraph 5] was inserted to preserve declarations made under Article 36 of the old Statute for periods of time which have not expired and to make these declarations applicable to the jurisdiction of the new Court." There seems to have been no doubt in the minds of the members of the First Committee as to the meaning of the words "still in force" in the English text. The French amendment was made indeed not with a view to any change in substance but only for the purpose of clarification.

Admittedly, an international obligation may cease to exist for reasons other than lapse of time; it may, for instance, terminate because of the fulfilment of its object, denunciation in a manner provided in the instrument, or its dissolution by mutual agreement. However, those various modes of termination and extinction of obligations are not covered by the accepted usage of the phrase "which are still in force". They are clearly not covered by its French version which speaks of "a duration which has not yet expired" (pour une durée qui n'est pas encore expirée).That meaning of the expression "which are still in force" is so well established in [p 163] the English language that it was not deemed necessary in the English wording to give a literal translation, word by word, of the French version. Both phrases refer, in their ordinary connotation, to the element of the expiration of time—not to termination as the result of an extraneous event such as the dissolution of the Permanent Court. There is no persuasive power in the- argument that these expressions, although ordinarily referring to the element of time, may, by dint of some ingenuity, be made to mean something different from their ordinary connotation.

The same result follows when the terms in question are considered by reference to their context in relation to other provisions of the Charter on cognate matters. The words "still in force" in para-graph 5 cannot, in the absence of express language to the contrary, be interpreted in a sense different from that which they obviously have in paragraph 1 of Article 36 and in Article 37 of the Statute— both of which refer to treaties in force. Neither party has suggested that the latter provisions refer to the validity of the treaties in question by reference to any test other than lapse of time for which they were concluded. We are unable to interpret these words in a manner which is not only contrary to accepted usage in the English text and the explicit wording in the French language in which they were first formulated, but which also departs from the obvious—and uncontroverted—meaning of these terms in the passages, immediately following and preceding, of the Statute.

There is, for reasons which will be elaborated presently in more detail, no merit in the contention that the declarations made under paragraph 2 of Article 36 of the Statute of the Permanent Court were indissolubly linked with that Statute and therefore inevitably and finally lapsed with the dissolution of that Court, while the treaties referred to in Article 37 were not so linked and therefore their transfer to the jurisdiction of the International Court of Justice survived the dissolution of the Permanent Court. The legal authority, as a source of the jurisdiction of the Court, of the jurisdictional provisions of any treaty whatsoever is grounded in paragraph 1 of Article 36 of the Statute which provides that the jurisdiction of the present Court comprises "all matters specially provided for ... in treaties and conventions in force". If, as the result of the injection of extraneous conditions into the clear terms of paragraph 5 of Article 36, the dissolution of the Permanent Court had an effect of putting an end to the declarations made under paragraph 2 of Article 36 of the Statute of the Permanent Court, the same consequences would follow with regard to the treaties and conventions referred to in Article 37 of the present Statute. Yet it is clear that no such consequences follow, and none have been asserted to follow, in this respect in relation to any of these provisions. In relation to all of them the expression "in force" does not possess a meaning different from that ordinarily attached to these terms, namely, as referring to the element of time. [p 164]

***

We do not attach decisive importance to the question, with regard to which the parties were sharply divided, of the date to which the expression "which are still in force" must be attached. That may be either the date on which the Charter entered into force, namely, 24th October, 1945, or the date on which the declarant State has become a party to the Statute of the International Court of Justice. It may be said, in support of the first alternative, as urged by the Government of Israel, that normally a legal instrument speaks as of the date on which it enters into force. However, there is also substance in the view that that expression ought, more properly, to be attached to the date on which the particular State becomes bound by the obligations of the Statute. Retroactive operation of a provision ought not to be assumed without good cause; normally, it is the date of the State becoming a party to the instrument which determines, in relation to that State, the date of the commencement of the operation of its various provisions.

We do not consider that any practical consequences, detrimental to the contentions of either party, follow from the adoption of one of these alternative dates in preference to another. In our view, the validity of paragraph 5 did not lapse on the dissolution of the Permanent Court; its purpose was to render that dissolution irrelevant in the matter of the transfer of declarations; the intention was that it should become operative as soon as a declarant State becomes a party to the Statute—unless its declaration was no longer in force by reason of having expired in conformity with the concluding passage of paragraph 5. Accordingly, the main contention of the Government of Israel is not defeated if the expression "which are still in force" is attached to the date on which Bulgaria became a party to the Statute. On that date—or from that date—her Declaration of 1921, saved from extinction by virtue of paragraph 5 of Article 36, became fully operative.
***
Accordingly, we reach the conclusion that, having regard both to the ordinary meaning of their language and their context, the words "which are still in force" refer to the declarations themselves, namely, to a period of time, limited or unlimited, which has not expired, regardless of any prospective or actual date of the dissolution of the Permanent Court. So long as the period of time of declarations made under Article 36 of the Statute of the Permanent Court still has to run at the time when the declarant State concerned becomes a party to the Statute of the International Court of Justice, those declarations fall within the purview of Article 36, paragraph 5, of the new Statute and "shall be deemed to be acceptances of the [p 165] compulsory jurisdiction of the International Court for the period which they still have to run and in accordance with their terms".

***

We will now examine the meaning of these concrete terms of paragraph 5 by reference to the object of that provision. The jurisdiction of the International Court of Justice is established by the Charter and the Statute of the Court. In law it could not have been, and was not, affected in any way by the action of the Assembly of the League of Nations in dissolving the Permanent Court any more than the establishment of the new Court could have juridically affected the jurisdiction of the Permanent Court. The creation of the one and the termination of the other were two separate legal acts. This was so although there was a close link of cause and effect between them. For a period of time between the enactment of these two measures the two institutions existed in law, though one was not yet organized and the other already preparing for dissolution. In the words of Sub-Committee IV/I/A, "since, however, it is impossible to contemplate the existence of the two World Courts, each with their seat at The Hague ... it is clear that at the earliest possible moment steps will have to be taken to bring the old Court to an end...". (United Nations Conference on International Organizations, Vol. 13, p. 521.)

It is thus clear that the provisions of Article 36, paragraph 5, of the new Statute operate independently of the Permanent Court and that such operation is not affected by its dissolution. As already shown, the preoccupation of the San Francisco Committee IV/I relating to that paragraph was to preserve as a whole the declarations of acceptance of the compulsory jurisdiction of the Permanent Court for the new Court. It was not concerned with the question whether the Declarations would be valid when detached from the Permanent Court. It was concerned with the drafting and adoption of a formula which would provide for their continuing validity.

The essential object of the Conference of San Francisco as expressed by the First Committee was to provide "for the continuing validity of the existing adherences to it" in a manner consistent with international law. The fact of severance from the Permanent Court of International Justice was taken for granted in respect of declarations of acceptance. It was the attachment of the declarations to the new Court which was considered essential and it was that object which prompted the adoption of the formula provided in paragraph 5 of Article 36 in order to ensure the continued validity of those declarations. Nor was the date of severance from the Permanent Court considered to be of importance. It is therefore immaterial whether that date was October 24th, 1945, on which [p 166] the Charter of the United Nations providing for the establishment of the International Court of Justice came into force, or the date of April 18th, 1946, on which day the Permanent Court was formally dissolved to take effect on April 19th. As a matter of fact, the Permanent Court held its final session in October, 1945; all the Judges resigned in January 1946. In view of the imminent dissolution of the League of Nations there was no machinery for the election of new Judges. What is material in respect of the validity of a declaration in relation to the present Court is whether it fulfils the requirements of Article 36, paragraph 5. In other words, the dissolution of the Permanent Court was not intended to have any effect, and had none, upon the declarations of acceptance provided for in Article 36, paragraph 5, so far as the present Court is concerned. Whether these declarations, including the Bulgarian Declaration of 1921, are applicable to the International Court of Justice or not is to be determined solely in accordance with Article 36, paragraph 5, of the new Statute—in which, by deliberate omission, there is no reference to the dissolution of the Permanent Court.

In so far as its relation to the Permanent Court of International Justice and its Statute is concerned, the Bulgarian Declaration of 1921 ceased, both in fact and in the strict sense of the law, to be applicable when that Court was dissolved on April 18th, 1946. However, in relation to the International Court of Justice, the dissolution of the Permanent Court was precisely the situation envisaged by the framers of the new Statute as a reason for the adoption of paragraph 5 and its full operation in consequence of and subsequent to the dissolution of the Permanent Court. It was for the purpose of preserving for the new Court the compulsory jurisdiction which had been conferred upon the old Court and whose period of validity had not expired that paragraph 5 was adopted and inserted in Article 36 of the present Statute and that Article 37 was introduced. By virtue of paragraph 5 of Article 36 the declarations of acceptance still in force of the States which became parties to the Statute on 24th October, 1945, when the Charter came into force, are deemed to be acceptances of the jurisdiction of the new Court. However, the other declarations of acceptance which were still in force were not to be extinguished and forgotten. Their operation was suspended until such time as the declarant State became a party to the Statute by being admitted to the United Nations or by virtue of Article 93 (2) of the Charter. Bulgaria more than once applied for admission to the United Nations. When admitted on December 14th, 1955, she became on that day a party to the Statute. Since the Bulgarian Declaration of 1921 has no time-limit attached to it, it came on the same day within the purview of Article 36, paragraph 5. [p 167]

***

There is a further consideration of a practical nature which precludes the interpretation of the words "which are still in force" as being directed to the contingency of the dissolution of the Permanent Court. If that were the true interpretation of these words, there would have existed a distinct possibility of the object of paragraph 5 being frustrated. The States participating in the Conference of San Francisco, having decided upon the creation of a new Court, were anxious to see the old Court terminated. Of the fifty-one States attending the San Francisco Conference, thirty-one were parties to the old Statute and, with a few exceptions, were Members of the League of Nations. There existed the possibility of the League of Nations meeting and dissolving itself and the Per-manent Court before the coming into force of the Charter of the United Nations and the Statute of the new Court. Moreover, the attainment of twenty-nine ratifications of the Charter on October 24th, 1945, including the ratifications of five permanent members of the Security Council, could not have been foreseen with any degree of certainty. It might have been achieved at a later date, possibly after the dissolution of the League and of the old Court. In either eventuality, Article 36, paragraph 5, would have become a dead letter. For in that case, according to the contention of Bulgaria, all the declarations would have lapsed with the dissolution of the Permanent Court and the extinction of the old Statute, and would no longer be in force.

