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[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. |
|
