doctype: rådgivande yttrande

identifier: ICJ 8 (Advisory opinion, 1950-03-30)

caseName: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania

decisionType: advisory opinion

reportsCitation: I.C.J. Reports 1950, p. 65

title: Advisory opinion of 30 March 1950 (first phase)

text: INTERNATIONAL COURT OF JUSTICE

text: 1950 '95"

text: YEAR

text: March 30th General List

text: March 3oth, 1950 No. 8

text: INTERPRETATION OF PEACE TREATIES WITH BULGARIA, HUNGARY AND ROMANIA

text: Advisory function.-Competence of the Court : objection on the ground of alleged lack of competence of the General Assembly, based on the character of the Court as a n organ of the United Nations ; Article 2, paragraph 7 , of the Charter.-Power of the Court to reply to a R q u e s t for Opinion in spite of the opposition of certain States; duty to ansmer ; limits of this duty ; Article 65 of the Statute.- Qztestions relating solely to the ionditions of application of a procedure, provided jor b y treaty, for the settlement of disputes.-Article 68 o f the Statzrte : discretion allowed to the Court.-Existence of disputes ; applicability of the procedure provided for by tvzat.y for the settlement of disputes to disputes concerning the i n b r ~ r e t a t i o n or execution of the treaty.-Definition of a question put to the Court.-Compulsory settlement of disputes by Treaty Commissions ; obligation for the parties to the disputé to co-operate i n the constitution of the Commissions by appointing their repvesentatives.

text: ADVISORY OPINION

text: Present : President BASDEVANT ; Vice-President GUERRERO ;

text: J ~ d g e s ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir ARNOLD MCNAIR, KI-AESTAD, BADAWI

text: PASHA, KRYLOV, READ, HSU MO, AZEVEDO; Registrar

text: HAMBRO.

text: 4 composed a s above,

text: gives the following Advisory Opinion :

text: On October zznd, 1949, the General Assembly of the United Nations adopted the following Resolution :

text: "Whereas the United Nations, pursuant to Article 55 of the Charter, shall promote universal respect for, and observance of, human rights and fundamental freedoms for al1 without distinction as to race, sex, language or religion, Whereas the General Assembly, a t the second part of its Third Regular Session, considered the question of the observance in Bulgaria and Hungary of human rights and fundamental freedoms,

text: Whereas the General Assembly, on 30 Apnl 1949, adopted

text: Resolution 272 (III) concerning this question in which it expressed its deep concern a t the grave accusations made against the Governments of Bulgaria and Hungary regarding the suppression of human rights and fundamental freedoms in those countries ;, noted with satisfaction that steps had been taken by several States signatories to the Treaties of Peace with Bulgaria and Hungary regarding these accusations ; expressed the hope that measures would be diligently applied, in accordance with the Treaties, in order to ensure respect for human rights and fundamental freedoms ; and most urgently drew the attention of the Governments of Bulgaria and Hungary to their obligations under the Peace Treaties, including the obligation to co-operate in the settlement of the question,

text: Whereas the General Assembly has resolved to consider also

text: at the Fourth Regular Session the question of the observance in Romania of human rights and fundamental freedoms,

text: Whreas certain of 'the Allied and Associsted Powers signatones to the Treaties of Peace with Bulgana, Hungary and Romania have charged the Governments of those countries with violations of the Treaties of Peace and have called upon those Governments to take remedial measures,

text: Whereas the Governments of Bulgaria, Hungary and Romania

text: have rejected the charges of Treaty violations,

text: W h e a s the Govemments of the Allied and Associated Powers

text: concerned have sought unsuccessfully to refer the question of Treaty violations to the Heads of Mission in Sofia, Budapest and Bucharest, in pursuance of certain provisions in the Treaties of Peace, Wlzereas the Govemments of these Allied and Associated Powers have called upon the Governments of Bulgaria, Hungary and

text: OPIN. O F 30 III 50 (INTERPRETATION O F PEACE TRE- TIE ES) 67

text: Romania to join in appointing Commissions pursuant to the provisions of the respective Treaties of Peace for the settlement of disputes concerning the interpretation or execution of these Treaties,

text: have refused to appoint their representatives to the Treaty Commissions, maintaining that they were under no legal obligation t o do so, Whereas the Secretary-General of the United Nations is authorized by the Treaties of Peace, upon request by either party to a dispute, to appoint the third member of a Treaty Commission i f the parties fail to agree upon the appointment of the third member, Whereas it is important for the Secretary-General to be advised authoritatively concerning the scope of his authority under the Treaties of Peace,

text: T h Gelzeral Assembly

text: r. Exfiresses its continuing interest in and its increased concern a t the grave accusations made against Bulgaria, Hungary and Romania ;

text: Records its opinion that the refusal of the Governments of Bulgaria, Hungary and Romania to co-operate in its efforts to examine the grave charges with regard to the observanse of human rights and fundamental freedoms justifies this concern of the General Assembly about the state of affairs prevailing in Bulgaria, Hungary and Romania in this respect ;

text: Decides to submit the following questions to the International

text: Court of Justice for an advisory opinion : '1. Do the diplomatic exchanges between Bulgar'ia, Hungary and Romania, on the one hand, and certain Aliied and Associated Powers signatories to the Treaties of Peace, on the other, concerning the implementation of Article 2

text: of the Treaties with Bulgaria and Hungary and Article 3

text: of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania ?'

text: In the event of an affirmative reply to question 1 :

text: 'II. Are the Governments of Rulgaria, Hungary and Romania obligated to carry out the provisions of the articles referred to in question 1, including the provisions for the appointment of their representatives to the Treaty Commissions ?' In the event of an affirmative reply to question I I and if within t.hirty days from the date when the Court delivers its opinion, 6 the Governments concerned have not notified the Secretary- General that they have appointed their representatives to the Treaty Commissions, and the Secretary-General has so advised the International Court of Justice : 'III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, is the Secretary-General of the United Nations authonzed to appoint the third member of the Commission upon the request of the other party to a dispute according to the provisions of the respective Treaties ?'

text: In the event of an affirmative reply to question I I I : 'IV. Would a Treaty Commission composed of a representative of one party and a third member appointed by the Secretary-General of the United Nations constitute a Commission, within the nieaning of the relevant Treaty articles, competent to make a definitive and binding decision in settlement of a dispute ?'

text: Requests the Secretary-General to make available to the International Court of Justice the relevant exchanges of diplomatic correspondence communicated to the Secretary-General for circulation to the Members of the United Nations and the records of the General Assembly proceedings on this question ;

text: Decides to retain on the agenda of the Fifth Regular Session of the General Assembly the question of the observance of human nghts and fundamental freedoms in Bulgaria, Hungary and Romania, with a view to ensuring that the charges are appropnately examined and dealt with."