***
The intention of paragraph 5 of Article 36 was to eliminate the difficulties connected with the impending dissolution of the Permanent Court and likely to interfere with the continued validity of the declarations. The Bulgarian contention, accepted by the Court, introduced these considerations as an integral part of Article 36. The unqualified language of paragraph 5 suggests that any real or apparent legal difficulty ensuing from the fact that the declarations were annexed to the Statute of the Permanent Court and any other legal difficulties, real or apparent, which did or did not occur to the authors of paragraph 5 were met by the comprehensive provision laying down that these declarations shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the new Court. It is exactly some such obstacles which the authors of Article 36 wished to neutralize. This was the purpose of paragraph 5. They said in effect: Whatever legal obstacles there may be, these declarations, provided that their period of validity has not expired—that is provided that they are still in force on the day of the entry of the Charter into force or on the day on which the declarant State becomes a party to the Statute—shall [p 168] continue in respect of the International Court of Justice.

The intention of paragraph 5 which used the words "shall be deemed ... to be acceptances" is to cut clear through any cobweb of legal complications and problems which might arise in this connection. It is not the intention of paragraph 5 to recognize any decisive effect of these difficulties by a form of words—"still in force"— which normally mean something else. It is otherwise incomprehensible why if the words "still in force" were intended to mean only "so long as the Permanent Court has not been dissolved" these latter words should not have been used instead of the words "still in force" which have a clear and different meaning of their own, namely, as referring to termination as the result of lapse of time. Accordingly, to attach decisive importance to the effect of the disso-lution of the Permanent Court amounts not only to re-writing paragraph 5; it amounts to adding to it an extraneous condition which it was the purpose of that Article to exclude and to disregard. When it is therefore asserted that the effect of the dissolution of the Permanent Court was to terminate the declarations of acceptance existing on 19th April, 1946, the correct answer to any such assertion is that that was exactly the result which paragraph 5 was intended to prevent.

The governing principle underlying paragraph 5 is that of automatic succession of the International Court of Justice in respect of the engagements undertaken by reference to the Statute of the Permanent Court, the dissolution of which was clearly envisaged and anticipated. We have cited the passage in question from the report of Committee IV/I. We therefore consider that any argument based on the dissolution of the Permanent Court and the lapse of its Statute to which the Declaration of 1921 was attached is irrelevant either in connection with the interpretation of the words "which are still in force" or otherwise. There is, for the same reason, no basis for the argument that the object of paragraph 5 being to ensure the continuity of the jurisdiction of the Court, it cannot be regarded as intended to resuscitate the declarations which had lapsed as the result of the dissolution of the Permanent Court. The object of paragraph 5, clearly expressed in the course of the preparatory work as cited, was precisely to prevent these declarations from lapsing with finality for all purposes. Undoubtedly, they lapsed so far as the Permanent Court was concerned; they did not lapse so far as the present Court is concerned. The object of paragraph 5 was to secure succession in the sphere of the obligatory jurisdiction of the Court.
Admittedly, the declaration of Bulgaria was based on the Statute of the Permanent Court. Admittedly also, the Statute ceased to exist and to be binding upon Bulgaria when the Permanent Court was dissolved, and the Statute of the present Court was not binding upon her unless and until she became a party to its Statute. [p 169]

However, upon that event, her declaration became subject to the operation of paragraph 5 which maintained the potential force of the declarations in relation to the States covered by the plain terms of that provision, namely, in relation to the States becoming parties to the Statute. Consequently, when in 1955 Bulgaria became a party to the Statute by becoming a Member of the United Nations, paragraph 5 became fully operative in relation to her. Its purpose was not extinguished through the dissolution of the Permanent Court; it was to prevent the dissolution of that Court from becoming a destructive factor in relation to the declarations made under its Statute. Its purpose was to safeguard the existing compulsory jurisdiction in relation to the present Court notwithstanding the event clearly envisaged by the authors of paragraph 5, namely, the dissolution of the Permanent Court. It was exactly that anticipated event which prompted paragraph 5.

There is little persuasive power in the suggestion that paragraph 5 was intended to prevent that result only on condition that the States concerned became parties to the Statute prior to 18th April, 1946. There is no evidence in support of that proposition and no satisfactory explanation of any such intention calculated to reduce the period of the operation of paragraph 5 and to render it vague by introducing the element of uncertainty connected with the date of the dissolution of the Permanent Court. At the time when the text of the Charter was established it was difficult to foresee when the dissolution would take place.

Accordingly, we do not consider it necessary to pursue the arguments propounded, in expressive language, with regard to the possibility of reviving the Bulgarian Declaration of 1921 whose life, it was asserted, was terminated as the result of the dissolution of the Permanent Court. As stated, this was so only subject to the operation of paragraph 5. It may be added that there are obvious limits to the analogy between the death of a person and the cessation of the operation of a legal provision. Nothing can revive the dead; a short paragraph in a treaty can instill new and vigorous life into a treaty or provision of it whose operation is suspended or which had ceased to exist. Some treaties, for instance, are automatically dissolved as the result of war; they are resuscitated by a single provision of the Treaty of Peace either immediately or under certain conditions to be fulfilled in the future. Paragraph 5 intends the same result with regard to declarations which might have been temporarily inoperative in consequence of the contemplated event of the dissolution of the Permanent Court and the termination of its Statute. Legal intercourse between States—as between individuals —abounds in examples of a contractual provision being dormant, and its operation suspended, pending the accomplishment of an event by an act of a party or some extraneous occurrence. [p 170]

It is therefore of no consequence—in view of the specific provisions of Article 36, paragraph 5—whether the acceptance by-Bulgaria of the Statute and therefore necessarily of Article 36, paragraph 5, is to be considered, in regard to the Bulgarian Declaration of 1921, as an act of ratification of a declaration previously made but subject to ratification, or as a renewal of a former declaration, or as an act equivalent to the making of a new declaration in the form and with the content of that of 1921 without following the requisite formalities of a declaration of acceptance. In whatever way the matter is viewed there is no doubt as to the clear expression of the sovereign will of Bulgaria—as given through her voluntary acceptance of the Statute, including Article 36, paragraph 5—an expression of will which supplied the consensual basis of a declaration of acceptance of the compulsory jurisdiction of the new Court. That act of acceptance, it may be added, is an implementation of the solemn Declaration made by Bulgaria on 9th October, 1948, of the acceptance of the obligations—of all the obligations—of the Charter of the United Nations. That Declaration reads, in part, as follows: "The People's Republic of Bulgaria hereby accepts without reserve the obligations arising from the United Nations Charter and promises to observe them as inviolable from the date of its accession to the United Nations" (United Nations Treaty Series, Vol. 223, p. 33). There could be no clearer expression of the will of Bulgaria to accept and observe the obligations of the Charter of the United Nations and of the Statute. Later in this Opinion we propose to examine in more detail the question of consent on the part of Bulgaria in connection with the alternative basis of the Judgment of the Court, namely, that the operation of paragraph 5 is limited to the original Members of the United Nations.

***
As stated we are unable to uphold the main Bulgarian contention according to which the dissolution of the Permanent Court had the effect of finally and irrevocably putting an end to the declarations attached to its Statute. Accordingly, we do not consider it necessary to examine, in detail, the general grounds by reference to which it was maintained that certain additional conditions must be implied in paragraph 5. Thus it was argued that unless the operation of paragraph 5 is limited to States who have become parties to the Statute prior to the dissolution of the Court, the Conference of San Francisco would have to be considered as having attempted a measure which it was legally quite incompetent to attempt and powerless to achieve! That measure would, it was contended, separate the binding force of the declaration from the Statute to which it was [p 171] legally attached by an indissoluble link and which had ceased to exist with the dissolution of the Permanent Court. It was further argued that by doing so the Conference of San Francisco would be attempting another drastic step which it was not legally entitled or competent to undertake, namely, to destroy the consensual character, grounded in the Statute, of the declarations of acceptance. We can find no merit in that line of argument.

There is a deceptive element of simplification in some such notion as that the Conference of San Francisco decreed certain measures or that it had no power to decree them—for instance, to deprive the declarations of acceptance of their consensual character or to attach them to something which had ceased to exist. The only step which the Conference did take and could take in this connection was to establish a text. That text did not bind any State. Any signatory of the Charter was free to refuse to ratify it. Any State subsequently contemplating membership of the United Nations was free to treat it as an offer which it was at liberty to accept or to reject. The validity and binding force of the Charter and any of its provisions are due not to the decision of the Conference of San Francisco but to the very will of the States which subscribed voluntarily to its obligations in 1945 and in subsequent years. Like any other Member of the United Nations, Bulgaria, in adhering to the Charter, of her own free will, accepted its obligations, including those of paragraph 5 of Article 36 of the Statute. In doing so, she supplied that very consensual link which, it is asserted, is essential to the declarations of the Optional Clause. She also supplied the consensual link necessary for the modification—however slight in the present case—of her Declaration of Acceptance.

The Statute could have provided that all the declarations, whenever made, which had already expired, should be considered as being revived and as continuing for another twenty years. This would have been an unusual and drastic provision. If a State had consented to it by adhering to the Charter, that would have been the inevitable result of its membership of the United Nations. The consensual link would have been supplied. Paragraph 5 of Article 36, like any other provision of the Statute, is a provision of a consensual character. There is no basis for the suggestion that it is essential for the structure of Article 36 that the consensual link be established only through paragraph 2, and not through any other paragraph. Thus, paragraph 1 of Article 36 establishes the consensual basis of the jurisdiction of the Court with regard to "all cases which the parties refer to it and on matters specially provided for in the Charter of the United Nations or in treaties and conventions in force". In a different sphere, Article 37 provides the consensual link with regard to the succession of the International Court of Justice to the jurisdiction of either the Permanent Court or any other tribunal [p 172] established by the League of Nations.

Admittedly, once the text of the Charter had been established by a decision of the Conference, the States which subsequently adhered to it had no option but to agree to all its provisions. However, this does not mean that they did not of their own volition agree, in consideration of the overwhelming advantages of Membership of the United Nations, to the various Articles of the Charter and the Statute. According to established and uniform international practice, a State adhering to an international instrument agrees— unless otherwise expressly provided by the instrument—to accept it as it stands. Moreover, as already stated, there was no innovation in the provision to which they thus elected to agree. It was, on any reasonable estimate, no more than a piece of machinery in the sphere of succession of international judicial organization. Members of the United Nations agreed that their declarations in respect of the Statute of the Permanent Court should continue, notwithstanding the dissolution of that Court, in respect of what was essentially and substantially the same Court. Paragraph 5 expressly laid down that the declarations shall continue "for the period for which they still have to run and in accordance with their terms". Except for their transference to the International Court of Justice, they were not modified. When compared with many other provisions of the Charter restricting the sovereignty of its Members, as enshrined in traditional international law, this was a provision of distinctly limited scope. It is sufficient to compare it, for instance, with the Articles of the Charter which lay down that Members are under a legal obligation to comply with decisions of the Security Council or that they must not resort to force, even if not amounting to war and even against States which are not Members of the United Nations, for the settlement of disputes. There is therefore, also from this point of view, no persuasive power in the argument advanced by Bulgaria and claiming that radical—or, indeed, absurd—legal consequences would result, on that account, from the interpretation of paragraph 5 in accordance with its clear terms.

