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[p.27]
The Court,
composed as above,
delivers the following Judgment:
On 6 October 1959, the Minister-Counsellor of the Royal Cambodian Embassy
in Paris handed to the Registrar an Application by the Government of
Cambodia, dated 30 September 1959, instituting proceedings before the Court
against the Government of the Kingdom of Thailand with regard to the
territorial sovereignty over the Temple of Preah Vihear.
The Application invoked Article 36 of the Statute of the Court and the
Declarations of 20 May 1950 and 9 September 1957 by which Thailand and
Cambodia respectively recognized as compulsory the jurisdiction of the
International Court of Justice, as well as the General Act for the Pacific
Settlement of International Disputes of 26 September 1928.
In accordance with Article 40, paragraph 2, of the Statute, the Application
was communicated to the Government of Thailand. 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 by an Order of 5 December 1959. The Memorial was filed within the
time-limit fixed for this purpose. Within the time-limit fixed for the
fifing of the Counter-Memorial, the Government of Thailand filed
preliminary objections to the jurisdiction of the Court. On 10 June 1960, an
Order, recording that the proceedings on the merits were suspended under the
provisions of Article 62, paragraph 3, of the Rules of Court, granted the
Government of Cambodia a time-limit expiring on 22 July 1960 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.
On 10, 11, 12, 14 and 15 April 1961, hearings were held in the course of
which the Court heard the oral arguments and replies of Prince Vongsamahip
Jayankura, Agent, Sir Frank Soskice, Mr. James' Nevins Hyde and Me. Marcel
Slusny, Advocates and Counsel, on behalf of the Government of the Kingdom of
Thailand, and of M. Truong Cang, Agent, and Mr. Dean Acheson, M. Roger Pinto
and M. Paul Reuter, Counsel, on behalf of the Government of Cambodia.
In the course of the written and oral proceedings, the following submissions
were presented by the Parties: [p 20]
On behalf of the Government of Cambodia, in the Application:
"The submissions of the Kingdom of Cambodia are as follows: May it please
the Court to adjudge and declare, whether the Kingdom of Thailand appears or
not:
(1) that the Kingdom of Thailand is under an obligation to withdraw the
detachments of armed forces it has stationed since 1954 in the ruins of the
Temple of Preah Vihear;
(2) that the territorial sovereignty over the Temple of Preah Vihear belongs
to the Kingdom of Cambodia."
On behalf of the same Government, in the Memorial:
"The submissions of the Kingdom of Cambodia are as follows: May it please
the Court to find in favour of the submissions contained in its Application
instituting proceedings and, in particular, to adjudge and declare, whether
the Kingdom of Thailand appears or not :
(1) that the Kingdom of Thailand is under an obligation to withdraw the
detachments of armed forces it has stationed since 1954 in the ruins of the
Temple of Preah Vihear;
(2) that the territorial sovereignty over the Temple of Preah Vihear belongs
to the Kingdom of Cambodia."
On behalf of the Government of Thailand, in the Preliminary Objections:
"The Government of Thailand respectfully asks the Court to declare and
pronounce that it has no jurisdiction to entertain the Cambodian Application
of the 6th October, 1959, for the following reasons:
(A)
(i) that the Siamese declaration of the 20th September, 1929 lapsed on the
dissolution of the Permanent Court of International Justice on the 19th
April, 1946, and thereafter could not be renewed;
(ii) that the Thai declaration of the 20th May, 1950 purported to do no more
than renew the said declaration of the 20th September, 1929, and so was
ineffective ab initio;
(iii) that consequently Thailand has never accepted the compulsory
jurisdiction of the International Court of Justice under Article 36,
paragraph 2, of the Statute.
(B)
(i) that neither Thailand nor Cambodia has ever been a party to the General
Act for the Pacific Settlement of International Disputes of the 26th
September, 1928;
(ii) that consequently the said Act does not constitute an agreement of the
parties to submit the said dispute to the jurisdiction of the Court. [p 21]
(C)
(i) that Cambodia has not sought to found the jurisdiction of the Court upon
the Franco-Siamese Treaty of Friendship, Commerce and Navigation of the 7th
December, 1937;
(ii) that Cambodia is not a party to the said Treaty, nor has she succeeded
to any of the rights of France thereunder;
(iii) that consequently the said Treaty does not constitute an agreement of
the parties to submit the said dispute to the jurisdiction of the Court."
On behalf of the Government of Cambodia, in its Written Observations on the
Preliminary Objections:
"Having regard to Articles 36 and 37 of the Statute of the International
Court of Justice;
Having regard to Articles 21 and 22 of the Franco-Siamese Treaty of 7
December 1937, Article 2 of the Settlement Agreement of 17 November 1946 and
the General Act for the Pacific Settlement of International Disputes dated
26 September 1928;
The submissions of the Kingdom of Cambodia are as follows:
May it please the Court:
to dismiss the Preliminary Objections lodged by the Government of Thailand;
to adjudge and declare that it has jurisdiction to decide the dispute
brought before it on 6 October 1959 by the Application of the Government of
Cambodia."
On behalf of the Government of Thailand, Submissions read at the hearing on
11 April 1961:
"The Government of Thailand respectfully asks the Court to declare and
pronounce that it has no jurisdiction to entertain the Cambodian Application
of the 6th October, 1959, for the following reasons:
(A)
(i) that the Siamese declaration of the 20th September, 1929 lapsed on the
dissolution of the Permanent Court of International Justice on the 19th
April, 1946, and thereafter could not be renewed;
(ii) that the Thai declaration of the 20th May, 1950 purported to do no more
than renew the said declaration of the 20th September, 1929, and so was
ineffective ab initio;
(iii) that consequently Thailand has never accepted the compulsory
jurisdiction of the International Court of Justice under Article 36,
paragraph 2, of the Statute.
(B)
(i) that neither Thailand nor Cambodia has ever been a party to the General
Act for the Pacific Settlement of International Disputes of the 26th
September, 1928;[p 22]
(ii) that consequently the said Act does not constitute an agreement of the
parties to submit the said dispute to the jurisdiction of the Court.
(C)
(i) that Cambodia is not a party to the Franco-Siamese Treaty of Friendship,
Commerce and Navigation of the 7th December 1937, nor has she succeeded to
any of the rights of France thereunder;
(ii) that consequently the said Treaty does not constitute an agreement of
the parties to submit the said dispute to the jurisdiction of the Court;
(iii) that Cambodia is not a party to the Franco-Siamese Settlement
Agreement of the 17th November 1946, nor has she succeeded to any of the
rights of France thereunder;
(iv) that consequently the said Agreement does not constitute an agreement
of the parties to submit the said dispute to the jurisdiction of the Court."
At the end of the oral arguments, the Agent for'the Government of Cambodia,
by way of submission that the Court had jurisdiction, stated that the
arguments advanced on the principal and alternative issues on behalf of his
Government in the course of the hearings were maintained.
***
In the present case, Cambodia alleges a violation on the part of Thailand of
Cambodia's territorial sovereignty over the region of the Temple of Preah
Vihear and its precincts. Thailand replies by affirming that the area in
question lies on the Thai side of the common frontier between the two
countries, and is under the sovereignty of Thailand. This is a dispute about
territorial sovereignty; but as Thailand has raised certain objections to
the competence of the Court to hear and determine the substantive merits of
the dispute, the sole task of the Court in the present proceedings is to
consider and decide whether it has this competence or not.
In invoking the jurisdiction of the Court, Cambodia has based herself first,
and principally, on the combined effect of her own acceptance of the
compulsory jurisdiction of the Court, given by a Declaration made under
paragraphs 2-4 of Article 36 of the Court's Statute, and dated 9 September
1957, coupled with the Declaration made by Thailand on 20 May 1950, by
which, in Cambodia's view, Thailand equally accepted the compulsory
jurisdiction of the Court in such a manner as to cover the present dispute.
Secondly, Cambodia relies on the alleged effect of certain treaty provisions
entered into between France, said to be acting on [p 23] behalf of the
former territory of French Indo-China, of which Cambodia was then a
component part; and Siam, as Thailand was then called. Cambodia considers
that she is entitled to claim the benefit of certain of these provisions,
namely provisions for the judicial settlement of any disputes of the kind
involved in the present case, including provisions for recourse to the
International Court of Justice.