text: By a letter of October 31st, 1949, filed in the Registry on November 3rd, the Secretary-General of the United Nations transmitted t o the Court a certified tnie copy of the General Assembly's Resolution. On November 7th, 1949, in accordance with paragraph I of Article 66 of the Court's Statute, the Registrar gave notice of the Request t o al1 States entitled to.appear before the Court. On the same date, the Registrar, by means of a special and direct communication as provided in paragraph 2 of the above-mentioned article, informed all States entitled t o appear before the Court and parties t o one or more of the above-mentioned Peace Treaties (Australia, Canada, United States of America, Greece, India, New Zealand, Pakistan, United Kingdom of Great Britain and Northern Ireland, Byelorussian Soviet Socialist Republic, Ukrainian Soviet Socialist Republic, Czechoslovakia, Union of Soviet Socialist Republics, Union of South Africa, Yugoslavia) that the Court was prepared t o receive from them written statements on the questions submitted t o it for an advisory opinion and to hear oral statements a t a date which would be fixed in due course. An identical communication was sent, also on November 7th, in pursuance of paragraph I of Article 63 of the Statute, to the other States parties to one of the above-mentioned Treaties, namely, Bulgaria, Hungary and Romanid. These communications were accompanied by copies of an Order, made on the same date, by which the Acting President of the Court appointed January 16th, 1950, as the date of expiry of the timelimit for the submission of written statements and reserved the rest of the procedure for further decision. Written statements and con~munications were received within the prescribed time-limit from the following States : United States of America, United Kingdom, Bulgaria, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Byelorussian Soviet Socialist Republic, Romania, Czechoslovakia, Australia and Hungary. I n accordance with Article 65 of the Statute, the Secretary- General of the United Nations transmitted to the Registrar a set of documents which reached the Registry on November 26th, 1949. Some additional documents, which had subsequently been filed with the Secretariat, were fonvarded to the Registry, where they arrived on Febmary zlth, 1950. Al1 these documents are enumerated in the list attached t o the present Opinion. In a letter dated January 23rd, 1950, the Assistant Secretary- General in charge of the Legal Department of the Secretariat of the United Nations announced that he intended to take part in the oral proceedings and to submit a statement on behalf of the Secretary-General. The Government of the United Kingdom and the Government of the United States of America stated, in letters dated respectively January 6th and February ~ o t h , 1950, that they intended t o submit oral statements. At public sittings held on February 28th and on March 1st and znd, 1950, the Court heard oral statements submitted :

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

text: on behalf of the Govemment of the United States of America by the Honorable Benjamin V. Cohen ;

text: on behalf of the Government of the United Kingdom by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser of the Foreign Office.

text: I n conformity with the Resolution of the General Assembly of October zznd, 1949, the Court is a t present called upon to give an Opinion only on Questions 1 and II set forth in that Resolution. The power of the Court to exercise its advisory function in the present case has been contested by the Governments of Bulgaria, Hungary and Romania, and also by several other Governments, in the communications which they have addressed to the Court. This objection is founded mainly on two arguments. I t is contended that the Request for an Opinion was an action ultra vires on the part of the General Assembly because, in dealing with the question of the observance of human rights and fundamental freedoms in the three States mentioned above, it was "interfering" or "intervening" in matters essentially within the domestic jurisdiction of States. This contention against the exercise by the Court of its advisory function seems thus to be based on the alleged incompetence of the General Assembly itself, an incompetence deduced from Article 2, paragraph 7, of the Charter. The terrils of the General Assembly's Resolution of October zznd, 1949, considered as a whole and in its separate parts, show that this argument is based on a misunderstanding. When the vote was taken on this Resolution, the General Assembly was faced with a situation arising out of the charges made by certain Allied and Associated Powers, against the Governments of Bulgaria, Hungary and Romania of having violated the provisions of the Peace Treaties concerning the observance of human rights and fundamental freedoms. For the purposes of the present Opinion, it suffices to note that the General Assembly justified the adoption of its Resolution by stating that "the United Nations, pursuant to Article 55 of the Charter, shall promote universal respect for and observance of human rights and fundamental freedonis for al1 without distinction as to race, sex, language or religion". The Court is not called upon to deal with the charges brought before the General Assembly since the Questions put to the Court relate neither to the alleged violations of the provisions of the Treaties concerning human rights and fundaniental freedoms nor to the interpretation of the articles relating to these matters. The object of the Request is much more limited. It is directed solely to obtaining from the Court certain clarifications vf a legal nature regarding the applicability of the procedure for the settlement of disputes by the Commissions provided for in the express terms of Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary and Article 38 of the Treaty with Romania. The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a State. I t is a question of inter-

text: 9 national law which, by its very nature, lies within the competence of the Court. These considerations also suffice to dispose of the objection based on the principle of domestic jurisdiction and directed specifically against the competence of the Court, namely, that the Court, as an organ of the United Nations, is bound t o observe the provisions of the Charter, including Article 2, paragraph 7.

text: The same considerations furnish an answer to the objection that the advisory procedure before the Court would take the place of the procedure instituted by the Peace Treaties for the settlement of disputes. So far from placing an obstacle in the way of the latter procedure, the object of this Request is to facilitate it by seeking information for the General Assembly as to its applicability t o the circumstances of the present case. It thus appears that these objections to the Court's competence to give the Advisory Opinion which has been requested are illfounded and cannot be upheld. Another argument that has been invoked against the power of the Court to answer the Questions put to it in this case is based on the opposition of the Governments of Bulgaria, Hungary and Romania to the advisory procedure. The Court cannot, it is said, give the Advisory Opinion requested without violating the well-established principle of international law according t o which no judicial proceedings relating to a legal question pending between States can take place without their consent. This objection reveals a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions. The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard t o advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. I t follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it ; the reply of the Court, itself an "organ of the United Nations", represents its participation in the activities of the Organization, and, in principle, should not be refused. There are certain limits, however, to the Court's dutv to reply to a Request for an Opinion. I t is not merely an "organ of the United Nations", it is essentially the "principal judicial organ" of the Organization (Art. 92 of the Charter and Art. I of the Statute). I t is on account of this character of the Court that its

text: OPIK. O F 30 I I I 50 (IS'TERPRETATION O F P E A C E TRE- TIE ES) 72 power to answer the present Request for an Opinion has been challenged. Article 65 of the Statute is permissive. I t gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request. In the opinion of the Court, the circumstances of the present case are profoundly different from those which were before the Permanent Court of International Justice in the Eastern Carelia case (Advisory Opinion Ko. 5), when that Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties, and that at the same time it raised a question of fact which could not be elucidated without hearing both parties.