***
For the reasons stated we cannot admit the contention of Bulgaria that the object and the basis of the Declaration of 1921 disappeared for the reason that the Permanent Court was replaced by what was essentially an identical judicial, organ. Both the object and the basis of the Declaration remained the same; they were covered, in addition, by the clearly manifested purpose of the authors of the Statute to secure the continuity of the compulsory jurisdiction of the Court. Apart from considerations of a formal character, which it was the very purpose of paragraph 5 to eliminate, what was in [p 173] law and in fact the actual consequence of the dissolution of the Permanent Court in relation to the basis and the object of the Bulgarian Declaration of 1921 and of similar declarations? In so far as the Statute of the Permanent Court was the basis of the Declaration of 1921, that basis was hardly affected by the adoption of a new Statute which for all practical purposes was indistinguishable from that of the Permanent Court. The difference in the object of the two declarations as related to the Permanent Court and the International Court of Justice was, if possible, even more nominal: the object of both declarations was exactly the same, namely, to undertake obligations of compulsory judicial settlement with regard to what were, for all practical purposes, identical organs—an identity which corresponded to the articulate and frequently expressed purpose of the Conference to secure the continuity of international jurisdiction in the matter of obligatory judicial settlement.

We attach importance to upholding the spirit of the jurisprudence of the Court on the subject of succession in international organization. In the Advisory Opinion concerning the International Status of South-West Africa, the Court was confronted with the contention that the disappearance of the League of Nations, the organ charged with the supervision of the system of Mandates, put an end to the Mandate and the international obligations of the Mandatory. The Court rejected that contention. It held that the United Nations succeeded to the supervisory functions of the League of Nations. It did so although the Charter contained no express provision to that effect and although the United Nations and the League of Nations were different institutions. In the present case, most explicit and unqualified provision is made for the transfer of jurisdiction to what on any reasonable estimate must be regarded as an identical organ. It is also for that additional reason that we are unable to admit the accuracy of the contention that the object and the basis of the Bulgarian Declaration of 1921 disappeared with the dissolution of the Permanent Court.

***
These, then, are the two governing factors in the situation: the first is that the expression "which are still in force", when interpreted in its ordinary and accepted meaning, refers to termination as the result of expiration of time, and not to any extraneous event such as the dissolution of the Permanent Court. The second is that it is the very object of paragraph 5 to prevent the dissolution of the Permanent Court from exercising a destructive effect upon the existing declarations. The combined result of these two factors was, in the first instance, to maintain these declarations immediately and automatically with regard to the original Members of the United [p 174] Nations. Secondly, the result was to preserve them potentially with regard to the other declaring States until the time—a reasonable time—when they become parties to the Statute. The question of the reasonableness of the period involved is examined later on in this Opinion. In the present context it is sufficient to state that after the dissolution of the Permanent Court paragraph 5 did not cease to be operative in relation to the potential parties to the Statute. Neither, for the purposes of that paragraph, did their declarations. It was of the essence of the purpose of paragraph 5 to prevent any such result. The comprehensive language of that provision—"shall be deemed... to be acceptances"—renders it useless to speculate on the exact nature of that continuing obligation whose operation remained in suspense so long as the declarant State did not become a party to the Statute. The expression "legal fiction" may or may not be helpful in that connection; so may the notion of a merely dormant obligation. The language and purpose of paragraph 5 render unnecessary any refinement of speculation on the subject.

It is of direct interest to the issue here examined to note the manner in which, at the beginning of 1947, a writer, who is regarded as a most authoritative commentator of the Statute, who was a Judge of the Permanent Court and who was present on behalf of that Court both in the Committee of Jurists at Washington and in the relevant Committee of the Conference of San Francisco, under-stood the operation of paragraph 5 of Article 36. Professor Manley Hudson stated, at that time, without alluding to any exception, that "under paragraph 5 of Article 36 previous declarations under Article 36 are to be deemed to be still in force, to the extent that they have not expired according to their terms, 'as between the parties to the present Statute' " (American Journal of International Law, Vol. 41 (1947), p. 10). He then enumerated the countries whose previous declarations were in force "down to the end of 1946". The enumeration included Thailand. There was no suggestion that the dissolution of the Permanent Court in April 1946 brought about the termination of the declaration of Thailand, which in fact did not become a member of the United Nations till December 1946. Professor Hudson, after mentioning some other States whose declarations expired during 1946 and were subsequently renewed, then referred to the declaration of Sweden which expired "during the year"—namely, as he stated, on August 16th, 1946—and was not renewed. Again there was no suggestion that the declaration of Sweden, who had not become a - party to the Statute until 1947, expired simultaneously with the dissolution of the Permanent Court. It expired on 16th August, 1946. [p 175]

***
Our conclusion is that we cannot, in the matter of the meaning of the terms "which are still in force", uphold an interpretation which departs from the accepted and ordinary use of terms; which is at variance with the admitted sense of corresponding terms in other provisions, immediately following or preceding, of the Statute; which introduces into paragraph 5 an extraneous factor which it was the very purpose of that provision to exclude; and which, if accepted, might have frustrated or considerably reduced the effect of paragraph 5. We hold that the terms in question refer not to the dissolution of the Permanent Court but to the validity, in point of time, of the declarations of acceptance on the date of the entry into force of the Charter or of the declarant State becoming a party to the Statute. For these reasons we must reject the First Preliminary Objection of Bulgaria in so far as it is based on that particular submission.

***

The second main ground by reference to which the First Preliminary Objection is upheld is that paragraph 5 of Article 36 applies only to original Members of the United Nations. Apart from one passing reference, in the course of the oral argument, in connection with the exclusion of former enemy States from the operation of paragraph 5, that particular ground was not invoked by Bulgaria. It was not argued by the Parties either in the written or in the oral proceedings.

There is nothing in paragraph 5, or in the preparatory work of the Conference of San Francisco, or in general principles of international law, or in the various provisions of the Charter to substantiate the view that that paragraph applies only to original Members of the United Nations in the sense of Article 3 of the Charter. Unless otherwise expressly provided, the provisions of the Charter apply in equal measure to every State which becomes a Member of the United Nations. In relation to Members of the United Nations, whatever may be the date of their adherence, no provision of the Charter can be res inter alios acta so as to bind some but not other Members. The proposition that the rights and obligations of the Charter vary in this respect as between the various Members of the United Nations is contrary to the entire structure of the Charter and the relevant principles, generally accepted, of international law on the subject. In practice, any such proposition, if accepted, would lead to serious consequences. [p 176]

Neither can the suggestion be accepted that paragraph 5 does no more than to give expression to an agreement reached inter se between the States which participated in the Conference of San Francisco. The Charter nowhere embodies particular agreements between particular Members. Any such method would be wholly alien to its purpose and character. The provisions of the Charter are of general application. The same applies to the Statute, which is part of the Charter.

***
In our opinion there is no legal basis for the assertion that, while the original Members of the United Nations could bind themselves in the matter of the transfer of the declarations under paragraph 5 of Article 36 of the Statute, they could not bind other States subsequently adhering to the Charter. It is of the very essence of the Charter that its provisions—all its provisions—bind States which adhere to the Charter subsequent to its coming into force. If Article 36 had provided unconditionally for the obligatory jurisdiction of the Court—and not merely for the maintenance of existing declarations in accordance with their terms—it would be binding not only upon original Members but also upon all States subsequently adhering. It would not be res inter alios acta in relation to those States. That proposition is too fundamental to require elaboration. We consider it imperative that in deciding any particular controversy, which may be of a passing character, no countenance should be given to general propositions such as that there is a difference, with regard to any obligations of the Charter, between original Members and others; or that any provision of the Charter can be res inter alios acta in relation to States subsequently adhering; or that the obligations of a judicial settlement must be interpreted by reference to standards more exacting than the interpretation of other obligations of the Charter.

There is not a single provision of the Charter which registers an agreement inter se between a limited number of Members of the United Nations. The Charter, in a number of articles—such as Articles 43 (2) and (3), 52-54, 64, 77 (2)—provides for the possibility of such agreements. But these agreements, while contemplated or permitted by the Charter, do not form part thereof. The provisions of the Charter are provisions, applicable to all, of a general legislative treaty which, it was expected, would in due course embrace all members of the international community. It cannot be admitted that a treaty of that character was used as an instrument for embodying private agreements of limited scope and duration between a limited number of Members of the United Nations. [p 177]

As it was not known at the time of the signature of the Charter how many signatories would ratify it prior to the dissolution of the Permanent Court, it was possible that the number of States event-ually bound by what is asserted to be a particular agreement embodied in paragraph 5 would be even smaller than that appearing on the face of that provision. Moreover, if the view is accepted that the operation of paragraph 5 is confined to States which ratified the Charter prior to the dissolution of the Permanent Court, the result would have been not only that that was a particular agreement between a limited number of Members of the United Nations; the result would have also been that that was an agreement valid and operative for a period of six months only—the period between October 1945 and April 1946. We do not find it possible to admit that a truncated agreement of that kind, between a limited number of States, can form part of a Charter laying down the foundations of a universal community of States organized in the United Nations.

There was no question at the Conference of San Francisco of the participant States imposing upon future Members of the United Nations any obligations against their will. What the authors of the Charter were entitled to do, and what in fact they did, was to provide that it should be a condition of membership—whether on the part of the original Members or of States subsequently adhering to the Charter—that the existing declarations in the matter of the Optional Clause should continue in accordance with their terms. All Members of the United Nations, whatever the date of their membership, were to be placed in this respect on an equal footing. The equality of rights and obligations is, unless otherwise expressly provided, a fundamental feature of the Charter. The act of becoming a Member of the United Nations, and thus a party to the Statute, was a consensual act of voluntary choice. But it was an act involving automatic consequences in respect of paragraph 5 of Article 36 —as well as in respect of other obligations of the Charter.

These considerations are specially pertinent when it is borne in mind that the authors of the Charter attached particular importance to using accurate terminology in designating the entities to which the provisions of the Charter were intended to apply. Great care was taken to distinguish, whenever necessary, between "original Members" and "signatory Members" on the one hand and Members of the United Nations" on the other. For instance, Article 3 of the Charter contains a definition of what are "original Members". Article 110 (4) refers explicitly both to "States signatory to the present Charter" and "original Members of the United Nations". Article 107 refers to a State which is "a signatory to the present Charter"; Article no (1) again refers to "signatory States". It would have been easy for the authors of paragraph 5—who, it is [p 178] asserted, were fully cognizant of the realities of the situation—to use the words "original Members of the United Nations" or "States signatory to the present Charter" instead of "parties to the present Statute". They did not do so. The inference, which is not a strained one, is that they considered these asserted realities to be irrelevant. The Court cannot speculate on the question whether the signatories of the Charter did or did not foresee the long chain of political events which delayed the admission of a number of States to the United Nations. Neither, subject to any considerations of a reasonable application of the Statute, can the Court engage in surmises as to the duration of the delay which the signatories may or may not have considered proper in this connection.