Thailand has taken exception to both these alleged bases of jurisdiction: as
regards the first, on the ground that her Declaration of May 1950, referred
to above, did not constitute a valid acceptance on her part of the
compulsory jurisdiction of the Court; and as regards the second, on the
ground, inter alia, that even if the treaty provisions in question would
effectively have conferred compulsory jurisdiction on the Court in a similar
dispute between Thailand and France, Cambodia as such cannot make an
independent claim to the benefit of these provisions in a dispute which
lies between Thailand and herself.
***
The Court will now address itself to the first preliminary objection of
Thailand, relating to the effect of her Declaration of 20 May 1950.
It is common ground between the Parties that if this Declaration did
constitute a valid acceptance by Thailand of the compulsory jurisdiction of
the Court, then Cambodia, because of her own Declaration of Acceptance of 9
September 1957, was entitled to require the submission of the present
dispute to the Court. It is solely the validity of Thailand's Declaration
that is in issue in the present proceedings.
***
It is to be noted, before proceeding to examine the facts, that as early as
20 September 1929 Thailand accepted the compulsory jurisdiction of the
Permanent Court in the following terms:
"On behalf of the Siamese Government, I recognize, subject to ratification,
in relation to any other Member or State which accepts the same obligation,
that is to say, on the condition of reciprocity, the jurisdiction of the
Court as compulsory ipso facto and without any special convention, in
conformity with Article 36, paragraph 2, of the Statute of the Court, for a
period of ten years, in all disputes as to which no other means of pacific
settlement is agreed upon between the Parties."
This Declaration was renewed for a further period by another Declaration,
dated 3 May 1940, due to expire on 6 May 1950. [p 24]
This was, in its turn, followed by yet another Declaration, dated 20 May
1950, and deposited on 13 June 1950, which is the one the effect of which
the Court is now called upon to consider.
***
Thailand's Declaration of 20 May 1950 was framed as follows:
"I have the honour to inform you that by a declaration dated September 20,
1929, His Majesty's Government had accepted the compulsory jurisdiction of
the Permanent Court of International Justice in conformity with Article 36,
paragraph 2, of the Statute for a period of ten years and on condition of
reciprocity. That declaration has been renewed on May 3, 1940, for another
period of ten years.
In accordance with the provisions of Article 36, paragraph 4, of the Statute
of the International Court of Justice, I have now the honour to inform you
that His Majesty's Government hereby renew the declaration above mentioned
for a further period of ten years as from May 3, 1950, with the limits and
subject to the same conditions and reservations as set forth in the first
declaration of Sept. 20, 1929."
On the face of it, this Declaration appears to be a straightforward renewal,
for another period of years, of a previous acceptance of the Court's
compulsory jurisdiction, in a manner commonly adopted by States when they
wish simply to prolong an existing obligation or renew a previous obligation
without having to set out again in detail the precise terms of it—as to
which, accordingly, they content themselves with a reference to previous
instruments containing those terms. The latter then become incorporated in
the new instrument as an integral part of it.
This is the construction which undoubtedly would normally be placed on such
an instrument as Thailand's Declaration of May 1950. Thailand points out,
however, that since she made her Declaration of 1950, there has intervened
the decision of the Court of 26 May 1959, in the case of the Aerial Incident
of July 27th, 1955 (Israel v. Bulgaria). Thailand contends that this
decision revealed that the assumptions on which the language of her 1950
Declaration was based were incorrect and that her Declaration, in the light
of that decision, was meaningless. Thailand in no way denies that by this
Declaration she fully intended to accept, and equally fully believed she was
accepting, the compulsory jurisdiction of the present Court. But, according
to her present argument, that intention, however definitely it may have
existed, and did exist, in the mind of Thailand, was never carried out as a
matter of objective fact, because Thailand, though all unwittingly, drafted
her Declaration of May 1950 in terms which subsequent events— [p 25] in
particular the Court's decision in the Israel v. Bulgaria case— revealed as
having been ineffectual to achieve Thailand's purpose.
***
In order to appreciate the precise implications of Thailand's first
preliminary objection, it is necessary at this point to refer to Article 36,
paragraph 5, of the Statute of the Court, 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 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 intention of this paragraph was to provide a means whereby, within
certain limits, existing declarations in acceptance of the compulsory
jurisdiction of the Permanent Court of International Justice would become
ipso jure transformed into acceptances of the compulsory jurisdiction of the
present Court as respects States parties to the Statute of the Court,
without such States having to make any new declarations specifically in
relation to the present Court. In the Israel v. Bulgaria case, however, the
Court, interpreting paragraph 5 of Article 36, came to the conclusion that
it did not apply indiscriminately to all States which, having accepted the
compulsory jurisdiction of the former Permanent Court, might at any
subsequent date become parties to the Statute of the Court, but only to such
of those States as were original parties. The Court furthermore came to the
conclusion that on 19 April 1946, date when the Permanent Court ceased to
exist, all declarations in acceptance of the compulsory jurisdiction of the
Permanent Court which had not already, by then, been "transformed" by the
operation of Article 36, paragraph 5, into acceptances of the compulsory
jurisdiction of the present Court, lapsed and ceased to be in force, since
they would, as from then, have related to a tribunal—the former Permanent
Court—which no longer existed. Consequently, so the Court found, all
declarations not having been thus transformed by 19 April 1946 ceased as
from that date to be susceptible of the process of transformation ipso jure
provided for by Article 36, paragraph 5.
It is not necessary for present purposes either to examine or to
recapitulate the reasoning on which these conclusions were based—reasoning
fully set out in the Court's decision in the Israel v. Bulgaria case.
Suffice it to say that, on the basis of this reasoning, the Court held that
Bulgaria not having, through its [p 26] admission to the United Nations,
become a party to the Statute until 14 December 1955, the Declaration which
she had made in 1920 accepting the compulsory jurisdiction of the former
Permanent Court, for an indeterminate period of years, must be regarded as
having lapsed on 19 April 1946, and as not having been transformed by the
operation of Article 36, paragraph 5, into an acceptance relative to the
present Court. Bulgaria having never at any time made a declaration
independently accepting the compulsory jurisdiction of the Court, it
followed, on this view, that she was not bound by that jurisdiction.
In the present case, Thailand's first preliminary objection proceeds on the
basis that her position is substantially the same as that of Bulgaria.
Thailand equally did not, through admission to the United Nations, become a
party to the Statute until after the demise of the former Permanent Court on
19 April 1946—namely not until 16 December 1946. However, the demise of the
Permanent Court some eight months earlier would, on the basis of the Court's
conclusion in the Israel v. Bulgaria case, have caused the lapse of
Thailand's Declaration of 3 May 1940 by which she had renewed for another 10
years her original acceptance, given in 1929, of the compulsory jurisdiction
of the Permanent Court. If this 1940 Declaration had thus lapsed, it
followed that Article 36, paragraph 5, which related only to declarations
"still in force", would have no application to Thailand's Declaration of
1940. Accordingly, this Declaration would not have been transformed into an
acceptance of the compulsory jurisdiction of the present Court by reason of
the fact that Thailand became a Member of the United Nations, and thus a
party to the Statute, on 16 December 1946. Consequently, according to the
view which Thailand puts forward, when Thailand made her Declaration of May
1950 purporting to renew for another 10 years her original Declaration of
1929, as itself renewed in 1940, all she actually would have achieved was a
neces-sarily abortive and inoperative renewal of a declaration which had
never had any effect except as an acceptance of the compulsory jurisdiction
of a tribunal that no longer existed.
The language of renewal of a previous declaration which Thailand employed in
her Declaration of 1950 was entirely natural on the assumption that
Thailand's previous declaration relative to the Permanent Court had, by the
operation of Article 36, paragraph 5, been transformed into an acceptance
relative to the present Court when Thailand was admitted as a Member of the
United Nations in December 1946. On that basis, she would, in 1950, simply
have been renewing a declaration which was itself—or rather had in 1946
become—an acceptance of the compulsory jurisdiction of the present Court.