text: As has been observed, the present Request for an Opinion is solely concerned with the applicability to certain disputes of the procedure for settlement instituted by the Peace Treaties, and it is justifiable to conclude that it in no way touches the merits of those disputes. Furthermore, the settlement of these disputes is entrusted solely to the Commissions provided for by the Peace Treaties. Consequently, it is for these Commissions to decide upon any objections which may be raised to their jurisdiction in respect of any of these disputes, and the present Opinion in no way prejudges the decisions that may be taken on those objections. I t follows that the legal position of the parties to these disputes cannot be in any way compromised by the answers that the Court may give to the Questions put to it. I t is true that Article 68 of the Statute provides that the Court in the exercise of its advisory functions shall further be guided by the provisions of the Statute which apply in contentious cases. But according to the same article these provisions would be applicable only "to the extent to which it [the Court] recognizes them to be applicable". I t is therefore clear that their application depends on the particular circumstances of each case and that the Court possesses a large amount of discretion in the matter. In the present case the Court is dealing with a Request for an Opinion, the sole object of which is to enlighten the General Assembly as t o the opportunities which the procedure contained in the Peace Treaties may afford for putting an end to a situation which has been presented t o it. That being the object of the Request, the Court finds in the opposition to it made by Bulgaria, Hungary and Romania no reason why it should abstain from replying to the Request.

text: For the reasons stated above, the Court considers that it has the power to answer Questions 1 and I I and that it is under a duty to do so.

text: II

text: OPIN. OF 30 III 50 (INTERPRETATION OF PEACE TREATIES) 73

text: Question 1 is framed in the following terms : "Do the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatones to the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and

text: Hungary and Article 3 of the Treaty with Romania, disclose disputes subject to the provisions for the settIement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary and Article 38 of the Treaty of Peace with Romania ?" The text of the articles mentioned in Question 1 is a s follows : Article 2 of the Treaty with Bulgaria (to which correspond mutatis mutandis Article 2 , papagraph 1, of the Treaty with Hungary and Article 3, paragraph 1, of the Treaty with Romania) : "Bulgaria shall take al1 measures necessary to secure to al1 persons under Bulgarian jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of human rights and of the fundamental freedoms, including freedom of expression, of press and publication, of religious worship, of political opinion and of public meeting." Article 36 of the Treaty with Bulgaria (to which correspond mutatis mutandis Article 40 of the Treaty with Hungary a n d Article 38 of the Treaty with Romania) :

text: "1. Except where another procedure is specifically provided under any article of the present Treaty, any dispute concerning the interpretation or execution of the Treaty, which is not settled by direct diplomatic negotiations, shall be referred to the Three Heads of Mission acting under Article 35, except that in this case

text: the Heads of Mission will not be restncted by the time-limit provided

text: in that Article. Any such dispute not resolved by them within a period of two months shall, unless the parties to the dispute mutually agree upon a n ~ t h e r means, of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member selected by mutual agreement of the two parties from nationals of a third country. Should the two parties fail to agree within a period of one month upon the appointment of the third member, the Secretary-General of the United Nations may be requested by either party to make the appointment.

text: 2. The decision of the majority of the members of the Commission shall be the decision of the Commission, and shall be accepted by the parties as definitive and binding." The text of Article 35, which is referred t o in Article 36 of t h e Treaty with Bulgaria (and t o which correspond mutatis mutandis Article 39 of t h e Treaty with Hungary and Article 37 of t h e Treaty with Romania), is a s follows:

text: "1. For a period not to exceed eighteen months from the coming into force of the present Treaty, the Heads of the Diplomatic Missions in Sofia of the Soviet Union, the United Kingdom and the United States of America, acting in concert, will represent the Allied and Associated Powers in dealing with the Bulgarian

text: Government in all matters concerning the execution and interpretation of the present Treaty. 2. The Three Heads of Mission will give the Bulgarian Government such guidance, technical advice and clarification as may be necessary to ensure the rapid and efficient execution of the present Treaty both in letter and in spirit. 3. The Biilgarian Government shall afford the said Three Heads of Mission all necessary information and any assistance which they may require in the fulfilment of the tasks devolving on them under the present Treaty."

text: Question 1 involves two main points. First, do the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories to fhe Peace Treaties on the other, disclose any disputes ? Second, if they do, are such disputes among those which are subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary, and Article 38 of the Treaty with Romania ?

text: Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non-existence. I n the diplomatic correspondence submitted to the Court, the United Kingdom, acting in association with Australia, Canada and New Zealand, and the United States of America charged Bulgaria, Hungary and Romania with having violated, in various ways, the provisions of the articles dealing with human rights and fundamental freedoms in the Peace Treaties and called upon the three Governments t o take remedial measures to carry out their obligations under the Treaties. The three Governments, on the other hand, denied the charges. There has thus arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen.

text: This conclusion is not invalidated by the text of Article 36 of the Treaty with Bulgana (Article 40 of the Treaty with Hungary and Article 38 of the Treaty with Romania). This article, in refemng t o "any dispute", is couched in general terms. It does not justify limiting the idea of "the dispute" t o a dispute between the United States of America, the United Kingdom and the Union of Soviet Socialist Republics acting in concert on the one hand, and Bulgaria

text: (Hungary or Romania) on the other. I n the present case, a dispute exists between each of the three States-Bulgaria, Hungary and Romania-and each of the Allied and Associated States which sent protests to them.

text: The next point to be dealt with is whether the disputes are subject to the provisions of the articles for the settlement of disputes contained in the Peace Treaties. The disputes must be considered to fall within those provisions if they relate to the interpretation or execution of the Treaties, and if no other procedure of settlement is specifically provided elsewhere in the Treaties.

text: Inasmuch as the disputes relate to the question of the performance or non-performance of the obligations provided in the articles dealing with human rights and fundamental freedoms, they are clearly disputes concerning the interpretation or execution of the Peace Treaties. I n particular, certain answers from the Governments accused of violations of the Peace Treaties make use of arguments which clearly involve an interpretation of those Treaties.

text: Since no other procedure is specifically provided in any other article of the Treaties, the disputes must be subject t o the methods of settlement contained in the articles providing for the settlement of all disputes. The Court thus concludes that Question 1 must be answered in the affirmative.

text: I n these circumstances, it becomes necessary to take up Question II, which is as follows :

text: "Are the Governments of Bulgaria, Hungary and Romania obligated to carry out the provisions of the articles referred to in Question 1, including the provisions for the appointment of their representatives to the Treaty Commissions ?"

text: Before answering the Question, the Court must determine the scope of the expression "the provisions of the articles referred to in Question 1". Question 1 mentions two sets of articles : one set being those articles concerning human rights, namely, Article 2

text: of the Treaties with Bulgaria and Hungary, and Article 3 of the

text: Treaty with Romania ; the other set being those articles concerning the settlement of disputes, namely, Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary and Article 38 of the Treaty with Romania. The Court considers that the expression "the provisions of the articles referred to in Question 1" refers only to the articles providing for the settlement of disputes, and does not refer t o the articles dealing with human rights.