The words "parties to the Statute" occur constantly in the Statute—to mention only Articles 5 (1), 35, 36 (2), 37. All these Articles refer to all the parties to the Statute at any time. It is not permissible to interpret them in relation to paragraph 5 of Article 36, as meaning "present parties to the present Statute". It will therefore be noted that to admit the contention that the operation of paragraph 5 is limited to original Members of the United Nations would involve yet another alteration of the wording of that provision. It would involve a substantial change in the existing text of paragraph 5. The words "as between the parties to the present Statute" would have to be altered to read "as between the present parties to the present Statute".

***

Admittedly, unlike in the case of the original Members of the United Nations, the operation of paragraph 5 in relation to States not represented at the Conference could not be immediate and automatic. That did not signify that those States were excluded from its operation. What it meant was that their declarations would be transferred to the International Court of Justice only when they became parties to the Statute. Professor Manley Hudson, to whom reference is made in a previous part of the present Opinion, drew attention to this aspect of the question when writing early in 1946. He pointed out that "the new paragraph 5 was inserted with the purpose of preserving some of the jurisdiction of the Permanent Court for the new Court". After giving the names of the eleven States which had deposited ratifications of the Charter by 24th October, 1945, and whose declarations made under Article 36 were in force, he continued: " 'As between the parties to the Statute', the provision applies to them." He then gave the names of ten other States who participated in the Conference and to whose declarations "the provision will similarly apply from the dates of their deposits of ratifications". He added: "On the other hand, declarations made [p 179] by the following States under Article 36, which were also in force on October 24th, 1945, will not be covered by the provision unless these States become parties to the new Statute: Bulgaria, Finland, Ireland, Portugal, Siam, Sweden, and Switzerland" (American Journal of International Law, Vol. 40 (1946), p. 34)—a statement showing clearly that in the view of the learned writer those States were to come within the ambit of the operation of paragraph 5 as soon as they became parties to the new Statute.

***

It is of interest to note here a statement on the subject by the Australian representative at the First Committee of Commission IV of the Conference of San Francisco—a statement which, unless read carefully, may give the impression of lending some support to the view that the operation of paragraph 5 was intended to be limited to original Members of the United Nations. His contribution to the discussion was preceded by those of the representatives of Canada and the United Kingdom. The first, in referring to the proposed paragraph 5, said: "In view of the new paragraph quoted above, as soon as States sign the Charter, the great majority of them would be automatically under the compulsory jurisdiction of the Court because of existing declarations" (United Nations Con-ference on International Organization, Documents, Vol. 13, pp. 247-248). According to the statement of the representative of the United Kingdom, "some forty States would thereby become automatically subject to the compulsory jurisdiction of the Court" (ibid., p. 249). The representative of Australia then suggested a correction of that estimated number of States which would become automatically bound by the compromise effected through paragraph 5. In the words of the Record of the Committee: "He desired to call attention to the fact that not forty but about twenty States would be automatically bound as the result of the compromise. In this connection he pointed out that of the fifty-one States that have adhered to the Optional Clause, three had ceased to be in-dependent States, seventeen were not represented at the Conference, and about ten of the declarations of other States had expired" (ibid., p. 266). That statement accurately confined the automatic and immediate operation of paragraph 5 to the States represented at the Conference and ratifying the Charter. The declarations of other States were to be transferred to this Court as soon as they became parties to its Statute. In their case there would be no automatic and immediate transfer of declarations.

It would thus appear that the preparatory work of the Conference, far from casting doubt upon the applicability of paragraph 5 to [p 180] States not represented at the Conference, confirms its operation in relation to them as soon as they become parties to the Statute.

However, the records of the Conference show more directly—in a manner which leaves no room for doubt—that the operation of paragraph 5 of Article 36, as well as that of Article 37, was not intended to be limited to States participating in the Conference of San Francisco. It is sufficient to quote here literally the full text of the relevant part of the Report of the Rapporteur of the Main Committee IV/I (United Nations Conference on International Organizations, Documents, Vol. 13, pp. 384-385). The text of that Report speaks for itself. The Rapporteur said with regard to Article 37:

"(a) It is provided in Article 37 of the draft Statute that where treaties or conventions in force contain provisions for the reference of disputes to the old Court such provisions shall be deemed, as between the members of the Organization, to be applicable to the new Court."

It will thus be seen that with regard to Article 37 its operation was to be automatic, "as between the members of the Organization", with no distinction being made between the date of their adherence to the United Nations. With regard to paragraph 5 of Article 36, the language of the Report is even more specific:

"(b) It is provided in paragraph 4 [now paragraph 5] of Article 36 of the draft Statute that declarations made under Article 36 of the old Statute and still in force shall be deemed as between parties to the new Statute to apply in accordance with their terms to the compulsory jurisdiction of the new Court."

Nothing could express more clearly the intention that paragraph 5 of Article 36 should be operative "as between the parties to the new Statute", which can only mean States which become Parties to the new Statute at any time.

The Rapporteur, after having thus examined the position of the Members of the United Nations and of the Parties to the Statute, proceeded as follows:

"(c) Acceptances of the jurisdiction of the old Court over disputes arising between parties to the new Statute and other States, or between other States, should also be covered in some way, and it seems desirable that negotiations should be initiated with a view to agreement that such acceptances will apply to the jurisdiction of the new Court. This matter cannot be dealt with in the Charter or the Statute, but it may later be possible for the General Assembly to facilitate such negotiations."

Accordingly, there seems to be no room for doubt that the only acceptances, with regard to which future negotiation and agreement [p 181] were required were those relating to "disputes arising between parties to the new Statute and other States, or between other States". No such negotiations and agreements were required with regard to acceptances in cases of disputes when both States were to become parties to the Statute. A State which became a party to the Statute ceased to belong to the category of "other States," and no negotiations with that State were required. Article 36, paragraph 5, became directly applicable to it.

***
The final Report, as here literally cited, is—in our view—conclusive on the subject. However, it is instructive for its fuller understanding to give some details of the history of the drafting of the provision in question. In particular, it is useful to draw attention to the successive drafts of Article 37, which was intended to serve a general purpose similar to that underlying paragraph 5 of Article 36.

The First Committee of Commission IV in examining the problem of transferring to the present Court the provisions relating to the reference to the Permanent Court in the treaties and conventions in force at first adopted the following text of Article 37 on June 7th, 1945:

"Whenever a treaty or convention in force between the parties to this Statute provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice established by the Protocol of December 16, 1920, amended September 14, 1929, the matter shall be referred to the International Court of Justice."

However, on the recommendation of the Advisory Committee of Jurists of the San Francisco Conference the First Committee adopted, on June 14th, 1945, a revised text, which constitutes Article 37 of the present Statute and which is as follows:

"Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall as between the parties to the present Statute be referred to the International Court of Justice."

The considerations which led to the adoption of the recommended revision are explained in the Minute of the First Committee as follows:

"The Advisory Committee of Jurists in considering Article 37 recommended changes whereby a treaty or convention which refers a matter to a tribunal instituted by the League of Nations or to the Permanent Court of International Justice should be construed, [p 182] as between the parties of the present Statute, to refer the matter to the International Court of Justice. The Article as originally approved by the Committee provided that only treaties between parties to the Statute should be so construed. The Committee agreed that the elimination of this limitation was desirable since Article 37 of the Statute now envisages all treaties, which will make it unnecessary to negotiate a new treaty in order to refer a case to the Court." (Ibid., p. 460.)
It was thus made clear that, so far as parties to the Statute were concerned, no additional negotiations and agreements were required. The negotiations with a view to agreement which were at first thought to be indispensable in regard to the subject-matter of Article 37 were made unnecessary by the adoption of precisely the same formula—"shall, as between the parties to the Statute, be..."— for Article 37 as is embodied in Article 36, paragraph 5, with regard to the existing declarations of acceptance. All this confirms the view that paragraph 5 of Article 36 was intended to apply to all parties to the Statute, non-signatory as well as signatory States, without need of negotiation for any special agreement. In relation to both provisions the requirement of consent is supplied by the State concerned accepting membership of the United Nations—an event which makes it a party to the Statute—and by its formal undertaking to observe the obligations of the Charter, of which the Statute is an integral part.

***
The case of Thailand is directly instructive on the issue here examined as well as with regard to the asserted effect of the dissolution of the Permanent Court. For reasons which are not relevant in the present context, Thailand did not participate in the Conference of San Francisco. On 3rd May, 1940, she had renewed for a period of ten years her previous declaration of acceptance. She did not become a Member of the United Nations till 16th December, 1946, that is to say, seven months after the dissolution of the Permanent Court. According to the view which excludes non-participating States from the operation of paragraph 5, the Declaration of Thailand, made in 1940 for ten years, became a dead letter on the date of the dissolution of the Permanent Court, namely, on 18th April, 1946. This was not the view of Thailand. She considered herself bound by the Declaration of 1940. Accordingly, she did not deem it necessary to take any action prior to the expiration of the full period of ten years as laid down in her Declaration of 1940. When that period expired, she renewed, as from 3rd May, 1950, her acceptance for another ten years. According to the view which restricts the operation of paragraph 5 to the original [p 183] Members of the United Nations, that attitude of the Government of Thailand was due to a mistaken estimate of the legal situation. However, it was an attitude based on a view which met with no contradiction. Moreover, it is significant that the action taken by Thailand was undertaken regardless of any existing controversy. It was an attitude which, having regard to the absence of other State practice bearing directly on the subject, is of particular weight. We have already referred to the analysis undertaken by Professor Hudson and confirming that Thailand—together with some other States who were not original Members of the United Nations—was covered by the provisions of paragraph 5 of Article 36.

***
In this connection reference must be made to the assertion— which involves an important issue of interpretation—that the object of Article 36, paragraph 5, must be limited to original Members of the United Nations on account of the realities which confronted the States participating at the Conference of San Francisco and of which they must be presumed to have had knowledge. It is asserted that some such limitation must be implied in that paragraph for the reason that while the original Members were able to assess their own situation as it existed at that time and their future attitude to the obligatory jurisdiction of the Court, they were wholly unable to do so with regard to States which might adhere in the future.

We find it difficult to understand what effect any uncertainty as to the future position of those States could have in the matter of continuing, on a footing of equality with other declarant States, their obligations under their declarations of acceptance. It will be noted that, by virtue of Article 93 of the Charter, those States could not subsequently become parties to the Statute without the concurrence of the Security Council and of the General Assembly.