But according to the argument Thailand has now put forward, the decision of
the Court in 1959 showed that this was [p 27] not in fact the legal
position: in 1950, all that existed, or rather remained, was an instrument
(the Declaration of 1940) accepting the compulsory jurisdiction of a defunct
tribunal. This was the instrument which Thailand "renewed" in 1950; but as
this instrument related to a nón-existent institution its "renewal" was
necessarily devoid of legal effect.
An essential part of the reasoning by which Thailand has supported her
contention is that the intentions she may have had in making her Declaration
of May 1950 became wholly irrelevant —or rather became insufficient in
themselves. However much those intentions are known—and indeed admitted by
Thailand herself— to have existed, they were not, Thailand contends, carried
out as a matter of objective fact. According to Thailand, her position would
be similar to that of a man who desires to make certain testamentary
dispositions, and fully intends them; nevertheless, he will not achieve his
object, as a matter of law, if he fails to observe the forms and
requirements prescribed by the applicable law for the making of testamentary
dispositions.
***
The first preliminary objection as advanced by Thailand is evidently based
wholly on the alleged effect on Thailand's 1950 Declaration of the
conclusion reached by the Court in its decision in the Israel v. Bulgaria
case as to the correct sphere of application of Article 36, paragraph 5, of
the Statute.
The Court does not share the view that this decision has the consequences
concerning the effect of Thailand's 1950 Declaration which Thailand now
claims.
The Court's decision in the Israel v. Bulgaria case was of course concerned
with the particular question of Bulgaria's position in relation to the Court
and was in any event, by reason of Article 59 of the Statute, only binding,
qua decision, as between the parties to that case. It cannot therefore, as
such, have had the effect of invalidating Thailand's 1950 Declaration.
Considered however as a statement of what the Court regarded as the correct
legal position, it appears that the sole question, relevant in the present
context, with which the Court was concerned in the Israel v. Bulgaria case
was the effect—or more accurately the scope-—of Article 36, paragraph 5. Now
that provision, as has been explained above, itself related solely to the
cases in which declarations accepting the compulsory jurisdiction of the
former Permanent Court would be deemed to be transformed into acceptances of
the compulsory jurisdiction of the present Court, without any new or
specific act on the part of the declarant State other than the act of having
become a party to the Statute. It was consequently this process [p 28] of
transformation ipso jure, and the limits to which it was subject, that the
Court was concerned with in the Israel v. Bulgaria case. The Court was not
concerned with the question whether it might be possible to effect a similar
transformation by other means falling outside Article 36, paragraph 5. Thus,
when the Court found that in the case of States becoming parties to the
Statute after the demise of the Permanent Court, no transformation under
that particular provision could take place, it did not mean thereby to imply
that no transformation could take place at all.
As regards Bulgaria, her Declaration of 1921 had, according to the Court's
view, lapsed in 1946, and had not been transformed; and Bulgaria had neither
made any independent request that her 1921 Declaration should be considered
as relating to the present Court, nor taken any other step which could be
regarded as constituting an acceptance of the Court's compulsory
jurisdiction. In these circumstances, the Court could only conclude that
Bulgaria was not obliged to submit to the jurisdicton of the Court.
From the above, it would follow that if Thailand's 1940 Declaration was not
thus transformed ipso jure in the light of the Court's decision, by the
operation of Article 36, paragraph 5, there would still remain the question
whether that Declaration was so transformed in some other manner or
whether, irrespective of any transformation of her 1940 Declaration as
such, Thailand could be held to have independently accepted the compulsory
jurisdiction of the Court. It is clear that the fact that Thailand, by a new
and voluntary act, made her Declaration of May 1950, placed her in a
different position from Bulgaria which had never taken any new step at all
subsequent to her admission to the United Nations.
***
Such is the question—a question in no way governed by the position in
relation to Article 36, paragraph 5—to which the Court must now address
itself; but before doing so, it is necessary to determine exactly what the
situation was that had been reached by 20 May 1950, the date of Thailand's
Declaration.
Thailand did not, either on joining the United Nations, or at any time
before 6 May 1950, when Thailand's 1940 Declaration was in any case due to
expire according to its own terms, address any communication to the
Secretary-General regarding her 1940 Declaration. Consequently, the position
in May 1950 was that Thailand's 1940 Declaration had, on the basis of the
Court's 1959 decision, never been transformed into an acceptance of the
compulsory jurisdiction of the present Court by the operation of Article
36, paragraph 5; and equally had not up to that date (6 May 1950) been
transformed by Thailand's own independent act. Furthermore, by 20 May 1950,
the 1940 Declaration never [p 29] could thenceforth, as such, be so
transformed, because, according to its own terms, it had expired two weeks
earlier, on 6 May.
Thailand had thus either never been bound since 1946, or had, on any view,
ceased to be bound as from 6 May 1950. Thailand was therefore at this point
(20 May 1950) entirely unfettered and not bound by the compulsory
jurisdiction of this Court. She was completely free at that point either to
accept or else not to accept that jurisdiction for the future. In this
situation, she pro-ceeded to do what Bulgaria never did, namely to address
to the Secretary-General of the United Nations a communication embodying
her Declaration of 20 May. By this she at least purported to accept, and
clearly intended to accept, the compulsory jurisdiction of the present
Court. The question is—and it is really the sole pertinent question in this
case—did she effectually carry out her purpose ?
This Declaration of May 1950 was a new and independent instrument and has
to be dealt with as such. It was not, and could not have been, made under
paragraph 5 of Article 36 of the Statute. In the first place, this paragraph
contained no provision for the making of specific declarations by States:
where it operated, it operated ipso jure without any such specific
declaration—that indeed was its whole point. In the second place, paragraph
5 was so worded as only to preserve the declarations concerned for the
duration of the unexpired portion of the terms for which they still had to
run; and Thailand's previous Declaration of 1940, whether or not kept alive
by Article 36, paragraph 5, was in any case due to expire on 6 May 1950, by
its own terms. The operation of Article 36, paragraph 5, was therefore, on
any view, wholly exhausted by that date so far as Thailand was concerned. It
follows that Thailand's Declaration of 20 May 1950 was not a declaration
which Thailand either did make, or ever could have made, under Article 36,
paragraph 5, even if she had wanted to; and from this it follows that the
1950 Declaration must have been one which Thailand was making under
paragraphs 2-4 of that Article, and in at least purported or attempted
acceptance, of the compulsory jurisdiction of the present Court, which is
the only tribunal contemplated by those paragraphs.
In answering the question whether this acceptance was an effectual one, it
must be borne in mind that although, for the reasons given above, the view
taken in the Court's decision in the Israel v. Bulgaria case as to the scope
of Article 36, paragraph 5, of the Statute does not, on any a priori basis,
exclude the validity of Thailand's 1950 Declaration, this decision has
nevertheless to be taken into account in determining what the effect of that
Declaration was; for the decision is invoked by Thailand to argue that her
previous (1940) Declaration, which the 1950 Declaration renewed, was an
"untransformed" one, because the 1940 Declaration [p 30] had become lacking
in an object: it was therefore incapable of renewal or else related to the
compulsory jurisdiction of the old and defunct Court, not of the existing
Court.
The Court is unable to share this view of the effect of Thailand's 1950
Declaration. But before stating why, it is desirable to dispose of certain
other points raised in the course of the proceedings.
***
In the first place, there was a good deal of discussion as to whether a
lapsed instrument can be renewed, or rather revived; and distinctions were
drawn between, on the one hand, the pro-longation of an instrument in force,
and, on the other hand, the renewal or revival of lapsed or spent
instruments.
The Court considers that much of this discussion had little relevance to the
particular circumstances of this case. The real question in the present case
is a different one. It is not: could Thailand by her 1950 Declaration renew
or revive her 1929 and 1940 Declarations despite the fact that these had
lapsed and were no longer in force; the question is, what was the effect of
her Declaration of 1950: did she thereby merely revive obligations that
could no longer operate because they related to a no longer existent object,
or were they revived in such a way as to relate to the present Court? This
is the question that the present Judgment is directed to determining.