text: This view is clearly borne out by the various considerations stated in the Resolution of the General Assembly of October zznd, 1949. I t is confirmed by the fact that the Questions put to the Court have for their sole object to determine whether the disputes, if they exist, are among those falling under the procedure provided for in the Treaties with a view to their sextlement by arbitration. The Court does not think that the General Assembly would have asked it whether Bulgaria, Hungary and Romania are obligated to carry out the articles concerning human rights. For, in the first place, the three Governments have not denied that they are obligated t o carry out these articles. In the second place, the words which precede Question II, "In the event of an affirmative answer to Question 1", exclude the idea that Question I I refers to the articles relating to human rights. There is no reason why the General Assembly should have made the consideration of the question concerning human rights depend on an affirmative amwer to a question relating to the existence of disputes. The articles concerning human rights are mentioned in Question 1 only by way of describing the subjectmatter of the diplomatic exchanges between the States concerned.

text: -The real meaning of Question II, in the opinion of the Court, is this : In view of the disputes which have arisen and which have so far not been settled, are Bulgaria, Hungary and Romania obligated to carry out, respectively, the provisions of Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary, and Article 38 of the Treaty with Romania ?

text: The articles for the settlement of disputes provide that any dispute which is not settled by direct diplomatic negotiations shall be referred to the Three Heads of Mission. If not resolved by them within a period of two months, the dispute shall, unless the parties to the dispute agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member, to be selected in accordance with the relevant articles of the Treaties. The diplomatic documents presented to the Court show that the United Kingdom and the United States of America on the one hand, and Bulgaria, Hungary and Romania on the other, have not succeeded in settling their disputes by direct negotiations. They further show that these disputes were not resolved by the Heads of Mission within the prescribed period of two months. I t is a fact that the parties to the disputes have not agreed upon any other means of settlement. I t is also a fact that the United Kingdom and the United States of Amenca, after the expiry of the prescribed period, requested that the disputes should be settled by the Commissions mentioned in the Treaties.

text: This situation led the General Assembly t o put Question I I so as to obtain guidance for its future action.

text: The Court finds that all the conditions required for the commencement of the stage of the settlement of disputes b y the Commissions have been fulfilled. I n view of the fact that the Treaties provide that any dispute shall be referred to a Comnlission "at the request of either party", it follows that either party is obligated, a t the request of the other party, to CO-operate in constituting the Commission, in particular by appointing its representative. Othenvise the method of settlement by Commissions provided for in the Treaties would completely fail in its purpose. The reply to Question II, as interpreted above, must therefore be in the affirmative.

text: For these reasons,

text: THE COURT IS O F OPINION,

text: O n Question I .

text: by eleven votes t o three,

text: that the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories t o the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria

text: and Hungary and Article 3 of the Treaty with Romania, disclose

text: disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania ;

text: On Question II :

text: by eleven votes to three,

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

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this thirtieth day of March, one thousand nine hundred and fifty, in two copies, one of which will

text: 16 b e placed in the archives of the Court and the other transmitted t o the Secretary-General of the United Nations.

text: (Signed) BASDEVANT, President .

text: (Signed) E. HAMBRO, Registrar.

text: Judge AZEVEDO, while concurring in the Opinion of the Court, has availed himself of the right conferred on h i m by Article 57 of the Statute and appended to the Opinion a statement of his separate opinion. Judges WINIARSKI, ZORIEIC and KRYLOV, considering that the Court should have declined to give an Opinion in this case, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinions. (Initialled) J . B. (Initialled) E. H.

text: ANNEX

text: DOCUMENTS TRANSMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY T H E SECRETARY-GENERAL OF THE UNITED NATIONS IN ACCORDANCE WITH T H E RESOLUTION ADOPTED BY T H E GENERAL ASSEMBLY ON 22 OCTOBER, 1949

text: 1. RECORDS OF GENERAL ASSEMBLY, SECOND PART OF THIRD SESSION

text: Folder I.

text: Inclusion oj i t e m in agenda. Records o j proceedings. Records of the General Committee, 58th and 59th meetings. Records of the General Assembly, 189th and 190th plenary meetings.

text: Folder 2 .

text: Inclusion of i t e m in agenda. Documents. Letter dated 16 March, 1949, from the permanent representative of Bolivia to the Secretary-General requesting the inclusion of an additional item in the agenda of the third regular session of the General Assembly A/Szo

text: Letter dated 19 March, 1949, from the Australian Mission t o the United Nations addressed to the Secretary- General requesting the inclusion of an additional item in the agenda of the third regular session of the General Assembly AIS21 Agenda of the third regular session of the General Assembly ; report of the General Committee A1829

text: [See paragraphs

text: 3 a and 3 b.]

text: [Note-See Folder 4 for :

text: Telegram dated 4 A p r i l , I 9 4 9 , from the Government of the Republic of Hungary to the President of the General Assembly Al831

text: and Telegram dated 9 A p r i l , 1949, from the Government of the People's Republic

text: of Bulgaria to the Secretary- General -41832 and Covr. I .

text: Folder 3.

text: Ad hoc Political Committee.

text: Records of proceedings.

text: 34th meeting. 35th meeting. 36th meeting. 37th meeting. 38th meeting. 39th meeting. 40th meeting. 41st meeting.

text: Folder 4.

text: Ad hoc Political Comnzittee.

text: Documents.

text: Telegram dated 4 April, 1949, from the Government of the Republic of Hungary to the President of the General Assembly A1831 Telegram dated 9 April, 1949, from the Government of the People's Republic of Bulgaria to the Secretary-General Al832 and Corr. I Allocation of items on the agenda of the second part of the third session ; letter dated 13 April, 1949, from the President of the General Assembly to the

text: Chairman of the A d hoc Political

text: Committee AIAC.24147

text: Cuba : draft resolution A/AC.z4/48 and Corr. I Cuba : amended draft resolution A/AC.z4/48/Rev. 2 -lustralia : draft resolution A/AC.24/50 Bolivia : draft resolution A/AC.z4/51/Corr. I Australia : draft resolution A/AC.z4/5z Chile : amendment to the Bolivian draft resolution (A/AC.z4/51/Corr. 1) AlAC.24153

text: Colombia and Costa Rica : amendment to the Bolivian draft resolution (A/AC.z4/51/Corr. 1) A/AC.24/54 Cuba and Australia : amendment to the Bolivian resolution (A/AC.z4151/ Corr. 1) A/AC.q/ 56 Telegram dated 23 April, 1949, from the Government of the People's Republic of Hungary to the Secretary-General A/AC.z4/57

text: Telegram dated 27 April, 1949, from the Government of the People's Republic of Bulgaria to the Secretary-General A/AC.24/58

text: Report of the A d hoc Political Committee Al844

text: Plenary meetings of the General Assembly. Records of poceedings. 201st meeting. aoznd meeting. 203rd meeting.