Undoubtedly, the task of interpretation must not be confined to a literal interpretation of the bare letter of a provision. When a treaty is not clear the Court is entitled and bound to take into consideration the circumstances surrounding its adoption. However, we consider that it is not within the province of interpretation to re-write a treaty, by inserting into it extraneous conditions, in reliance on realities of which, it is asserted, the parties were fully cognizant and to which they were in the position to give effect by a form of words of utmost brevity if in fact that had been their intention. They could have done it in the present case by saying in paragraph 5, instead of "as between the parties to the present Statute", "as between the original Members of the United Nations". [p 184]

This they did not do and, clearly, they did not wish to do. Their intention, as shown at the beginning of this Opinion, was to maintain the maximum—not the minimum—of existing declarations. It is particularly appropriate in this connection to draw attention to the principle of interpretation to which the Court gave emphatic expression in the Advisory Opinion on the Acquisition of Polish Nationality: "The Court's task is clearly defined. Having before it a clause which leaves little to be desired in the nature of clearness, it is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it." (P.C.I.J., Series B, No. 7, p. 20.)

Moreover, a closer examination of the realities in question shows that the problem with which, it is asserted, the authors of the Statute were confronted hardly existed. What were these States whose uncertain status and disposition in the distant future made it imperative to exclude them—not by the normal process of direct exclusion but by the indirect method of silence in relation to an otherwise comprehensive provision—from the operation of paragraph 5 of Article 36? These States were nine in number: Bulgaria, Estonia, Finland, Ireland, Latvia, Portugal, Sweden, Switzerland and Thailand. All other declaring States whose declarations had not expired participated in the Conference of San Francisco and became subsequently original Members of the United Nations. As to the nine States referred to above it may be said, in the first instance, that their future attitudes on the question were irrelevant if, contrary to our view, the binding force of their declarations lapsed in any case with the dissolution of the Permanent Court.

However, it is desirable to consider the asserted position of uncertainty with regard to the nine States referred to above. In all the circumstances, of which the Court must take judicial notice, the position of Estonia and Latvia created no problem. The declarations of Ireland, Sweden and Switzerland were due to expire before long and they did in fact expire before those States became parties to the Statute of the International Court of Justice. There thus remained three States—Bulgaria, Portugal and Thailand— whose future position may have given rise to uncertainty. With regard to these States, any dangers of their premature adherence to the Statute or any kind of uncertainty were fully met by the fact that in order to become parties to the Statute they would have either had to be admitted to the United Nations or comply with the conditions determined by the Security Council and the General Assembly in accordance with Article 93 (2) of the Charter. In our view there is no room for an interpretation which alters the terms of paragraph 5 and reduces its effectiveness by reference to realities of such small compass. [p 185]

These considerations also supply an answer to the contention— referred to by Counsel for Bulgaria and confirmed by the records of the Conference of San Francisco—that the draftsmen of the Charter intended to exclude enemy States from the benefits of immediate access to the new Court. However, that intention was not to pursue a policy of permanent ostracism. As shown in the "transitional security arrangements" of Article 107 of the Charter, the intention was to prevent ex-enemy States from obstructing measures connected with the liquidation of the war. To achieve that object, it is not necessary to maintain the much wider, and inaccurate, proposition to the effect that the operation of paragraph 5 was intended to be limited to the original Members of the United Nations. So far as the International Court of Justice was concerned, the object of excluding ex-enemy States from immediate participation in the Court was achieved by laying down that the transfer of the declarations shall operate only in relation to the "parties to the present Statute"—a condition which could not be fulfilled without the concurrence, in due course, of the Security Council and the General Assembly. Any notion, said to have been entertained in 1945, of permanent ostracism of enemy States became a matter of the past when, in 1947, the applications of a number of them were considered by the Security Council and the General Assembly. On that occasion the stated reason for which the application of Bulgaria was opposed by some Governments was not that she was an ex-enemy State but, inter alia, that she had failed to comply with her obligations, contracted in the Treaty of Peace of 1947, to respect human rights and fundamental freedoms. (Security Council, Official Records, Second Year, 1947, No. 81, p. 2132.)

***

Reference may be made in this connection to the Resolution 171 (II) adopted by the General Assembly on 14th November, 1947. In that Resolution the General Assembly "draws the attention of the States which have not yet accepted the compulsory jurisdiction of the -Court in accordance with Article 36, paragraphs 2 and 5, of the Statute, to the desirability of the greatest possible number of States accepting this jurisdiction with as few reservations as possible" (Resolution 171 (II)). The italicized words "have not yet accepted" are of particular interest. They suggest that in November 1947, in the view of the General Assembly, the force of paragraph 5 had not yet been spent; on that view paragraph 5 had still some application notwithstanding the dissolution of the Permanent Court. It was in fact acted upon by Thailand when the time came to renew her declaration. It may be added that this part of the Resolution is also of interest inasmuch as it is addressed not to Members of the United Nations, or to States Members, but to [p 186] States—an indication that in this matter action by reference to paragraphs 2 and 5 of Article 36 was not limited to original Members or even existing Member States. It is clear from the terms of that Resolution, when read in its entirety, as well as from the general practice of the United Nations, that particular care was taken in the choice of terminology in this respect—namely, whether a Resolution is addressed to a State, or a Member State, or a Signatory.

***
The preceding considerations show that having regard to its wording and the history of its adoption, as well as to applicable principles of international law, the operation of paragraph 5 of Article 36 is not limited to the declarations of those States which participated in the Conference and which became parties to the Statute when the Charter entered into force on 24th October, 1945. It is applicable to all declarations which were made under Article 36 of the Statute of the Permanent Court and the time-limit of which by their own terms ratione temporis, had not expired. It is applicable to all declarations which, their duration not having been terminated by expiration of time, "are still in force" at the time when the declarant State by its own free will becomes a party to the new Statute. For these reasons, we feel bound to dissent from the Judgment of the Court in so far as it adopts the view that paragraph 5 of Article 36 applies only to original Members of the United Nations and does not therefore apply to the Bulgarian Declaration of 1921.

***
For the reasons stated, we are unable to accept the view that paragraph 5 of Article 36 is inapplicable to Bulgaria. We are unable to accept that view either by reference to the ground, relied upon by Bulgaria, that the dissolution of the Permanent Court finally and irrevocably deprived her Declaration of 1921 of all legal force, or by reference to the ground, not invoked by Bulgaria and not argued by the Parties, that paragraph 5 of Article 36 applies only to the original Members of the United Nations. In our opinion that provision of the Statute clearly applies to Bulgaria. By adhering to the Charter and, in addition, by formally and expressly declaring her intention and determination to respect all the obligations of the Charter—of which the Statute is an integral part—Bulgaria gave her consent to the jurisdiction of the Court as confirmed and continued by that provision. [p 187]

The jurisdiction of the Court is based on the consent of States. That principle is too firmly established in the jurisprudence of the Court and in international law in general to require confirmation by reference to precedents or otherwise. Their authority is beyond challenge. However, such precedents are altogether irrelevant in the present case. The required consent was given by Bulgaria when, on becoming a Member of the United Nations, she accepted the obligations of Article 36, paragraph 5, together with other obligations of the Charter and of the Statute. There is no suggestion that, without her consent, she should be considered bound by her Declaration of 1921 in relation to the International Court of Justice.

If—as is our view in the present case—paragraph 5 of Article 36, when interpreted in accordance with the ordinary meaning of its terms and its clear object as intended by its authors, must be held to be applicable to Bulgaria, her consent is directly established by her adherence to the Charter. It was not necessary that that consent should be given yet another and additional expression. No such additional consent was required with regard to the numerous and more substantial obligations of the Charter by which Bulgaria became bound on becoming a Member of the United Nations. We are unable to accept the view that obligations of judicial settlement of disputes on the basis of international law are so drastic and exceptional as to necessitate such double consent—especially with regard to a provision which, far from creating a new obligation either in substance or in duration, is limited to the transfer, to what is essentially and indisputably an identical judicial organ, of existing declarations "for the period which they still have to run and in accordance with their terms". The meaning and the purport of paragraph 5 of Article 36 must not be confused with paragraph 2 of the same Article which embodies the system of the Optional Clause. The two paragraphs cover two different situations. Paragraph 5, which maintains in force declarations already made, operates automatically by virtue of the declarant State becoming a party to the Statute; no additional consent is required in that case. Paragraph 2 requires consent expressly declared.

Accordingly, we consider that it is irrelevant in this connection to invoke the unchallenged principle that the jurisdiction of the Court must be invariably based on the consent of the parties and that it must not be presumed. The requirement of consent cannot be allowed to degenerate into a negation of consent or, what is the same thing, into a requirement of double consent, namely, of confirmation of consent already given. The Washington Committee of Jurists, mentioned at the beginning of this Opinion, envisaged [p 188] the necessity of providing, by way of some special clause, for the maintenance of existing declarations. One of its sub-Committees proposed that "provision should be made at the San Francisco Conference for a special agreement for continuing these acceptances in force for the purpose of this Statute" [United Nations Conference on International Organization, Vol. 14, pp. 288-289). That suggested provision assumed at the Conference of San Francisco the form of the existing paragraph 5 of Article 36. It is difficult to imagine that, in addition to that provision, paragraph 5 envisaged the necessity of a further, and more specific, agreement.

***
We must now consider whether there is some other legal ground, independent of the interpretation of the terms of paragraph 5 of Article 36, which places an obstacle to its application to Bulgaria in the circumstances of the present case. In particular, having regard to some considerations underlying the Judgment of the Court, it is necessary to consider whether that provision, whose meaning in itself leaves no room for doubt, can be applied consistently with the requirement of reasonableness. Can it be so applied in relation to an application brought before the Court twelve years after the entry into force of the Charter and eleven years after the dissolution of the Permanent Court and the establishment of the International Court of Justice? To what extent can it accurately be maintained that it is that factor of reasonableness which must decisively influence the interpretation of paragraph 5 of Article 36 in the sense that unless that provision is held to have been intended to apply only to the original Members of the United Nations there was a danger that other potential parties to the Statute might be in a position to act upon paragraph 5 at an unreasonably distant future far removed from the establishment of the International Court of Justice?

In applying a legal provision, the Court must not ignore circumstances of fact relevant to the test of reasonableness. Such facts, if relevant, might defeat the claim of the applicant Government to a remedy by the Court although there is nothing in paragraph 5 of Article 36 as such to defeat it. However, we have been unable, after full consideration, to come to the conclusion that in the pre-sent case any such circumstances are sufficiently weighty to deprive the applicant State of a remedy to which it may otherwise be entitled.

With regard to the duration of the operation of paragraph 5, it would appear from that provision and the reasons which prompted [p 189] its adoption that it was intended to be of a transitional character. Undoubtedly, there is inherent in the very notion of transition a certain limitation of time. Thus it would be unreasonable to maintain that the period of transition from the Permanent Court to the International Court should last half a century. To contend that would be as unreasonable as to maintain that it should last only six months, for instance, for the period between the coming into force of the Charter in October 1945 and the dissolution of the Permanent Court in April 1946. The question bearing on the effect of the lapse of half a century can be disregarded for the reason that the extravagance of an affirmative answer is due largely to the exaggeration inherent in the question.