Next, there was also discussion as to the question of error and its possible
effects. Thailand's position, it might be said, is that in 1950 she had a
mistaken view of the status of her 1940 Declaration, and for that reason
she used in her Declaration of 1950 language which the decision of the Court
in the Israel v. Bulgaria case showed to be inadequate to achieve the
purpose for which that Declaration was made. Any error of this kind would
evidently have been an error of law, but in any event the Court does not
consider that the issue in the present case is really one of error.
Furthermore, the principal juridical relevance of error, where it exists, is
that it may affect the reality of the consent supposed to have been given.
The Court cannot however see in the present case any factor which could, as
it were ex post and retroactively, impair the reality of the consent
Thailand admits and affirms she fully intended to give in 1950. There was in
any case a real consent in 1950, whether or not it was embodied in a legally
effective instrument—and it could not have been consent to the compulsory
jurisdiction of the Permanent Court, which Thailand well knew no longer
existed. [p 31]
The real case for Thailand lies in the contention that her 1950 Declaration
was vitiated despite her clear intentions, because, as she maintains, this
Declaration was expressed in terms which rendered it legally ineffective for
want of an object. Evidently no defect could be more fundamental than to
renew a declaration lacking in an object. But to reach an immediate
conclusion on that basis would be gratuitous, for in the light of the
reasoning that has been set out above, the effect of the 1950 Declaration
can only be established by an independent examination of that Declaration,
considered as a whole and in the light of its known purpose.
Before undertaking this examination, which really constitutes the crux of
the matter, the Court wishes to refer to the argument presented on behalf of
Thailand that, in legal transactions, just as the deed without the intent is
not enough, so equally the will without the deed does not suffice to
constitute a valid legal transaction. It should be noted here that there was
certainly no will on Thailand's part in 1950 to accept the compulsory
jurisdiction of the former Permanent Court. This does not of course by
itself mean that the 1950 Declaration constituted an acceptance in relation
to the present Court. Nevertheless the sheer impossibility that, in 1950,
any acceptance could either have been intended, or could in fact have
operated, as an acceptance relative to the Permanent Court is a factor to be
borne in mind in considering the effect of the 1950 Declaration.
As regards the question of forms and formalities, as distinct from
intentions, the Court considers that, to cite examples drawn from the field
of private law, there are cases where, for the pro-tection of the interested
parties, or for reasons of public policy, or on other grounds, the law
prescribes as mandatory certain formalities which, hence, become essential
for the validity of certain transactions, such as for instance testamentary
dispositions; and another example, amongst many possible ones, would be that
of a marriage ceremony. But the position in the cases just mentioned
(wills, marriage, etc.) arises because of the existence in those cases of
mandatory requirements of law as to forms and formalities. Where, on the
other hand, as is generally the case in international law, which places the
principal emphasis on the intentions of the parties, the law prescribes no
particular form, parties are free to choose what form they please provided
their intention clearly results from it.
It is this last position which obtains in the case of acceptances of the
compulsory jurisdiction of the Court. The only formality required is the
deposit of the acceptance with the Secretary-General of the United Nations
under paragraph 4 of Article 36 of the Statute. This formality was
accomplished by Thailand. For the rest—as regards form—paragraph 2 of
Article 36 merely provides that States parties to the Statute "may at any
time declare [p 32] that they recognize as compulsory ... the jurisdiction
of the Court", etc. The precise form and language in which they do this is
left to them, and there is no suggestion that any particular form is
required, or that any declarations not in such form will be invalid. No
doubt custom and tradition have brought it about that a certain pattern of
terminology is normally, as a matter of fact and convenience, employed by
countries accepting the compulsory jurisdiction of the Court; but there is
nothing mandatory about the employment of this language. Nor is there any
obligation, notwithstanding paragraphs 2 and 3 of Article 36, to mention
such matters as periods of duration, conditions or reservations, and there
are acceptances which have in one or more, or even in all, of these respects
maintained silence.
Such being, according to the view taken by the Court, the position in
respect of the form of declarations accepting its compulsory jurisdiction,
the sole relevant question is whether the language employed in any given
declaration does reveal a clear intention, in the terms of paragraph 2 of
Article 36 of the Statute, to "recognize as compulsory ipso facto and
without special agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the Court in all legal disputes" concerning
the categories of questions enumerated in that paragraph.
***
In the light of all the foregoing considerations, the Court considers that
it must interpret Thailand's 1950 Declaration on its own merits, and without
any preconceptions of an a priori kind, in order to determine what is its
real meaning and effect if that Declaration is read as a whole and in the
light of its known purpose, which has never been in doubt.
In so doing, the Court must apply its normal canons of interpretation, the
first of which, according to the established jurisprudence of the Court, is
that words are to be interpreted according to their natural and ordinary
meaning in the context in which they occur. If the 1950 Declaration is
considered in this way, it can have no other sense or meaning than as an
acceptance of the compulsory jurisdiction of the present Court, for there
was no other Court to which it can have related. Thailand's 1950
Declaration, by the mere fact of being embodied in a communication
addressed to the Secretary-General of the United Nations, affords clear
evidence of acceptance relative to the present Court, since this was the
only Court in relation to which a communication so addressed could have had
any significance.
Moreover, the Court has held in the Anglo-Iranian Oil Co. case (I.C.J.
Reports 1952, p. 104) that the principle of the ordinary meaning does not
entail that words and phrases are always to be interpreted in a purely
literal way; and the Permanent Court, in the [p 33] case of the Polish
Postal Service in Danzig (P.C.I. J., Series B, No. n, p. 39), held that this
principle did not apply where it would lead to "something unreasonable or
absurd". The case of a contradiction would clearly come under that head.
Now, if, on a literal reading, part of Thailand's 1950 Declaration had, ex
post and because of the decision of the Court in the Israel v. Bulgaria
case, to be considered as a purported acceptance of the jurisdiction of a
defunct Court, this would be in clear contradiction to the reference in
another part of the Declaration to Article 36, paragraph 4, of the Statute
(and via that paragraph to paragraphs 2 and 3), which clearly evidenced
acceptance of the jurisdiction of the present Court, and in contradiction
also with the fact that a commu-nication under paragraph 4 could only relate
to the present Court.
This reference to Article 36, paragraph 4, was not merely procedural, as
has been contended on behalf of Thailand. It was of course procedural in so
far as it was in obedience to the requirement that such a declaration should
be addressed to the Secretary-General of the United Nations. But the
Secretary-General was to be addressed because, as the language of paragraph
4 ("Such declarations") indicates, the declarations referred to in paragraph
4 are the same declarations as are specified in paragraphs 2 and 3, namely
declarations accepting the compulsory jurisdiction of the present Court,
which is the principal judicial organ of the United Nations. Thailand, which
was fully aware of the non-existence of the former Permanent Court, could
have had no other purpose in addressing the Secretary-General under
paragraph 4 than to recognize the compulsory jurisdiction of the present
Court under paragraph 2—nor does she pretend otherwise.
On 20 May 1950, Thailand knew that her Declaration of 1940 had expired in
accordance with its terms and that in so far as this was material, Article
36, paragraph 5, had, on any interpretation, exhausted itself. Thailand
knew she was free of any obligation to submit to the Court's jurisdiction
except by virtue of a new and independent, voluntary, act of submission on
her part. The only way in which she could, at that stage, take action under
Article 36 was pursuant to paragraph 2 thereof; and the declaration which
she then made was pursuant to that paragraph, as is clearly shown by the
terms of the Declaration itself in its reference to Article 36, paragraph 4,
and via that to paragraph 2.