text: Plenary meetings of the General Assembly. Documents. Resolution 272 (III), adopted by the General Assembly, 30 April, 1949. [Note-See Folder 4 for :

text: Report of the Ad hoc Political Committee A1844.1

text: II. RELEVANT EXCHANGES OF DIPLOMATIC CORRESPONDENCE COM- MUNICATED TO THE SECRETARY-GENERAL FOR CIRCULATION TO THE MEMBERS OF THE UNITED NATIONS

text: Letter dated 20 September, 1949, from the representative of the United States of America to the Secretary-General (with annexes) A/g85/Rev. I Letter dated 19 September, 1949, from the representative of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General (with annexes) A/ggo/Rev. I

text: III. RECORDS OF GENERAL ASSEMBLY, FOURTH SESSION

text: Folder 8.

text: Inclasion of item in agenda. Records of proceedings.

text: Records of the General Committee, 65th [See pages 3 and 4, meeting paragraphs 71-73, ana Page 7,

text: paragraphs 104

text: and 105. j

text: Records of the General Assembly, 224th [See pages 18 and 19, plenary meeting paragraphs 2-10,

text: and page 23,

text: after paragraph 56.1

text: I n c k s i o n of item in agenda. Documents.

text: Supplementary list of items for the agenda of the focrth regular session ; items praposed by Australia A1948

text: Adoption of the agenda of the fourth regular session and allocation of items to Committees ; report of the General Committee Al989

text: [See paragraphs 9-12.]

text: O P I S . O F 30 I I I 50 (INTERPRETATION O F P E A C E TRE- TIE ES) 118

text: Folder IO.

text: Ad hoc Political Committee. Records of proceedings.

text: 7th meeting. 8th meeting. 9th meeting. ~ c t h meeting. 11th meeting. 12th meeting. 13th meeting. 14th meeting. 15th meeting.

text: Folder II.

text: Ad hoc Political Committee. Documents.

text: Letter dated 26 September, 1949, from the President of the General Assembly

text: to the Chairman of the Ad hoc Political Committee AlAC.3 112 Bolivia, Canada and the United States of Amenca : draft resolution A/AC.~I/L.I/R~V. I Australia : amendment to the draft resolution proposed by Bolivia, Canada and the United States of America (A/AC.~I/L.I/R~V. 1) A/AC.y/L.z Brazil, Lebanon and the Netherlands : amendment to the draft resolution proposed by Bolivia, Canada and the United States of Amenca (A/AC.~I/L.I/R~V. 1) AlAc.31lL.3 Telegram dated 7 October, 1949, from the Government of the People's Republic of Romania to the Secretary- General AlAC.3rlL.4

text: Report of the Ad hoc Political Committee A / I O Z ~

text: Plenary meetivtgs of the General Assembly. Records of proceedings. 234th meeting. 23 5th meeting.

text: Folder 13.

text: Plenary meetings of the General Assembly . Documents. Resolution adopted by the General Assembly, 22 October, 1949. [Note-See Folder I I for :

text: Report of the Ad hoc Political Committee Al1023.1

title: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania


court: icj

identifier: ICJ 8 (Advisory opinion, 1950-07-18)

procedure: including the text of the declaration of Judge Krylov)

publisher: International Court of Justice

title: Advisory Opinion of 18 July 1950 (second phase)

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: July 18th

type: stycke

text: YEAR 1950

text: Geiieral List : No. 8

text: INTERPRETATION OF PEACE TREATIES W I T H BULGARIA, F-IUNGARY A N D R O M A N I A

text: (SECOND PHASE)

text: Interpretation of article of a treaty referring the settlement of disputes to a commission composed of one representative from each Party and a third member chosen by common agreement between the two parties ; power conferred upon the Secretary-General of the United Nations to proceed to the appointment of a third member. failing agreement between the parties.- InaPPlicability of this provision to the case i n which one of the parties refuses tu appoint its own commissioner.-Natural and mdinavy meaning of the terms ; meaning which accords with the normal order of the appointment of commissioner-provision to be strictly construed.-Breach) of a treaty obligation ; impossibility of providing a vemedy by modifying the conditions for the exercise of the power to appoint the third member as laid down i n the Treaties.-Impossibility to apply the principle of interpretation ut res magis valeat quam pereat contravy to the letter and spirit O / the Treaties.

text: ADVISORY OPINION

text: Present : President BASDEVANT ; Vice-President GUERRERO ;

text: Jzcdges ALVAREZ, HACKWORTH, WINIARSKI, DE VISSCHER, SIR ARNOLD MCNAIR, KLAESTAD, BADAWI

text: PASHA, KRYLOV, READ, HSU MO, AZEVEDO ; Registrar

text: HAMBRO.

text: OPIN. OF 18 VI1 50 (INTEHPRETATION OF PEACE TREATIES) 222

text: THE COURT,

text: composed a s above,

text: gives t h e foilowing Advisory Opinion :

text: On October zznd, 1949, t h e General Assembly of the United Nations adopted the following Resolution :

text: "Whreas the United Nations, pursuant to Article 5j of the Charter, shall promote universal respect for, and observance of, human rights and fundamentai freedoms for al1 without distinctioh as t o race, sex, language or religion, Whreas the General Assembly, a t the second part of its Third Regular Session, considered the question of the observance in Bulgaria and Hungary of human rights and fundamentai freedoms, Whereas the General Assembly, on 30 April 1949, adopted Resolution 272 (III) concerning this question in which it expressed its deep concern a t the grave accusations made against the Governments of Bulgaria and Hungary regarding the suppression of human nghts and fundamental freedoms in those countries; noted with satisfaction that steps had been taken by several States signatories to the Treaties of Peace with Bulgaria and Hungary regarding these accusations ; expressed the hope that mesures would be diligently applied, in accordance with the Treaties, in order t o ensure respect for human nghrs and fundamental freedoms ; and most urgen'cly drew the attention of the Govemments of Bulgaria and Hungary to their obligations under the Peace Treaties, including the obligation 'co co-operate in the settlement of the question,

text: W k e a s the General Açsembly has resolved t o consider also a t the Fourth Regular Session the question of the observance in Komania of human rights and fundamental freedoms,

