| |
[p.158]
The International Court of Justice,
composed as above,
after deliberation,
having regard to Articles 36 and 48 of the Statute of the Court,
Makes the following Order:
Whereas on August 22nd, 1958, the Ambassador of the United States of America
to the Netherlands filed in the Registry an Application dated July 25th,
1958, and signed by the Agent for the Government of the United States of
America instituting pro-[p 159]ceedings before the Court against the
Government of the Union of Soviet Socialist Republics on account of "certain
willful acts committed by military aircraft of the Soviet Government on
September 4, 1954, in the international air space over the Sea of Japan
against a United States Navy P2-V-type aircraft, commonly known as a Neptune
type, and against its crew";
Whereas the Application was duly communicated by the Registry on August
22nd, 1958, to the Ambassador of the Union of Soviet Socialist Republics to
the Netherlands;
Whereas the AppHcation was also communicated by the Registry to the Members
of the United Nations, through the Secretary-General of the United Nations,
and to the other States entitled to appear before the Court;
Whereas the Application contains the following paragraphs:
"The United States Government, in filing this application to the Court,
submits to the Court's jurisdiction for the purposes of this case. The
Soviet Government appears not to have filed any declaration with the Court
thus far, although it was invited to do so by the United States Government
in note 176 of August 19, 1957, a copy of which is also annexed hereto. The
Soviet Government in a note dated October 10, 1957, which is made an annex
to the present application, rejected the United States Government's
invitation. The Soviet Government is, however, qualified to submit to the
jurisdiction of the Court in this matter and may, upon notification of this
application by the Registrar, in accordance with the Rules of the Court,
take the necessary steps to enable the Court's jurisdiction over both
parties to the dispute to be confirmed.
The United States Government thus founds the jurisdiction of this Court on
the foregoing considerations and on Article 36 (1) of the Statute."
Whereas in a letter dated September 26th, 1958, from the Charge d'affaires
a.i. of the Union of Soviet Socialist Republics in the Netherlands to the
Registrar it was stated that:
"The Government of the USSR in its note of October 10, 1957, as well as in
previous notes of September 5 and 8, 1954, and of January 21, 1957, stated
that since the American military aircraft of the Neptune-type violated the
state frontier of the USSR in the Cape Ostrovnoi region and opened fire on
Soviet fighters first, responsibility for the incident taken place on
September 4, 1954, and consequences of it fully lies on the American side.
In the above-mentioned note of October 10, 1957, the Government of the USSR
in response to the proposal of the Government of the USA transmitting this
case for hearing in the International Court of Justice communicated that no
basis for it can be seen. [p 160]
I should like to draw your attention to the Article 36 of the Statute of
the Court according to which any dispute may be transmitted to the
International Court of Justice only by common consent of both sides.
As appears from above-stated the Government of the USSR has already informed
the Government of the USA formerly that the Soviet Government does not give
its consent for hearing this case in the International Court of Justice.
Under these conditions the Government of the USA having applied to the
Court, acted in disaccord with the Statute of the International Court of
Justice.
The Government of the USSR deems that in this case there are no questions
which are of need to be considered by the International Court of Justice and
as before does not see any basis for turning this question over for
examination by the International Court."
Whereas a true copy of the above-mentioned letter was communicated to the
Agent for the Government of the USA on September 30th, 1958;
Whereas, in a letter dated November 25th, 1958, and addressed to the
Registrar, the Agent for the Government of the United States of America
stated:
"The United States has noted that the Soviet Charge d'Affaires ad interim in
the Netherlands, upon the instructions of his Government, stated that his
Government did not give its consent for the settlement of the dispute
described in the United States application by the International Court of
Justice.
The United States Government must take this opportunity to express its
profound disagreement with the further statement of the Soviet Government
that in filing its application for a settlement of the dispute involved by
the International Court of Justice the United States Government 'acted in
disaccord with the Statute of the International Court of Justice' because
the United States Government had not received the prior consent of the
Soviet Government to submit the dispute to this Court for decision. The
United States Government of course also contests the statement that 'there
are no questions which are of need to be considered by the International
Court of Justice and ... does not see any basis for turning this question
over for examination by the International Court'. On the contrary, the
United States Government believes that international law and order depend
on the peaceful settlement of disputes between governments of international
questions of fact and law as described in the Statute. It is now well
settled that any government qualified to appear before this Court may file
its application without prior special agreement."
Whereas, in these circumstances, the Court finds that it has not before it
any acceptance by the Government of the Union of Soviet [p 161] Socialist
Republics of the jurisdiction of the Court to deal with the dispute which is
the subject of the Application submitted to it by the Government of the
United States of America and that therefore it can take no further steps
upon this Application;
The Court
orders that the case shall be removed from the list.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this ninth day of December, one thousand nine
hundred and fifty-eight, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
United States of America and to the Government of the Union of Soviet
Socialist Republics respectively.
(Signed) Helge Klaestad,
President.
(Signed) S. Aquarone,
Acting Registrar. |
|