If, however, there should appear to be a contradiction between, on the one
hand, this reference to paragraph 4 of Article 36, and via that to paragraph
2, indicating acceptance of the compulsory jurisdiction of the present
Court; and, on the other hand, the references to the "untransformed"
Declarations of 1929 and [p 34] 1940, from which an apparent acceptance of
the jurisdiction of the former Permanent Court might be inferred—that is to
say a nullity—then, according to a long-established jurisprudence, the Court
becomes entitled to go outside the terms of the Declaration in order to
resolve this contradiction and, inter alia, can have regard to other
relevant circumstances; and when these circumstances are considered, there
cannot remain any doubt as to what meaning and effect should be attributed
to Thailand's Declaration. In this connection, it is scarcely necessary to
do more than refer to the history of Thailand's consistent attitude to the
compulsory jurisdiction, first of the Permanent Court, and later of the
present Court, as set out in an earlier paragraph of this Judgment. To
ignore this would indeed be to honour the letter rather than the spirit; but
the Court considers that, for the reasons which have been indicated, even
the letter does not bear out the view Thailand seeks to maintain concerning
the effect of her 1950 Declaration.
***
To sum up, when a country has evinced as clearly as Thailand did in 1950,
and indeed by its consistent attitude over many years, an intention to
submit itself to the compulsory jurisdiction of what constituted at the time
the principal international tribunal, the Court could not accept the plea
that this intention had been defeated and nullified by some defect not
involving any flaw in the consent given, unless it could be shown that this
defect was so fundamental that it vitiated the instrument by failing to
conform to some mandatory legal requirement. The Court does not consider
that this was the case and it is the duty of the Court not to allow the
clear purpose of a party to be defeated by reason of possible defects which,
in the general context, in no way af-fected the substance of the matter, and
did not cause the instrument to run counter to any mandatory requirement of
law.
The Court therefore considers that the reference in the Declaration of 1950
to paragraph 4 of Article 36 of the Statute gave the Declaration, for
reasons already given, the character of an acceptance under paragraph 2 of
that Article. Such an acceptance could only have been an acceptance in
relation to the present Court. The remainder of the Declaration must be
construed in the light of that cardinal fact, and in the general context of
the Declaration; and the reference to the 1929 and 1940 Declarations must,
as was clearly intended, be regarded simply as being a convenient method of
indicating, without stating them in terms, what were the conditions upon
which the acceptance was made. [p 35]
***
Since the above conclusion is sufficient in itself to found the Court's
jurisdiction, and the issue of jurisdiction is the only one which the Court
has to determine at this stage of the case, it becomes unnecessary to
proceed to a consideration of the second basis of jurisdiction invoked by
Cambodia, and Thailand's objection to that basis of jurisdiction.
For these reasons,
The Court,
unanimously,
rejects the first preliminary objection of Thailand, and finds that it has
jurisdiction to adjudicate upon the dispute submitted to it on 6 October
1959 by the Application of Cambodia.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-sixth day of May, one thousand nine
hundred and sixty-one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Kingdom of Cambodia and to the Government of the Kingdom of Thailand,
respectively.
(Signed) B. Winiarsky,
President.
(Signed) Garnier-Coignet,
Registrar.
Vice-President Alfaro makes the following Declaration:
The fact that in the present case Thailand has based her first preliminary
objection to the jurisdiction of the Court on the conclusions of the
Judgment rendered in the case of the Aerial Incident of July 27th, 1955
(Israel v. Bulgaria) establishes a close connection between that case and
the present case, and it may be open to doubt whether concurrence in the
present Judgment implies agreement with the conclusions of the Court in the
above-mentioned case. For this reason I consider it necessary to declare
that much to my regret I find myself unable to agree with those conclusions,
but even on the assumption that I agreed with them, [p 36] it is my opinion
that the conclusions of the Court in the Israel v. Bulgaria case concerning
the scope and effect of paragraph 5 of Article 36 of the Statute are not
applicable to the case now decided, for the abundant reasons stated in the
present Judgment.
Judge Wellington Koo makes the following Declaration:
Since some of the grounds given in the Judgment relate to the decision of
the Court in the case of the Aerial Incident-of July 27th, 1955 (Israel v.
Bulgaria), Preliminary Objections, I desire to say that while I concur in
the conclusion of the Court in the present case and generally in the
reasoning which leads to it, I do not mean thereby to imply that I now
concur or acquiesce in that decision but that, on the contrary, I continue
to hold the views and the conclusion stated in the Joint Dissenting Opinion
appended to that decision.
Indeed, I consider that on the basis of that Opinion Thailand's 1940
Declaration accepting the compulsory jurisdiction of the Permanent Court
must be deemed to have been transformed, as had also admittedly been
intended by Thailand, when she became a Member of the United Nations and
therefore a party to the Statute on 16 December 1946, by operation of
Article 36, paragraph 5, of the Statute, into an acceptance in relation to
the present Court; and this fact constitutes an additional and simpler
reason to meet Thailand's principal argument in support of her first
objection.
This is clear, although it is equally true that since the circumstances of
the two cases are essentially different, neither the fact, based on the said
Opinion, that the said 1940 Declaration had been so transformed prior to its
own terminal date, 6 May 1950, nor the fact, based upon the said 1959
decision of the Court, that it had lapsed on 19 April 1946 when the
Permanent Court was dissolved, bears any determining legal effect on the
only crucial question at issue in the present case, namely, the validity of
Thailand's Declaration of 20 May 1950.
Judge Sir Gerald Fitzmaurice and Judge Tanaka make the following Joint
Declaration:
Although we are in complete agreement with the substantive conclusion of the
Court in this case and with the reasoning on which it is based, we have an
additional and, for us, a more immediate reason for rejecting the first
preliminary objection of Thailand.
This preliminary objection is based on the conclusion concerning the effect
of paragraph 5 of Article 36 of the Statute which the [p 37] Court reached
in its decision of 26 May 1959, given in the case of the Aerial Incident of
July 27th, 1955 (Israel v. Bulgaria). The objection necessarily assumes the
correctness of that conclusion; for it is only on that basis that it is
possible to claim, as Thailand has sought to do, that what she purported to
renew, or rather revive, by her Declaration of 20 May 1950, was an
acceptance, not of the compulsory jurisdiction of the present Court, but of
that of the former Permanent Court, and therefore, in view of the
nonexistence of that Court in 1950, devoid of any object, and incapable,
as such, of renewal or revival. But it is also clear that except on the
basis of that conclusion, the objection would, to use a serviceable
colloquialism, have been "a complete non-starter", and could never have been
formulated at all.
Since, therefore, the objection necessarily presupposes the correctness of
the conclusion reached in the Israel v. Bulgaria case, the view that this
conclusion was in fact incorrect would, for anyone holding that view,
furnish a further reason for rejecting the objection, and a much more
immediate one than any of those contained in the present Judgment.
This is precisely our position since, to our regret, we are unable to agree
with the conclusion which the Court reached in the Israel v. Bulgaria case
as to the effect of Article 36, paragraph 5, of the Statute. We need not
give our reasons for this, for they are substantially the same as those set
out in the Joint Dissenting Opinion of Judges Sir Hersch Lauterpacht and Sir
Percy Spender, and of Judge Wellington Koo. Furthermore, it is not our
purpose to call in question or attempt to reopen the decision in that case.
However, as we do not agree with it, the correct position, for us, in regard
to the effect of Article 36, paragraph 5, as it related to Thailand's
previous Declaration of May 1940, is that on the demise of the Permanent
Court in April 1946, this Declaration which, according to its own terms,
still had about four years to run, became dormant (but not extinct) and
then, on Thailand becoming a Member of the United Nations in December 1946,
was reactivated by the operation of Article 36, paragraph 5, as an
acceptance of the compulsory jurisdiction of the present Court.
For us, therefore, Thailand's 1950 Declaration was, as it was intended to
be, a perfectly straightforward and normal renewal of a Declaration (that of
1940) which had already been "transformed" into—and had acquired the status
of—an acceptance in relation to the present Court, and which had wholly
ceased to relate to the former Permanent Court, not merely because of the
demise of that Court, but precisely because the Declaration had (by virtue
of Article 36, paragraph 5) been transformed into an acceptance of the
compulsory jurisdiction of the present Court. On that basis, [p 38] the
status and validity of the Declaration of May 1950 could not be open to
question, and this we believe is the true position.