text: W k e a s certain of the Allied and Associated Powers signatcnes to the Treaties of Peace with Bulgaria, Hungary and Romanis have charged the Governments of those conntries with violations of the Treaties of Peace and have called upon those Governments to take remedial measures, Whrzas the Governments of Bulgaria, Hiingary and Romania have rejected the charges of Treaty violations, Whereas the Governments of the Allied and Associated Pawers concerned have sought unsuccessfully to refer the question of Treaty violations to the Heads of Mission in Sofia, Budapesé and Bucharest, in pursuance of certain provisions in the Treâties of Peace, Whereas the Governments of these Allied and Associated Powers have calied upon the Governments of Bulgaria, H u n g q and

text: OPIN. OF 18 VI1 50 (INTERPRETATION OF PEACE TRE- TI ES) 223

text: Romania to join in appointing Commissions pursuant to the provisions of the respective Treaties of Peace for the settlement of. disputes concerning the interpretation or execution of these Treaties, Whereas the Govemments of Bulgaria, Hungary and Romania have refused t o appoint their representatives to the Treaty Commissions, maintaining that they were under no legal obligation to do so, Wlzereas the Secretary-General of the United Nations is authorized by the Treaties of Peace, upon request by either party to a dispute, to appoint the third member of a Treaty Commission if the parties fail t o agree upon the appointment of the third member, Wlzereas it is important for the Secretary-General to be advised authoritatively concerning the scope of his authority under the Treaties of Peace,

text: The Gelzeral Assembly

text: Exfiresses its continuing interest in and its increased concern a t the grave accusations made against Bulgaria, Hungary and Romania ; 2 . Records its opinion that the refusal of the Govemments of Bulgaria, Hungary and Romania t o co-operate in its efforts to examine the grave charges with regard to the observance of human rights and fundamental freedoms justifies this concern of the General -4sembly about the state of &airs prevailing in Bulgaria, Hungary and Romania in this respect ;

text: Decides to submit the following questions to the International Court of Justice for an advisory opinion : '1. Do the diplomatic exchanges between Bulgaria, Hungary and Romania, on the one hand, and certain Allied and Associated Powers signatories to the Treaties of Peace, on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania ?'

text: In the event of an affirmative reply to question 1 : 'II. Are the Governments of Bulgaria, Hungary and Romania obligated t o carry out the provisions of the articles referred to in question 1, including the provisions for the appointment of their representatives to the Treaty Commissions ? ' I n the event of an affirmative reply to question II andif, within thirty days from the date when the Court delivers its opinion,

text: 6 the Govemments concerned have not notified the Secretary- General that they have appointed their representatives to the Treaty Commissions, and the Secretary-General has so advised the International Court of Justice : 'III. If one party faiis to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgana, Hungary and Romania where that party is obligated t o appoint a representative to the Treaty Commission, is the Secretary-General of the United Nations authorized t o appoint the third member of the Commission upon the request of the other p v t y to a dispute according to the provisions of the respective Treaties ?'

text: I n the event of an affirmative reply to question I I I : 'IV. Would a Treaty Commission composed of a representative of one party and a third member appointed by the Secretary-General of the United Nations constitute a Commission, within the nieaning of the relevant Treaty articles, competent to make a definitive a n d binding decision in settlement of a dispute ?'

text: Requests the Secretary-General to make available to the

text: International Court of Justice the relevant exchanges of diplomatic correspondence communicated to the Secretary-General for circulation to the Members of the United Nations and the records of the General Assembly proceedings on this question ;

text: Decides t o retain on the agenda of the Fifth Regular Session of the General Assembly the question of the observance of human nghts and fundamental freedoms in Bulgaria, Hungary and Romania, with a view t o ensunng that the charges are appropriately examined and dealt with."

text: I n a n Opinion given on March 3oth, 1950 (I.C.J. Reports of Judgments, Advisory Opinions a n d Orders, 1950, pp. 65 et s q ~ ) , the Court answered :

text: To question 1 : "that the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories to the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and

text: Hungary and Article 3 of the Treaty with Romania, disclose

text: disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Huilgary, and Article 38 of the Treaty of Peace with Kornania ;"

text: To question II : "that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles referred

text: 7 to in Question 1, which relate to the settlement of disputes, including the provisions for the appointment of their representatires to the Treaty Commissions." On March 3oth, the Registrar notified the substance of the Court's answers t o the foregoing two questions by telegrams to the Secretary-General of the United Nations and to the Governments of all the signatories of the Peace Treaties. By telegram of May rst, 1950, confirmed by letter of the same date and filed in the Registry on May end, the Acting Secretary- General of the United Nations notified the Court that he had not received information, within thirty days of the date of the delivery of the Court's Advisory Opinion quoted above, that any one of the three Govemments had appointed its representative to the Treaty Commissions. By Order made on May 5th, 1950, the President of the Court, as the Court was not then sitting, decided: (1) to fix Monday, June 5th, 1950, as the date of expiry of the time-limit for the submission by the States concerned, of written statements on Questions I I I and IV of the foregoing Resolution ; (2) to reserve the rest of the procedure for further decision. A certified copy of this Order, the operative part of which had been notified by telegram of May 5th to the Secretary-General and the Governments concerned, was sent t o all these Governments by letter of May 9th. By letter of May 16th, 1950, the Secretary-General of the United Nations sent to the Registrar additional documents including new diplomatic correspondence an the present case, transmitted to the United Nations by the delegations of Canada, of the United Kingdom of Great Britain and Northern Ireland and of the United States of Americe. These documents are listed in an annex hereto.

text: By letter of June znd, 1950, a written statement from the Government of the United States of America relating to Questions I I I and IV was transmitted to the Registry of the Court. The United Kingdom Government had previously stated its views on Questions I I I and IT' in the written statement submitted during the first phase of this case. By letter of May 5th, 1950, the Assistant Secretary-General of the United Nations in charge of the Legal Department informed the Registry of his intention to take part in the oral proceedings. By letters of June 12th and zznd, 1q.50, respectively, the Government of the United States and the Cnited Kingdom Government stated their intention of submitting oral statements.

text: At public sittings held on June 27th and e l t h , 19j0, the Court heard oral statements submitted : 8

text: OPIN. O F 18 VI1 50 ~INTERPRETATION O F P E A C E TREATIES) 226

text: on behalf of the Secretary-General of the United Nations by Dr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department ; on behalf of the Government of the United States of America, by the Hon. Benjamin V. Cohen ; on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser of the Foreign Office.