It is consistent with enlightened practice and principle to apply the test of reasonableness to the interpretation of international instruments—a test which follows from the ever present duty of States to act in good faith. However, the test of reasonableness must itself be applied in a reasonable way; it must not be applied by reference to contingencies which are in themselves of a manifestly exaggerated character," it must not be applied by reference to examples bordering on absurdity. If a State invokes a provision, fully grounded in the treaty, after twelve years from the date of its adoption, it is contrary to the true test of reasonableness to defeat its claim on the ground that it would be wholly unreasonable for it to invoke the treaty after fifty or one hundred years. If the manner in which a State invokes a treaty in a particular case is reasonable, it is unreasonable to suggest that the interpretation on which it relies might in extreme cases produce unreasonable results. The Court is not confronted with a situation arising in 1995. It is faced with a situation which arose in 1957 when Israel invoked the jurisdiction of the Court. That situation is determined by the entry into force of the Charter and the Statute in 1945; by the Bulgarian application for admission to the United Nations in 1947; by her solemn declarations, made in 1948 and subsequently reiterated, accepting all the obligations of the Charter and the Statute; and by her admission to the United Nations in 1955. It is true that the Bulgarian Declaration of 1921 is now the last declaration to which there apply the provisions of paragraph 5 of Article 36. But this cannot properly be a reason for refusing to give effect to it. The periods involved are only twelve years since the Charter came into force and only two years since Bulgaria became a Member of the United Nations. International jurisprudence—including that of the Court itself—shows instances of application of provisions of treaties concluded in the more distant past.

The Bulgarian Government at no time contended that the Declaration of 1921 had escaped its notice—though it explained [p 190] that it deemed it unnecessary to take steps for releasing itself of the operation, if any, of the Declaration.

***

It may appear singular, at first sight, that the Bulgarian Declaration of 1921, which had ceased to be operative in relation to the Permanent Court of International Justice on the dissolution of that Court, should be deemed to be "still in force" ten years after the entry into force of the Charter—when Bulgaria became a Member of the United Nations and ipso facto a party to the Statute of the International Court. However, the delay in its admission was due to external circumstances. In view of the true sense of the phrase "which are still in force", that delay is not relevant to the question of the applicability of Article 36, paragraph 5. That provision is clearly not subject to any time-limit. Bulgaria first applied for membership in 1947. The international situation prevented her early admission and delayed her becoming a party to the new Statute. This is an extrinsic cause which cannot affect the legal force of Article 36, paragraph 5. If Bulgaria had become a Member of the United Nations at the end of 1946, or in 1947, or even 1950, the transitional provisions of the clear terms of paragraph 5 would fully apply to her. We acknowledge that there is room for the view that on and after 1950 the transition may be held to have been accomplished; that by that time, with the exception of declarations of indefinite duration, practically all declarations covered by paragraph 5 had lapsed or been replaced by new declarations; and that the continuity of the Permanent Court was no longer an object to be fulfilled. To that extent it might be contended, without obvious exaggeration, that it is unreasonable to resuscitate the operation of paragraph 5 after that period.

On the other hand, it is of importance not to exaggerate the degree of unreasonableness involved in the contrary solution. There is nothing manifestly unreasonable in itself in invoking in 1956 the Bulgarian Declaration of 1921—a declaration which in 1945 was given a new potential lease of life in the Statute of the Court and which was confirmed by the entry of Bulgaria into the United Nations in 1955 and, in the preceding years, by her repeated affirmation of the intention to be bound by the resulting obligations. Moreover—and this appears to be a material consideration with regard to that aspect of the case—it seems to us inadmissible that a State should be deprived of its rights under an international instrument for the reason that its object has been substantially, though not fully, realized. So far as that State is concerned, it is its interest in that instrument which constitutes its main object. [p 191]

It matters little to that State—in the present case the applicant State—that most or all other parties have already benefited from it and acted upon it. Unless the interested State has been guilty of negligence or bad faith in pursuing its legal rights, it is entitled to expect that the treaty will be given effect.

***

For similar reasons there is an obvious objection to introducing into the interpretation of paragraph 5 the extraneous factors of the dissolution of the Permanent Court and of the limitation of its scope to the original signatories of the Charter and justifying such interpretation by asserting that its results constitute all that the framers of the Statute could have reasonably hoped to have achieved. In our view the reasonable expectation is one which results from the interpretation of paragraph 5 in accordance with its terms without adding extraneous considerations. There is a lack of cogency in the suggestion that the result of the interpretation thus adopted by way of introduction of extraneous elements is, today, to exclude in effect only a small number of States—perhaps merely one— from the operation of that provision. The legal right of a State must not be disregarded for the reason that it is the right of one State only. Moreover, as already stated, for all the draftsmen of the Statute knew, the effect of adopting as part of paragraph 5 extraneous tests, such as the dissolution of the Permanent Court or the requirement of original membership of the United Nations, might have been such as to exclude a considerable number of States.

Above all, in judging the reasonableness or otherwise of the reliance by a State on the terms of an international instrument, some regard must be had to the nature of the right invoked. It is one thing for the Court to cut down, by reference to the test of reasonableness, a substantive claim which causes unfair hardship or which, through an abusive reliance upon a legal right, puts in jeopardy important interests of the defendant State. It is another thing to deny, by reference to the test of reasonableness, a demand, based on a valid instrument, that the principal judicial organ of the United Nations should adjudicate upon a controversy by reference to international law. A State ought not to be deemed to be acting improperly if in reliance—even if it be rigid reliance—upon a valid instrument it asks the Court to declare its competence to administer international law. It is only in most exceptional circumstances that a demand, based on a valid treaty, for the exercise of the primary function of the Court to administer justice based on law can be held to be unreasonable. These exceptional circumstances may include the operation of the rule of extinctive prescription after a [p 192] prolonged period of inaction on the part of the applicant State. No such ground has been invoked here.

In the matter of its jurisdiction it is fundamental that only the legitimate rights of the parties can supply a basis for the decision of the Court. In this matter we feel bound to adhere to the past jurisprudence of the Court which, while consistently treating the element of consent as the decisive factor, has applied the test of reasonableness as a motive not for defeating but for upholding its jurisdiction. It did so, early in the history of the Permanent Court, when in the Mavrommatis Palestine Concessions case it considered that its jurisdiction was not defeated by the fact that the negotiations, required by the Mandate, had taken place not between Governments but between a Government and the interested private party (P.C.I.J., Series A, No. 2, pp. 13-15). It did so, on a number of occasions, when it interpreted consent to its competence to decide whether there was a breach of international obligation as implying consent to its competence to award compensation for any breach of international obligation (case of Certain German interests in Polish Upper Silesia, P.C.I.J., Series A, No. 7, pp. 23, 25; Corfu Channel case, I.C.J. Reports 1949, p. 26). It frequently acted in the same way when it interpreted the conduct and the pleadings of the parties as constituting implied consent to its jurisdiction (Rights of Minorities in Polish Upper Silesia, P.C.I.J., Series A, No. 15, pp. 23, 24). We see no reason for departing in the present case from that practice of the Court.

***
We deem it necessary to examine a contention which, although not referred to in the Judgment of the Court, has acquired some slight prominence and which bears on the interpretation of paragraph 5. That contention is that the words in the concluding passage of paragraph 5—"for the period for which they still have to run"— imply that that paragraph covers only those declarations which contain a time-limit of their validity and that therefore it does not embrace declarations, such as that of Bulgaria, whose duration is not definitely circumscribed by a limited period of time. While that assertion did not appear either in the oral submissions or in the Conclusions of Bulgaria, it found some place in her written Preliminary Objections. From the point of view of purely conceptual interpretation—for it is on that basis that the argument rests—the form of words of the concluding passage as cited may cover declara-[p 193]tions of indefinite duration; for, in strict logic, these have still to run for such indefinite time as they may last. However, in our view these words can have only one meaning, namely, that which is conveyed by the clear purpose which underlay them: in providing for the transfer to the present Court of the existing declarations, the Statute cannot be presumed to have intended that they should continue regardless of the period for which they have still to run. They were to be maintained "for the period which they still have to run and in accordance with their terms". If there had been an intention to exclude from the purview of paragraph 5 declarations of unlimited duration, that intention could have been expressed by the addition, at the end of the paragraph, of a simple form of words: "This provision does not apply to declarations which contain no time-limit of their duration."

It is not necessary to examine further this particular contention except to the extent of drawing attention to its consequences. Its result would have been, in 1945, to cut by one half the number of States otherwise contemplated by a provision intended to secure the maintenance of the existing jurisdiction of the Court. It would have eliminated declarations which contain no provision for denunciation as well as those which, although originally containing a provision for possible denunciation, had, by their terms, been transformed into declarations without a time-limit. The latter were declarations of a considerable number of States, such as those of the United Kingdom and Iran which, although expressed initially for a fixed number of years, contained a clause whereby subsequent to that period the declarations were to run for an indefinite period, until denounced. After the expiration of the initial period, the duration of these declarations was indefinite. According to the contention here examined they, too, would have to be considered as having remained outside the operation of paragraph 5 and therefore extinguished as the result of the dissolution of the Permanent Court. Thus the declaration of Iran of 2nd October, 1930, was for a period of six years and, after expiration of that period, until notification of abrogation. If the interpretation excluding declarations of indefinite duration from the operation of paragraph 5 were correct, then the Iranian Declaration was of no validity when on 26th May, 1951, the Government of the United Kingdom lodged with this Court an application invoking that declaration in the case of the Anglo-Iranian Oil Company. No such ground of invalidity was advanced by the Iranian Government or referred to by the Court.

Moreover, if the interpretation contended for had been adopted by the Court in the present case, its result would be to invalidate, as from the date of the Judgment of the Court, the existing declara-tions of a number of States—such as Colombia, Haiti, Nicaragua and Uruguay. [p 194]

It would be difficult to comprehend the ratio legis of the provision in question so unexpectedly expressed by verbal indirection. It is hardly probable that the occasion for maintaining the jurisdiction of the Court was used by the authors of the Statute as an opportunity for freeing a number of States of what has been described as the unreasonable burden of declarations of unlimited duration and for cutting down by one half the number of declarations which would otherwise naturally be in the contemplation of paragraph 5.

It will be noted that the effect of the exclusion from the scope of the operation of paragraph 5 of declarations which are in form or in substance of unlimited duration as well as declarations of States which did not participate in the Conference of San Francisco would be to reduce to seven the number of declarations covered by that paragraph. These would be the declarations of Argentina, Belgium, Bolivia, Brazil, Denmark, the Netherlands and Norway. This does not seem to be an acceptable interpretation of a provision the intention of which was to maintain the jurisdiction of the Permanent Court as a significant measure of compromise between the obligatory and the voluntary jurisdiction of the Court.