We have thought it necessary to make our attitude clear in this respect; for
otherwise, concurrence in the present Judgment of the Court might be thought
to imply agreement with the decision of 26 May 1959. Furthermore, anyone who
disagrees with that decision must necessarily reject Thailand's first
preliminary objection a fortiori on that ground alone. This however in no
way affects our view that the first preliminary objection of Thailand must
in any case be rejected, for the reasons given in the present Judgment.
As regards the second preliminary objection of Thailand—whilst we are fully
in agreement with the view expressed by Sir Hersch Lauterpacht in the South
West Africa—Voting Procedure case (I.C.J. Reports 1955, at pp. 90-93) to the
effect that the Court ought not to refrain from pronouncing on issues that a
party has argued as central to its case, merely on the ground that these are
not essential to the substantive decision of the Court—yet we feel that this
view is scarcely applicable to issues of jurisdiction (nor did Sir Hersch
imply otherwise). In the present case, Thailand's second preliminary
objection was of course fully argued by the Parties. But once the Court, by
rejecting the first preliminary objection, has found that it has
jurisdiction to go into the merits of the dispute (this being the sole
relevant issue at this stage of the case), the matter is, strictly,
concluded, and a finding, whether for or against Thailand, on her second
preliminary objection, could add nothing material to the conclusion, already
arrived at, that the Court is competent. We therefore agree that the Court
is not called upon in the circumstances to pronounce on the second
preliminary objection.
Judge Sir Percy Spender appends to the Judgment of the Court a statement of
his Separate Opinion.
Judge Morelli appends to the Judgment of the Court a statement of his
Separate Opinion.
(Initialled) B. W.
(Initialled) G.-C.
[p 39]
SEPARATE OPINION OF SIR PERCY SPENDER
I agree with the conclusion of the Court.
Since I do not find it necessary, having regard to the approach I make to
the first preliminary objection, to consider a number of matters to which
the Judgment of the Court directs its attention, I desire to state briefly
the reasons why I think this objection is unfounded.
***
The question raised by the first preliminary objection is whether Thailand's
letter of 20 May 1950, deposited with the Secretary-General of the United
Nations under the provisions of Article 36 (4) of the Statute of this Court,
is in form and substance a declaration recognizing the compulsory
jurisdiction of this Court within the meaning of Article 36 (2) of that
Statute.
Thailand states that this letter was drawn up by it in the belief that its
declaration of 3 May 1940 made under the provisions of Article 36 of the
Statute of the Permanent Court and which renewed a previous declaration made
by it on 20 September 1929 under the same provisions, had, on its becoming a
party to the Statute of this Court, been transformed by virtue of Article 36
(5) of that Statute into an acceptance of the compulsory jurisdiction of
this Court, for the period of time for which, in accordance with its terms,
that declaration of 1940 still had to run.
However, the decision of this Court in Israel v. Bulgaria (I.C.J. Reports
1959) established, it asserts, that this belief was unfounded; that,
contrary to its belief, the declarations made by it to the Permanent Court
lapsed on the dissolution of that Court and thereafter could not be renewed.
Since, so it contended, its letter purported to do no more than renew a
declaration made by it to the Permanent Court, that letter was ineffective
ab initio and consequently Thailand never accepted the compulsory
jurisdiction of this Court under Article 36 (2) of its Statute.
***
I do not think there can be any doubt that Thailand's belief as at 20 May
1950 was as stated by it. It accorded with the view commonly held at that
time as to the meaning and effect of Article 36 (5). The [p 40] terms of its
letter of that date are not reasonably consistent with any other conclusion.
Had it believed that it had at no time theretofore been subject to the
compulsory jurisdiction of this Court, it is wholly unlikely that its letter
would have been drafted in the language in which it was.
***
On 20 May 1950 Thailand knew that the period of time for which its
declaration of 1940 was to run had expired. It knew that the only way in
which it could thereafter become subject to the compulsory jurisdiction of
this Court was by a free and unfettered decision on its part to accept this
Court's jurisdiction under Article 36. This could only be done by virtue of
paragraph (2) thereof. That it fully understood that this was so is
abundantly established by the opening words of the second paragraph of its
letter.
The letter was accordingly one which purported to be made under the
provisions of Article 36 (2) of this Court's Statute. Its objective Thailand
freely concedes was to submit itself to the compulsory jurisdiction of this
Court.
Did the objective fail to be achieved for any reason of form or substance?
***
No requirements of form are called for by paragraph (2) of Article 36. If
consent to recognize this Court's jurisdiction in terms of that paragraph is
clearly manifested, it matters not in what form the declaration containing
that consent is cast.
Did then Thailand by its letter of 20 May 1950 clearly manifest its consent
to recognize this Court's jurisdiction?
The answer to the question is to be found in an examination and
interpretation of the language employed by it in its letter.
The task of the Court is to ascertain Thailand's intention. In order to do
this the language employed should, in the first place, be read in its
natural and ordinary meaning to see if it makes sense. The terms in which
Thailand expressed itself should be read in the general sense in which they
would have been understood at the time its letter was written. The letter
should be interpreted however so as to harmonize with, not to thwart, the
purpose Thailand had at that time.
***
By the terms of its letter of 20 May 1950 Thailand purported to "renew" a
certain declaration. That declaration is described as [p 41] "the
declaration above mentioned". It purports to renew that declaration with the
limits and subject to the same conditions and reservations "as set forth in
the first declaration" of Sept. 20, 1929.
Used side by side one with the other, the phrases "the declaration above
mentioned" and "the first declaration of September 20, 1920" (sic) refer
evidently not to the same but to different declarations. The declaration
"above mentioned" which was being renewed was apparently that of 1940, not
that of 1929.
However, whichever way they are looked at, the words "the declaration above
mentioned" refer to a declaration which although made to the Permanent Court
was, in 1950, commonly believed to have been transformed, upon Thailand
becoming a party to the Statute of this Court, into an acceptance of the
compulsory jurisdiction of this Court by virtue of the operation of Article
36 (5) of its Statute.
At the time when it was made there could have been no doubt what Thailand
intended to do by its declaration of 1950 and what its language was meant to
convey. The declaration would have been understood to mean that Thailand,
previously subject to the jurisdiction of this Court by virtue of its
declaration of 1940 and the operation of Article 36 (5) of this Court's
Statute, was recognizing that jurisdiction afresh under the provisions of
Article 36 (2) of that Statute, for another ten-year period, further to that
mentioned in its 1940 declaration. It would have been apparent to those who
read it in a natural and reasonable way that it was just a commonplace and
straightforward renewal of a previous obligation to the same Court, an
obligation which had just expired.
This is precisely how Thailand intended its declaration of 1950 should be
understood. So understood the word "renew", of which so much has during this
case been said, is both apt and normal and, in the context in which it was
used, admits of no difficulty.
It is evident, and it is not without its significance, that when the 1950
declaration was drafted, Thailand had before it a letter of 11 November 1949
directed to it by the Registrar of this Court which was in the following
terms:
"In the interests of the administration of the Court I have the honour to
invite your ... attention to the fact that, on 3 May 1940, by a Declaration
made pursuant to Article 36 of the Statute of the Permanent Court of
International Justice and considered as being still in force (Article 36,
paragraph 5, of the Statute of the present Court), the Government of
Thailand recognized as compulsory the jurisdiction of the Court in the
circumstances provided for in Article 36 quoted above.
This acceptance, which was valid for a period of ten years, will expire on 2
May 1950."
[p 42]
***
Adhering as I do to the views expressed in the Joint Dissenting Opinion of
my late colleague Sir Hersch Lauterpacht, Judge Wellington Koo and myself
in Israel v.Bulgaria (I.C.J. Reports 1955), I do not find it necessary to
address myself to the position which would exist if, contrary to its belief,
Thailand's declaration of 1940 had, in accordance with the reasoning of the
Court in that case, lapsed on the dissolution of the Permanent Court and
thereafter was devoid of object. I am of the opinion, for reasons which
appear in the Joint Dissenting Opinion, that, on becoming a party to the
Statute of the Court as a consequence of its admission to membership of the
United Nations in December 1946, Thailand, as it believed was so, did become
subject to the compulsory jurisdiction of this Court by virtue of Article 36
(5) of this Court's Statute and so remained until the expiry of the period
of time its 1940 declaration still had to run.