text: Having stated, in its Opinion of March 3oth, 1950, that the Governments of Bulgaria, Hungary and Romania are obligated t o carry out the provisions of those articles of the Peace Treaties which relate t o the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions, and having received information from the Secretary-General of the United Nations that none of those Governments had notified him, within thirty days from the date of the delivery of the Court's Advisory Opinion, of the appointment of its representative t o the Treaty Commissions, the Court is now called upon t o answer Question I I I in the Resolution of the General Assembly of October zand, 1949, which reads as follows : "III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, is the Secnetary-Generai of the United Nations authorized to appoint the third member of the Commissioq upon the request of the other party to a dispute according to the provisions of the respective Treaties ?" Articles 36, 40 and 38, respectively, of th.: Peace Treaties with Bulgaria, Hungary and Romania, after providing that disputes concerning the interpretation or execution of the Treaties which had not been settled by direct negotiation should be referred t o the Three Heads of Mission, continue :

text: "Any such dispute not resolved by them within a period of two months shall, unless the parties to the dispute mutualiy agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member selected by mutuai a eement of the two parties from nationais of a third country. ~ K u l d the two parties fail to agree within a period of one month u on the appointment of the third member, the Secretary-General O f' the United Nations may be requested by either party to make the appointment.

text: OPIN. OF 18 VI1 50 (INTERPRETATION OF PEACE TREATIES)

text: 2. The decision of the majority of the members of the Commission shall be the decision of the Commission, and shall be accepted by the parties as definitive and binding." The question a t issue is whether the provision empowering the Secretary-General t o appoint the third member of the Commission ayplies t o the present case, in which one of the parties refuses t o appoint its own representative to the Commission. I t has been contended that the term "third member" is used here simply t o distinguish the neutral member from the two Commissioners appointed by the parties without implying that the third member can be appointed only when the two national Commissioners have already been appointed, and that therefore the mere fact of the failure of the parties, within the stipulated period, t o select the third member by mutual agreement satisfies the condition required for the appointment of the latter by the Secretary-General.

text: The Court considers that the text of the Treaties does not admit of this interpretation. While the text in its literal sense does not completely exclude the possibility of the appointment of the third member before the appointment of both national Commissioners it is nevertheless true that according to the natural and ordinary meaning of the terms it was intended that the appointment of both the national Commissioners should precede that of the third member. This clearly results from the sequence of the events contemplated by the article : appointment of a national Commissioner by each party ; selection of a third member by mutual agreement of the parties ; failing such agreement within a month, his appointment by the Secretary-General. Moreover, this is the normal order followed in the practice of arbitration, and in the absence of any express provision to the contrary there is no reason t o suppose that the parties wished to depart from it. The Secretary-General's power to appoint a third member 1s uerived solely from the agreement of the parties as expressed in the disputes clause of the Treaties; by its very nature such a clause must be strictly construed and can be applied only in the case expressly provided for therein. The case envisaged in the Treaties is exclusively that of the failure of the parties to agree upon the selection of a third member and by no means the much more serious case of a complete refusal of CO-operation by one of them, taking the form of refusing t o appoint its own Commissioner. The power conferred upon the Secretary-General t o help the parties out of the difficulty of agreeing upon a third member cannot be extended to the situation which now exists. Reference has been made for the purpose of justifying the reversal of the normal order of appointment, t o the possible advantage that might result, in certain circumstances, from the appointment of a third member before the appointment by the parties of their respective commissioners. Such a change in the normal sequence coiild only I O

text: OPIN. OF 18 VI1 50 (INTERPRETATION O F PEACE TREATIES) 2 2 8

text: be justified if it were shown by the attitude of the parties that they desired such a reversal in order to facilitate the constitution of the Commissions in accordance with the terms of the Treaties. But such is not the present case. The Governments of Bulgana, Hungary and Romania have from the beginning denied the very existence of a dispute, and have absolutely refused to take part, in any mannes whatever, in the procedure provided for in the disputes clauses of the Treaties. Even after the Court had given its Advisory Opinion of March 3oth, 1950, which declared that these three Governments were bound t o carry out the provisions of the Peace Treaties for the settlement of disputes, particularly the obligation to appoint their own Commissioners, these Governments have continued to adopt a purely negative attitude. In these circumstances, the appointment of a third member by the Secretary-General, instead of bringing about the constitution of a three member Commission such as the Treaties provide for, would result only in the constitution of a two-member Commission. A Commission consisting of two members is not the kind of commission for which the Treaties have provided. The opposition of the Commissioner of the only party represented could prevent a Commission so constituted from reaching any decision whatever. Such a Commission could only decide by unanimity, whereas the dispute clause provides that "the decision of the majority of the membess of the Commission shall be the decisisn of the Commission and shall be accepted by the parties as definitive and binding". Nor would the decisions of a Commission of two members, one of whom is appointed by one party only, have the same degree of moral authority as those of a three-member Commission. In every respect, the result would be contrary to the letter as well as the spirit of the Treaties.

text: I n short, the Secretary-General would be authosized to proceed to the appointment of a third member only if it were possible to constitute a Commission in conformity with the provisions of the Treaties. I n the present case, the refusal by the Governments of Bulgaria, Hungary and Romania to appoint their own Commissioners has made the constitution of such a Commission impossible and has deprived the appointment of the third member by the Secretary-General of every purpose. As the Court has declared in its Opinion of March 3oth, 1950, the Governments of Bulgaria, Hungary and Romania are under an obligation t o appoint their representatives to the Treaty Commissions, and it is clear that refusal to fulfil a treaty obligation involves international responsibility. Nevertheless, such a refusal cannot alter the conditions contemplated in the Treaties for the exercise by the Secretary-General of his power of appointment. These conditions are not present in this case, and their absence

text: II is not made good by the fact that it is due to the breach of a treaty obligation. The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties is one thing ; international responsibility is another. The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of Commission contemplated by the Treaties. I t is the duty of the Court t o interpret the Treaties, not to revise them.

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

text: I t has been pointed out that a n arbitration commission niay make a valid decision although the original number of its members, as fixed by the arbitration agreement, is later reduced by such circumstances as the withdrawal of one of the commissioners. These cases presuppose the initial validity of a commission, constituted in conformity with the will of the parties as expressed in the arbitration agreement, whereas the appointment of the third member by the Secretary-General in circumstances other than those contemplated in the Treaties raises precisely the question of the initial validity of the constitution of the Commission. In law, the two situations are clearly distinct and i t is impossible to argue from one to the other. Finally, it has been alleged that a negative answer by the Court to Question I I I would seriously jeopardize the future of the large number of arhitration clauses which have been drafted on the same model as that which appears in the Peace Treaties with Bulgaria, Hungary and ~ ~ o m a n i a . The ineffectiveness in the present case of the clauses dealing with the settlement of disputes does not permit such a generalization. An examination of the practice of arbitration shows that, whereas the draftsmen of arbitration conventions have very often takencare to provide for the consequences of the inability of the parties to agree on the appoir>trr.~nt of a thirà member, they have, apart from exceptional cases, refrained from anticipating a refusal by a party to appoint its own commissioner. The few Treaties containing express provisions for such a refusal indicate that the States which adopted this course felt the impossibility of remedying this situation simply by way of interpretation. In fact, the risk of such a possibility of a refusal is a small one, because normally each party has a direct interest in the appointment of its commissioner .and must in anv case be ~ r e s u m e d to observe its treaty obligations. That this wis not so i n i h e present case doeç not justify the Court in exceeding its judicial function on the pretext of remedying a default for the occurrence of which the Treaties have made no provision. Consequently, Question III must be answered in the negative. I t is therefore not necessary for the Court to consider Question IV, which requires an answer only in the event of an affirmative answer to the preceding Question.

text: For these reasons,

text: by eleven votes to two,

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

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

text: ( S i g n e d ) BASDEVANT, Presfdent .

text: ( S i g n e d ) E. HAMBRO, Registrar.