***
For the foregoing reasons we are of the opinion that the First Preliminary Objection of Bulgaria must be rejected and that the Court should have proceeded to examine and to adjudicate upon the other Preliminary Objections.

(Signed) Hersch Lauterpacht.

(Signed) Wellington Koo.

(Signed) Percy C. Spender.

[p 195]
DISSENTING OPINION OF JUDGE GOITEIN

It is with diffidence that I dissent from the judgment of the majority of the Court. I am strengthened in the decision I have come to by the views of my learned colleagues who have dissented. These appear to me to give a less strained interpretation of the Statute that binds us than that adopted by the majority, and their reading of the law enables this Court to fulfil and not deny the purpose for which it was founded.

Bulgaria has submitted no facts to this Court and we can therefore only rely on those stated in the Israel Memorial, facts which have still to be proved. The chronicle of events, as set out by the Government of Israel, is as follows: "On July 27,1955, a civil passenger aircraft, registered in Israel... while on a scheduled commercial flight from London to Lod ... came down in flames in the region of Petritch, Bulgaria. Not one of the occupants of this aircraft—fifty-one passengers and seven members of its crew—survived the disaster... the Bulgarian Government, on 28 July, officially... announced how this had come about. That Government's armed forces had shot down and destroyed the aircraft, killing all its occupants. This was amplified ... on 4 August when the Bulgarian Government ... again gave out that its armed forces had destroyed the aircraft, those armed forces having acted in haste and without taking all the necessary measures... The Bulgarian Government gave ... undertakings regarding the identification and punishment of those guilty ... as well as regarding the eventual payment of compensation." (See the full text on pp. 4 and 5 of the Memorial of the Government of Israel.) After setting out the above chronicle of events, and after referring to the diplomatic negotiations which had failed to bear fruit, the Government of Israel stated that it had turned to this Court and prayed that it formally declare "that Bulgaria is res-ponsible under international law for the destruction of the aircraft and by determining the amount of compensation due". (Ibid., p. 5.)

If the facts are as stated in the Memorial, as summarized above, then this would appear to be a dispute with which this Court and this Court alone is competent to deal. In my opinion, therefore, this Court should be anxious to right a wrong and take upon itself to judge between the Parties before it. The Court should refuse to exercise jurisdiction only if its Statute clearly and unequivocally withholds jurisdiction from it. I shall show in this Opinion that far from withholding jurisdiction from the Court, the law unequivocally clothes it with power to decide the present dispute. The Statute of [p 196] this Court, which otherwise follows that of the Permanent Court, enacted a special paragraph—paragraph 5 of Article 36—precisely in order to clothe this Court with the jurisdiction it might otherwise have been unable to exercise.

I respectfully agree with my colleagues in the majority that this Court must first be satisfied that the Parties have voluntarily submitted to its jurisdiction before it can take upon itself to decide a dispute brought before it. I do not agree that that voluntary submission may not be inferred from an express presumption of law laying down that such a submission has been made.

The Israel Government in its Memorial (pp. 3 and 4), in order to show that this Court had jurisdiction, relied upon Declarations which had been made by both Parties accepting such jurisdiction. Reference was made to the Declaration of Israel dated 3rd October, 1956, and to that of Bulgaria dated 12th August, 1921. I shall refer to the latter in this Opinion as the Bulgarian Declaration. In its First Preliminary Objection, the only one with which the judgment of the majority, and hence this Opinion, deals, the Bulgarian Government submitted that "Article 36, paragraph 5, of the Statute of the International Court of Justice is inapplicable in regard to the People's Republic of Bulgaria."

The question whether this Court has or has not jurisdiction depends accordingly on the true interpretation of that paragraph, and on the answer to the question whether that paragraph is applicable to the Bulgarian Declaration. Indeed, the question raised by the First Preliminary Objection of Bulgaria may be confined to narrower limits: what is the meaning of the words in that paragraph "still in force" and of the words "parties to the present Statute" ? In the ultimate analysis the Preliminary Objection may be accepted or rejected in accordance with the interpretation given to the latter words alone.

I will first read the paragraph as a whole, without taking into consideration the submissions made on behalf of Bulgaria and without referring to the reply of the Agent for the Government of Israel.

The submissions of Counsel for Bulgaria were intended to show that the terms of Article 36 (5) of the Statute were not applicable to the present case. To reach this conclusion he was forced to give a special and peculiar meaning to the words used in the paragraph in question, and in accepting his submissions the majority of this Court has—and I say this with the greatest respect—been bound to give meanings to the terms employed by the legislator which are not their ordinary meanings, and this Court has been forced [p 197] to take into account considerations which, it seems to me, are irrelevant.

The opening words of the paragraph are: "Declarations made under Article 36 of the Permanent Court of International Justice..." It is agreed that Bulgaria made such a Declaration. The opening words, therefore, as applied to the present case, may be interpreted as: "The Bulgarian Declaration ..."

The following words are, in the English text, "which are still in force", or, in the French text, "pour une durée qui n'est pas encore expirée". Although I shall enlarge on this phrase in the following paragraphs, here it may be said that there is no difficulty in giving the ordinary and natural meaning to this phrase. As the present tense is used and the word "still", the interpreter of these words, without any reference to dictionaries, would understand that the legislator is speaking as of the Statute date. A declaration existing on 24th October, 1945, was one to be "caught up" by the paragraph. The French text, however, which is as binding upon us as the English, suggests that a declaration is still in force when it has not come to an end by effluxion of time. Counsel for Bulgaria was well aware of this and he vainly tried to find support in the Spanish, Russian and Chinese texts rather than the French and, being a Frenchman, expressed his regret at this unpatriotic preference. But it needs more than mere pleading to make words change their meaning. The words, therefore, "which are still in force" mean, as I have said, in force on the Statute date, or, alternatively, refer to declarations which have not come to an end by effluxion of time.

Was the Bulgarian Declaration still in force in October 1945? There is no doubt that it was. Here, too, the Bulgarian delegation does not contend otherwise. It claims that the Declaration "died" in the following year upon the dissolution of the Permanent Court. The Declaration was also in force because it had not expired by the effluxion of time. Nor had it been denounced. It was therefore a declaration covered by Article 36 (5). I accordingly read that part of Article 36 (5) which I have now discussed as "The Bulgarian Declaration, which is still in force..."

The following words of the paragraph are: "shall be deemed". Reading these words I would infer that the legislator is about to lay down a legal presumption which would apply to the Bulgarian Declaration from the Statute date and for the future. Here it is important to stress, because the Bulgarian Government's representatives appear to have overlooked this elementary fact, that the legislator is not stating the legal position as it was at the time but [p 198] the legal position as he was declaring it to be from the date of the enactment of the Statute and for the future. The draftsman must have been fully aware of the fact that the Bulgarian Declaration was in the nature of a consensual undertaking, made in connection with a Court that was about to disappear and that not a jot of it could be altered without the consent of Bulgaria. Nevertheless, as far as concerned those who were or wished to be Members of the United Nations, their declarations were from now—the year 1945— and for the future to be deemed (seront considérées) to be declarations made in connection with the new Court, the International Court of Justice.

The presumption would be as valid in 1955 as in 1945—provided, of course, that Bulgaria had in the meantime become a Member of the United Nations. With that point I shall deal when I come to the words which follow. The paragraph, as applied to the present case, now reads: "The Bulgarian Declaration, which is still in force, shall be deemed..."

The words which follow are "as between the parties to the present Statute". I have already said that, in the final analysis, these are the critical words of the paragraph and the basic difference between the majority of this Court and those dissenting lies in the interpretation to be given to these words. There is no difficulty about the words "present Statute". The word "present" appears because the Statute of this Court (as is stated in Article 92 of the Charter) is based on that of the Permanent Court, but nothing depends on this word. Nor does any question arise as to the word "Statute". What, then, is the meaning of "the parties" in the context of "parties to the present Statute"? The same words are found when the Court is first mentioned in the Charter. Article 93 reads :

"All Members of the United Nations are ipso facto parties to the Statute..."

Article 94 reads:

"Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice."

Unless there were a contrary intention expressed in Article 36 (5) of the Statute, I would see no way of interpreting the words "parties to the present Statute", except as is expressly declared to be their meaning in Article 93 of the Charter. No contrary intention is expressed in Article 36 (5); therefore, using ordinary canons for the interpretation of Statutes, I would hold without hesitation that whenever a State becomes a Member of the United Nations it becomes a "party to the present Statute", and the words found in Article 36 (5) of that Statute apply specifically to that State. (For the purposes of the present case it is not necessary to refer to those States which "may become a party to the Statute'' under Article 93 (2) [p 199] of the Charter.) If further elucidation of the words were necessary, one might turn to paragraph 2 of the selfsame Article 36, where precisely the same phrase is used, "the States parties to the present Statute", which must refer to Members of the United Nations, whether to those who were Members at the time of the enactment of the Statute or to those who would subsequently become Members, ten or twenty or thirty years later. Any inter-pretation which would give one meaning to the words "parties to the present Statute" in Article 36 (2) and a different meaning to those words in Article 36 (5) would be untenable. Again, the words "parties to the Statute" appear in Article 36 (4) and obviously refer to all Members of the United Nations and not to the original signatories of the Charter. The majority of the members of this Court are of the opinion that in Article 36 (5) the words "parties to the present Statute" must be confined to original signatories of the Charter, and not to those who subsequently became "parties to the present Statute". When the legislator wished to refer to "original Members" he did so in plain words (see for example Article 3 of the Charter). The words in Article 36, paragraph 5, cannot accordingly be confined to "original Members". I therefore read the words of the paragraph so far discussed as meaning: "The Bulgarian Declaration which is still in force shall be deemed as between Members of the United Nations..."

The questions that next arise are whether Bulgaria, when raising its Preliminary Objection or, earlier, when Israel brought its dispute with her before this Court, was (a) a Member of the United Nations and therefore ipso facto a party to the Statute, and (b) whether it had or had not denounced its Declaration—for there is no question of effluxion of time—and (c) whether Israel was a Member of the United Nations and a party to the Statute. The answer to (a) is that Bulgaria had become a party to the Statute in December 1955. The answer to (b) is that Bulgaria had at no time and has not until today denounced its Declaration, and the answer to (c) is that Israel was at all relevant dates a Member of the United Nations and a party to the Statute.

I come now to the last words of the paragraph which need concern us and which have not directly given rise to any question of interpretation. The words are: "to be acceptances of the compulsory jurisdiction of the International Court of Justice...".

These words mean that a declaration under Article 36 of the Statute of the Permanent Court accepting the compulsory jurisdiction of that Court shall from the date of the Statute and for the future be deemed to be a declaration accepting the compulsory jurisdiction of this Court, the International Court of Justice.