The letter of 20 May 1950 in my judgment gave effect to the intention of
Thailand and was a valid declaration under Article 36 (2) of this Court's
Statute.
(Signed) Percy C. Spender.
[p 43]
SEPARATE OPINION OF JUDGE MORELLI
[Translation]
I consider that it would have been preferable to concentrate the grounds for
the Judgment on the essential point in the contention of Thailand as
presented in the Preliminary Objections.
I. That contention was that the declaration of 20 May 1950, purporting to
renew for a further period of ten years the declaration of 20 September
1929, "was wholly ineffective, because the declaration of 20 September 1929
lapsed on the dissolution of the Permanent Court on 19 April 1946 and
thereafter was incapable of renewal". In consequence Cambodia was not
entitled to invoke against Thailand "the jurisdiction of the Court under
Article 36, paragraph 2, of the Statute" (Preliminary Objections, paragraph
5). The reference was, of course, to the jurisdiction of the International
Court and to Article 36, paragraph 2, of the Statute of this Court. Indeed,
paragraph 12 of the Preliminary Objections says: "It is only by her
declaration of 20 May 1950 that Thailand can be alleged to have accepted the
compulsory jurisdiction of the International Court subsequently."
According to Thailand (Preliminary Objections, paragraph 13), the document
of 20 May 1950 did not contain an original declaration. All that Thailand
professed to do by that document was to "renew" the declaration of 20
September 1929. The document was so worded as to preserve an existing
obligation. It could not restore life to an undertaking which had expired
years before. The declaration of 20 September 1929, having lapsed on 19
April 1946, could be neither renewed nor preserved. Hence, according to
Thailand, the document of 20 May 1950 was devoid of legal effect.
Thailand (Preliminary Objections, paragraph 14) denies that the document of
20 May 1950 can be regarded as a new and original declaration, because it is
one thing to renew a supposedly existing declaration, but quite another to
make a new declaration.
In paragraph 15 of the Preliminary Objections it is pointed out that, since
Thailand had never been under an obligation to recognize the compulsory
jurisdiction of the International Court, to recognize that jurisdiction
would have been for Thailand to accept a new obligation:
"The document of 20 May 1950 cannot, in the submission of the Government of
Thailand, be interpreted as an acceptance of a new obligation, as opposed to
an attempted renewal of an obligation believed already to exist." [p 44]
Here again it is a question of a renewal of submission to the jurisdiction
of the International Court.
In this way Thailand posed the problem of the validity of the declaration of
20 May 1950 as a declaration made on the basis of Article 36, paragraph 2,
of the Statute of the International Court and purporting directly to accept
the jurisdiction of that Court.
2. The contention advanced in the oral proceedings was quite different.
According to that contention, which was developed more particularly at the
hearing of 14 April, Thailand, by her declaration of 20 May 1950, purported
to maintain in force the obligation contained in her declarations of 1929
and 1940, that is, an obligation to submit to the jurisdiction of the
Permanent Court; this was in order to achieve, in application of Article 36,
paragraph 5, of the Statute of the present Court, her subsequent purpose of
submission to the jurisdiction of this Court.
As will be seen, the difference between this contention and the original
contention lies in the completely different presentation given to the
intention which Thailand is said to have expressed in her declaration of 20
May 1950.
3. The latter contention of Thailand is ictu oculi unfounded for the
following reasons:
(a) In conformity with the interpretation given it by Thailand itself in the
Preliminary Objections, the declaration of 1950 is quite clearly a
declaration made on the basis of Article 36 of the present Statute, to which
Article the declaration expressly referred. Express reference, it is true,
is made only to paragraph 4. That reference however is sufficient to prove
that the declaration is made on the basis of the present paragraph 2, with
which paragraph 4 is closely linked. It is inconceivable that Thailand,
while expressly referring to the present paragraph 4, should have intended
to make a declaration based upon paragraph 2 of Article 36 of the Statute
of the Permanent Court.
(b) We cannot ascribe to Thailand the absurd idea of making a declaration in
1950 on the basis of a text (the Statute of the Permanent Court) which was
no longer in force, a declaration purporting to accept the jurisdiction of a
Court which had ceased to exist—and all this in order indirectly to achieve
a purpose (submission to the jurisdiction of the present Court) which could
be directly achieved by a declaration based upon the Statute now in force.
(c) The aim pursued by Thailand could not possibly be achieved by the
indirect method suggested by Counsel for Thailand in [p 45] his address to
the Court. Paragraph 5 of the present Article 36 has reference to
declarations made earlier, as is shown by the phrase "which are still in
force". That paragraph does not contemplate the somewhat fanciful case of a
declaration made after the entry into force of the present Statute and after
dissolution of the Permanent Court, for the purpose of accepting the
latter's jurisdiction.
4. I shall now examine the original Thai argument set forth in the
Preliminary Objections concerning the validity of the 1950 declaration as a
declaration made on the basis of Article 36, paragraph 2, of the present
Statute.
If the argument of Thailand were a sound one, the declaration of 1950 would
have to be considered as an act invalid because devoid of object. In my
opinion, such invalidity could reside only in a genuine nullity, a nullity
absolute and ipso jure. In any case, this is quite clearly not a question of
form although the Parties introduced such a notion in the course of the
oral proceedings.
According to Thailand, the inability of the declaration of 20 May 1950 to
renew the declaration of 20 September 1929 follows from the fact that the
latter declaration, which embodied acceptance of the compulsory jurisdiction
of the Permanent Court and which lapsed upon the dissolution of that Court
on 19 April 1946, had not been converted into an acceptance of the
compulsory jurisdiction of the International Court through the effect of
paragraph 5 of Article 36 of the present Statute (Preliminary Objections,
paragraph 12). This last assertion rests upon the Judgment of the Court in
the Israel v. Bulgaria case.
5. Whilst expressly reserving my opinion concerning the interpretation of
Article 36, paragraph 5, I would first observe that, if we accept the
interpretation given by the Court, we are bound to deny that that clause was
operative in respect of the Thai declaration. For that reason I consider
the position of Thailand to be perfectly analogous to that of Bulgaria so
far as concerns the particular question of whether Article 36, paragraph 5,
was or was not operative.
In this context Cambodia, in paragraph 12 of her Observations and in the
oral proceedings, advanced certain differences of fact between the case of
Bulgaria and that of Thailand (period that elapsed between the declaration
and admission to the United Nations; time that elapsed between the
dissolution of the Permanent Court and admission to the United Nations).
But these differences do not in any way affect the application of the
principle laid down in the Judgment of the Court. The Court states in its
1959 Judgment that consent to the transfer of a declaration from one Court
to the other can be deemed to have been given only by a State signatory of
the Charter. The reference made by the Court [p 46] (Reports 1959, p. 142)
to the case of a State which, like Bulgaria, has for many years remained a
stranger to the Statute does not in any way restrict the purport of the
preceding statement, in the sense that consent to the transfer must be
deemed to be non-existent only when a fairly long time has passed before
admission to the United Nations.
6. Cambodia further claims, both in her Observations and in her oral
pleadings, that consent by Thailand to the transfer of her declaration from
the Permanent Court to the International Court can be inferred from the
attitude maintained by Thailand herself in that Thailand held the transfer
to have taken place through the effect of Article 36, paragraph 5.
This argument raises a question other than that of interpretation of Article
36, paragraph 5. Once this provision is interpreted in conformity with the
Court's opinion as meaning that it expresses consent to transfer only on the
part of States which signed the Charter, we have to consider whether and how
such transfer might be effected, in the case of a non-signatory State,
otherwise than through the effect of Article 36, paragraph 5. The question
could only be settled on the basis of Article 36, paragraph 2. It would have
to be seen, in particular, whether the declaration referred to in that
clause might be replaced by a tacit manifestation of intention. The answer
to that could only be in the negative. The decisions in the cases cited by
Cambodia to show that acceptance of the Court's jurisdiction is not
dependent upon observance of any specific forms are irrelevant. Those
decisions related to acceptance of the Court's jurisdiction in a particular
case. But, on the contrary, for the acceptance of what is called the
compulsory jurisdiction of the Court by means of the declaration mentioned
in paragraph 2 of Article 36, the requirements stated in that provision must
be observed—and quite independently of the legal character possessed by the
declaration (unilateral act or part of an agreement).