As applied to the present case, Article 36 (5) now reads: "The Bulgarian Declaration which is still in force shall be deemed, as between Members of the United Nations, to be acceptance of the [p 200] compulsory jurisdiction of the International Court of Justice."

It would accordingly follow that the law presumed that Bulgaria, having voluntarily submitted to the jurisdiction of the Permanent Court, had voluntarily submitted to the jurisdiction of this Court. That would lead me to overrule the first Bulgarian Preliminary Objection.

Counsel for Bulgaria, however, submitted to us that we were not entitled to read Article 36 (5) as it stands but that we must give a special meaning to the phrase "which are still in force" and that there must be some contemporaneity: that is to say, the State must be a Member of the United Nations while its declaration is still in force and that no declaration of a non-Member could survive the dissolution of the Permanent Court. The paragraph does not support this contention, so the Bulgarian Delegation would ask us to read into the words: "still in force" the following: "which shall at the time the Declarant becomes a Member of the United Nations, provided always that the Permanent Court has not been dissolved, be still in force".

For the "parties to the present Statute", Counsel for Bulgaria would apparently read "parties to the present Statute at the time of the dissolution of the Permanent Court". To interpret the former expression he would add some twenty-four words and to interpret the latter some ten words. He did not explain to us why, if that was the intention of the legislator, the appropriate words had not been used. I do not remember that he contended for the interpretation which the majority of the Court has given to the phrase.

It would appear as if the majority of the Court accepts part of this Bulgarian contention. If the words are capable of a reasonable interpretation according to their ordinary meaning, it does not seem to be consonant with a proper interpretation of the Statute to add words which are not there. The interpretation which I have adopted is that the time referred to in the words "are ... still..." is the Statute date or, in the alternative, that the words used refer to a declaration which is no longer in force by effluxion of the term for which it was made. Accordingly, there is no need to alter the wording of the paragraph to give it the meaning contended for by the Government of Bulgaria. The legislator in our case has done something very simple. "Live" declarations at the time of the enactment are to be kept alive for the future. These might "die" with the "death" of the Permanent Court, were they not kept "alive" by Article 36 (5).

It is at this point that the second divergence appears between the majority of the Court and the Judges dissenting. The Bulgarian [p 201] representatives repeated over and over again that once the tree was felled the branches died with the tree. The tree, of course, was the Permanent Court and the Bulgarian Declaration was the branch. Counsel for Bulgaria said:

"Mais à partir de la dissolution de la Cour permanente, cette déclaration s'est trouvée dans la situation bien connue de la fameuse jument de Roland, qui elle aussi avait toutes les qualités, mais, par malheur, elle était morte. Et aucun historien n'a jamais prétendu qu'après ce petit accident elle était encore en vie."

Nothing could revive the dead branch, just as nothing could revive the dead horse. This is to misunderstand the whole purpose of the paragraph. Perhaps rather than a misunderstanding, it is an attempt to nullify the paragraph. An acceptance of the paragraph as it stands inevitably puts an end to the first Bulgarian Preliminary Objection. It must, therefore, be read away, removed from the Statute. There are several ways of doing this. One, as I have said, is to misunderstand its whole purpose. The other is to submit that perhaps the Conference of San Francisco, at which Bulgaria was not present, could not have enacted the paragraph for, by doing so, it would have been acting ultra vires: the Conference could not keep alive, without the consent of Bulgaria, a declaration that was doomed to "die" with the "death "of the Permanent Court. This was soberly argued before us and it would seem as if echoes of the latter part of this submission are to be found in the Judgment of the majority.

Article 36 contemplates two kinds of declarations:

(1) those to be made by Members of the United Nations in the future (paragraph 2);

(2) those already made by States (whether at the time Members of the United Nations or not) in the past in connection with the Permanent Court (paragraph 5).

The legislator knew that the Permanent Court was in extremis and that it would soon be dissolved, to make room for the International Court of Justice. If there were no legislation to prevent it, the declarations made in connection with the Permanent Court would indeed, as Counsel for Bulgaria argued, come to an end. The legislator, anxious that all the progress that had been made between the two wars in furthering international jurisdiction should be preserved, legislated for the preservation of declarations already made. The Permanent Court would be dissolved: the declarations would survive. That is why Article 36 (5) was enacted, and there is nothing in the paragraph that even hints that the declarations in question should survive only until the dissolution of the Permanent Court. To introduce the proviso into the paragraph that the decla-[p202]rations were to end with the end of the Permanent Court is not to read but to misread the paragraph. This Court is being asked not to interpret the law but to make new law. In so far as the majority of this Court bases its Judgment on this submission of Counsel for Bulgaria it is not, in my opinion, interpreting the Statute as it stands but is remoulding it as it considers it should have been drafted.

The further argument that the paragraph is somehow ultra vires need not detain us long. Article 92 of the Charter lays it down that this Court "shall function in accordance with the annexed Statute which ... forms an integral part of the present Charter". Article 1 of the Statute lays it down: "The International Court of Justice ... shall function in accordance with the provisions of the present Statute." This Court has no authority to look behind the articles of the Statute and question the right of the legislator to enact any particular article or paragraph. We only exist as creatures of the Statute, and the only decisions we are authorized to make are those made in accordance with the Statute as it is: not as we might like it to be.

A further reply to the Bulgarian contention is that on becoming a Member of the United Nations Bulgaria accepted "the obligations contained in the present Charter" (Charter, Article 4), and thus became "a party to the Statute of the International Court of Justice" (Charter, Article 93) and was bound by Article 36 of the Statute as by all the other articles thereof.

Long before her admission to the United Nations, the Bulgarian Government had publicly declared in 1948 (see Annex 43 at the end of the Written Observations of the Government of Israel) its adherence to the Charter and, therefore, to the Statute of this Court. These are the terms of the declaration:

"In the name of the People's Republic of Bulgaria, I ... declare that the People's Republic of Bulgaria hereby accepts without reserve the obligations arising from the United Nations Charter and promises to observe them as inviolable from the date of her accession to the United Nations."

Before December 1955, when Bulgaria was admitted as a Member of the United Nations, she had two clear courses open to her: to refuse to become a Member of the United Nations, or to denounce her Declaration of 1921. She chose to become a Member: she did not denounce her Declaration. Whether the States at San Francisco had the authority or not to enact Article 36 (5), Bulgaria ratified what had been done there when she became a Member of the United Nations without denouncing her Declaration.

I hold, therefore, that there is no reference to the dissolution of the Permanent Court in Article 36, which gives a terminus ad quem [p 203] for declarations, and we are not entitled to read such a reference into the Article. Further, we are not entitled to ask the question whether the States at San Francisco were authorized or not to enact a paragraph that might affect a State not present at San Francisco; in any event, Bulgaria ratified what had been done at San Francisco and accepted all the obligations of the Statute when she became a Member of the United Nations.

Reference must be made to two other contentions. Both of these were stressed by the Bulgarian delegation and both appear to have played some part in leading the Court to arrive at its conclusion. One contention was that even if Article 36 (5) did at one time apply to the Bulgarian Declaration, it could not be supposed that the paragraph kept alive a dead declaration for ten years. So to read a transitional section of the law would be to give an unreasonable interpretation to it. The second contention was that this Court could not possibly accept jurisdiction unless Bulgaria had speci-fically and in clear terms accepted the jurisdiction of this Court. Submission to jurisdiction must not be inferred.

The former contention was buttressed by a large number of illustrations from the Russian theatre and from Scandinavian folklore, but not by any sound submission in law. It was said that a declaration could not wander about in the Land of Shades from 1945 to 1955 and then, by the touch of a magic wand, come to life. It was argued further that if, between those years, Bulgaria had been brought before this Court, she would have had a complete answer, namely, that she was not a party to the Statute. If, therefore, in the year 1953 Bulgaria could not have been bound by her Declaration of 1921, she could not be bound by it in 1957. These arguments, however attractively and persuasively put before us, cannot convince so long as Article 36 (5) stands, and their submission was but another attempt not to interpret but to repeal the paragraph. If the legislator chose to consider a declaration as binding upon Members of the United Nations, whenever they might become Members thereof, it might certainly happen, as it did in this case, that a particular declaration would not be effective for a number of years. In the present case, also, the mention of the period of ten years is misleading. Not alone did the law keep the Declaration alive, but the Bulgarian Government did so as well. For in 1947, within two years of the enactment of the Statute, Bulgaria was asking to become a Member of the United Nations. In 1948 she made the solemn declaration I have cited above. She continued to press for admission throughout the years until 1955. It was due to political considerations, not dependent on Bulgaria, that she was not admitted earlier. On the correct reading of the Statute, of which she was continuously asking to become a party, her Declaration was still alive and would become effective on the day she became a Member. At least from 1947, Bulgaria was continuously breathing [p 204] the breath of life into an ancient declaration, a declaration voluntarily made in 1921 and, according to the argument of the Bulgarian delegation, still alive in 1946.

As has been said, at no time during those years did she denounce her Declaration. In the light of these facts, it cannot be held that her Declaration lived in a World of Shades. It lived a full life in the Permanent Court for a quarter of a century, it lived in this Court for the next ten years, by virtue of two very powerful life-givers, the Statute and the People's Republic of Bulgaria.

The second contention, that an acceptance of jurisdiction must be explicit and not implicit, appears to have been accepted by this Court in its Judgment. The draftsman of the Statute drew no such distinction. He made provision for two kinds of declarations, those made in the past, those to be made in the future. Future declarations are dealt with in Article 36 (2), and past declarations in Article 36 (5). There is no particular sanctity given to the former nor less validity to the latter. The only difference the legislator has drawn between them is that the former are to be deposited with the Secretary-General of the United Nations (Article 36 (4)), while the latter, for obvious reasons, need not be. The effectiveness of the two kinds of declarations is the same. New declarations made by States prove that such States "recognize as compulsory ... the jurisdiction of the Court..." (Article 36 (2)). Old declarations made by States are "deemed ... to be acceptances of the compulsory jurisdiction of the ... Court" (Article 36 (5)). It is to be noted that by Article 92 of the Charter, all Members of the United Nations are —the wording is not "are deemed to be"—parties to the Statute. So that when Bulgaria became a Member, she became ipso facto a party to the Statute, and the single presumption made by the Statute was that her voluntary declaration recognizing as compulsory the jurisdiction of thé Permanent Court was a declaration recognizing as compulsory the jurisdiction of this Court.

In my opinion, the First Preliminary Objection of the Government of Bulgaria should be overruled.

(Signed) Goitein.

 
     

 

 

 

 

African Commission on Human and Peoples' Rights | Central American Court of Justice | Committee Against Torture
Committee on the Elimination of Discrimination against Women | Committee on the Elimination of Racial Discrimination
Economic Court of the Commonwealth of Independent States | International Commissions of Inquiry | International Court of Justice
International Prize Court | Permanent Court of International Justice

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.