In any event, it is not possible to see in Thailand's attitude, as indicated
in the Cambodian Observations and in the pleadings of the Cambodian Counsel,
any manifestation of an intention to accept the compulsory jurisdiction of
the International Court. An intention to accept compulsory jurisdiction is
one thing; quite another is the belief, whether correct or mistaken, of
being already subject to that jurisdiction.
7. We must therefore examine the Thailand argument according to which the
fact that Thailand's submission to the compulsory jurisdiction of the
Permanent Court had come to an end on 19 April 1946, combined with the fact
that, according to the decision of the Court, that submission had not been
replaced by submission to the compulsory jurisdiction of the International
Court through the effect [p 47] of Article 36, paragraph 5, prevented the
declaration of 20 May 1950 from having any effects. '
To this end we must first define what is meant by "renewing" an earlier
declaration and, in particular, what Thailand meant to do when she declared
on 20 May 1950 that she was renewing the declaration of 20 September 1929.
The question I have just raised relates to the case of a declaration
renewing an earlier declaration. What is known as a "tacit renewal" is an
altogether different case, one where there is no new declaration at all. In
such a case, too, there can be no question of the automatic renewal of the
earlier submission to the jurisdiction of the Court, since this is the case
of an earlier submission which, unless denounced, will continue to produce
its effects.
8. So far as concerns the present case (and, in general, the case of a
declaration renewing an earlier declaration), we have to determine the
relationship between a declaration renewing an earlier declaration and the
declaration that is renewed.
That relationship does not concern the effects of the renewed declaration.
In other words, the new declaration does not purport to modify the effects
of the earlier declaration in the sense of prolonging or extending those
effects.
The relationship concerns rather the content of the new declaration. Just
because it is a new declaration, it is an altogether independent one even
though its content is determined by reference to an earlier declaration.
Such reference may be more or less comprehensive. The reference by one
declaration to the other need not effect an absolute identity of content
between the two declarations.
In the first place, the very idea of renewal implies some difference between
the two declarations in the matter of their time factors.
In connection with those factors it has also to be observed that the moment
from which the new declaration begins to produce its effects does not need
to coincide with the moment when the effects of the earlier declaration
cease. On the contrary, it is quite possible for a declaration which states
the intention to "renew" an earlier declaration to date the beginning of its
effects from a moment subsequent to that at which the effects of the renewed
declaration terminated; the consequence of this is to break the continuity
of the periods covered by the two declarations. In the same way, the effects
of the new declaration may begin before the moment stated in the earlier
declaration as the moment at which its effects are to terminate; in other
words, the new declaration may replace the declaration that it is renewing
for a portion of the latter's duration. [p 48]
This is the situation in the present case. The declaration of 3 May 1940,
renewing the declaration of 20 September 1929 for a ten-year period as from
7 May 1940, expired on 6 May 1950. Yet the declaration of 20 May 1950
renewed the declaration of 1929 for a further period of ten years as from 3
May 1950.
Apart from the time factors, a declaration purporting to renew an earlier
one, while determining its content by reference to the renewed declaration,
may depart from it to a greater or lesser extent. That does not prevent it
from being rightly termed the renewal of an earlier declaration.
With regard to the declarations by Thailand made on 20 September 1929 and
20 May 1950, the two declarations are found to be identical so far as
concerns certain conditions accompanying each of them, through the fact that
the declaration of 1950 renews that of 1929 "with the limits and subject to
the same conditions and reservations" as set forth in the latter. On the
other hand, there is a fundamental difference in the very object of the two
declarations: the 1929 declaration relates to the jurisdiction of the
Permanent Court, whereas the declaration of 1950 relates to the jurisdiction
of the International Court. Their object could only be called identical if
the object of the 1929 declaration (renewed in 1940) were regarded as
already transformed by the supposed effect of Article 36, paragraph 5. There
is however no mention of such transformation in the declaration of 1950.
9. Accordingly, a declaration that renews an earlier declaration is an
independent declaration, although it refers to the renewed declaration for
the purpose of determining its content. It is not a declaration purporting
to prolong the effects of the declaration it renews. It purports to produce
effects which, in themselves, are independent of the effects produced by the
declaration renewed.
It follows in the first place that renewal does not presuppose the initial
validity of the declaration renewed. It is therefore quite possible to renew
a declaration which, because it is void, has never produced any effects.
In the second place, it is possible to renew a declaration which is no
longer in force at the time of renewal.
This last possibility is proved by Thailand's own attitude both on the
occasion of the declaration of 3 May 1940 and on the occasion of that of 20
May 1950.
The declaration of 20 September 1929, made subject to ratification,
achieved fulfilment and came into force on 7 May 1930, when its ratification
was deposited with the Secretary-General of the League of Nations. As that
declaration had been made for a period of ten years, that period expired on
6 May 1940. The declaration renewing the declaration of 20 September 1929,
although [p 49] it was dated 3 May 1940, did not achieve fulfilment until 9
May 1940 by its deposit with the Secretary-General of the League of Nations.
(It should be mentioned in this connection that the declaration of 3 May
1940 contained no reservation about ratification, for the reference to the
limits, conditions and reservations set forth in the declaration of 20
September 1929 cannot be deemed to include the reservation concerning
ratification.) It is true that the declaration of 1940, although it
achieved fulfilment on 9 May, produced its effects, in a retroactive manner,
as from 7 May. Nevertheless, at the moment when the renewal took place by
deposit of the declaration, the declaration it renewed was no longer in
force.
The declaration of 1940, haying been made for a period of ten years
beginning on 7 May 1940, would have remained in force until 6 May 1950 if,
as Thailand believed, Article 36, paragraph 5, of the Statute had operated
in regard to it. But the last renewal was made by a declaration bearing the
date of 20 May 1950 and achieved fulfilment by deposit with the
Secretary-General of the United Nations on 13 June 1950 (this declaration,
like the previous one, was not accompanied by any reservation about
ratification). Both the dates mentioned (20 May and 13 June 1950) are
subsequent to the time at which the 1929 declaration, renewed in 1940, would
have lapsed even if Article 36, paragraph 5, had been operative in respect
of it (it is of no importance that the 1950 declaration was made retroactive
as from 3 May, that is to say, as from a date that is even earlier than that
of the supposed expiry of the renewed declaration). Thailand may have been
convinced that, pursuant to Article 36, paragraph 5, her declaration had
continued to exercise its effects even after the dissolution of the
Permanent Court; but it is in any case quite certain that, when she renewed
her declaration by the declaration of 20 May 1950, deposited on 13 June
1950, Thailand knew very well that at that time the declaration which she
professed a wish to renew had ceased to be in force.
Thailand's attitude at the time of the two declarations of 1940 and 1950
proves that her argument based on the impossibility of renewing a
declaration that is no longer in force is without foundation. The attitude
of Thailand as evinced by the declaration of 1950 is especially decisive on
this point. If, at the time when that declaration was made, the declaration
which was to be renewed was beyond all doubt no longer in force, no
importance can attach to the fact that the renewed declaration had lapsed on
19 April 1946 or rather (as Thailand herself believed) on 6 May 1950.
10. In reality, the declaration of 20 May 1950 is an independent
declaration, although, for determination of its content, it refers to [p 50]
the earlier declarations. It is only this reference which the formula of
renewal is intended to indicate. By that formula Thailand expressed her
intention to accept the jurisdiction of the International Court on certain
conditions, some of which were determined by a reference to the earlier
declarations. Thailand did not express her intention of prolonging her
submission to the jurisdiction of the Court in so far as such submission
could be deemed to exist in fact. No such effect was in any case possible
because, as Thailand very well knew, the declaration which it was sought to
renew was no longer in force at the time when the new declaration was made.
(Signed) Gaetano Morelli. |
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