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

text: Judges READ and AZEVEDO, declaring that they are unable to concur in the Opinion of the Court, have availed themseives of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinion.

text: (Initialled) J . B.

text: DOCUMENTS TRANSMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE SECRETARY-GENERAL OF THE UNITED NATIONS IN ACCORDANCE WITH THE RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY ON 22 OCTOBER, 1949

text: CONTENTS

text: 1. RECORDS OF GENERAL ASSEMBLY, SECOND PART OF THIRD

text: SESSION

text: Inclusion of item in agenda.

text: Records of Proceedings.

text: Records of the General Committee, 58th and 59th meetings. Records of the General Assembly, 189th and 190th plenary meetings.

text: Inclusion of item in agenda. Documents.

text: Letter dated 16 March, 1949, from the permanent representative of Bolivia to the Secretary-General requesting the inclusion of an additional item in the agenda of the third reguiar session of the General Assembly Al820

text: Letter dated 19 March, 1949, from the Australian Mission to the United Nations addressed to the Secretary- General requesting the inclusion of an additional item in the agenda of the third re,dar session of the General Assembly Al821 Agenda of the third regular session of the General Assembly ; report of the General Committee A/829

text: [See paragraphs

text: 3 a and 3 b.] 38

text: [Note-See Fo&r 4 for: Telegram dated 4 Apràl, Ig49, from t h Governmnt of the Repcblic of Hungary

text: to the President of the General Assembly Al831

text: and

text: Telegram dated g Afwil, Ig4g. from the Government of the People's Republic of Bulgaria to the Secretory-General -41832 and Corr. 1.1

text: Ad hoc Political Committee.

text: Records of poceedings.

text: 34th meeting. 35th meeting. 36th meeting. 37th meeting. 38th meeting. 39th meeting. 40th meeting. 41st meeting.

text: Ad hoc Political Committee.

text: Documents.

text: Telegram dated 4 April, 1949, from the Govemment of the Republic of Hungary to the President of the General Assembly Al831 Telegram dated g April, 1949, from the Government of the People's Republic of Bulgaria to the Secretary-General Al832 and Corr. I Allocation of items on the agenda of the second part of the third session ; letter dated 13 April, 1949, from the President of the General Assembly to the Chairman of the Ad hoc Political Committee AIAC.24147

text: Cuba : draft resolution AlAC.24148 and Corr. I Cuba : amended draft resolution A/AC.z4/48/Rev. 2 Australia : draft resolution A/AC.24/50 Bolivia : draft resolution A/AC.24/51/Corr. I Australia : draft resolution A/AC.24/52 Chile : amendment to the Bolivian draft resolution (A/AC.z4751/Corr. 1) AlAC.24153

text: Colombia and Costa Rica : amendment to the Bolivian draft resolution (A/AC.z4/51/Corr. 1) AlAC.24154. Cuba and Australia : amendment to the Bolivian resolution iA/AC.z4/51/ Corr. 1) A/AC.z4/56 Telegram dated 23 April, 1949, from the Government of the People's Republic of Hungary to the Secretary-General A/AC.z4/57

text: Telegram dated 27 April, 1949, from the Govemment of the People's Republic of Bulgaria to the Secretary-General A/AC.z4/58

text: Report of the A d hoc Political Committee Al844

text: Plenary meetings of the General Assembly. Records of proceedings. zorst meeting. eoznd meeting. 203rd meeting.

text: Plenary meetings of the General Assembly.

text: Resolution 272 (III), adopted by the General Assembly, 30 April, 1949. [Note-See Folder 4 for :

text: Report of the Ad hoc Political Committee Al844.1

text: 11. RELEVANT EXCHANGES OF DIPLOMATIC CORRESPONDENCE COM- MUNICATED TO THE SECRETARY-GENERAL FOR CIRCULATION TO THE MEMBERS OF THE UNITED NATIONS

text: Folder 7.

text: Letter dated 20 September, 1949, from the representative of the United States of America to the Secretary- General (with annexes) Alg851Rev. I Letter dated 19 September, 1949, from the representative of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General (with annexes) AlggolRev. I Letter dated 19 November, 1949, from the representative of the United Kingdom of Great-Bntain and Northern Ireland to the Secretary- General of the United Nations (with annex) Letter dated 6 January, 1950, from the representative of the United Kingdom of Great Britain and Northern Ireland to the Secretary- General of the United Nations (with annexes) Note dated 6 January, 1950, from the representative of Canada to the Secretary-General of the United Nations (with annexes)

text: Letter dated 6 January, 1950, from the representative of the United States of America to the Secretary- General of the United Nations (with annexes) Letter dated 17 February, 1950, from the representative of Canada to the Secretary-General of the United Nations (with annex)

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

text: Letter dated 17 February, 1950, from the representative of United States of America to the Secretary-General of the United Nations (with annexes)

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

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

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

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

text: Folder 8.

text: Ind.usion of item in agenda. Records of proceedings.

text: Records of the General Committee, 65th [See pages 3 and 4, meeting paragraphs 71-73, and page 7,

text: paragrafihs 104

text: and 105.j

text: Records of the General Assembly, 224th [See fiages 18 and 19, plenary meeting paragraphs 2-10, and page 23, after paragraph 56.1

text: Folder g.

text: Inclusion of item in agenda. Documents. Supplementary list of items for the agenda of the fourth regular session ; items proposed by Australia A1948

text: [See paragraphs 9-12.]

text: Folder IO.

text: 7th meeting. 8th meeting. 9th meeting. 10th meeting. 11th meeting. 12th meeting. 13th meeting. 14th meeting. 15th meeting.

text: Ad hoc Political Committee.

text: Documents.

text: Letter dated 26 September, 1949, from the President of the General Assembly to the Chairman of the Ad hoc Political Committee A/hC.31/2 Bolivia, Canada and the United States of America : draft resolution A/AC.~I/L.I/R~V. I

text: OPIN. OF 18 VI1 50 (INTERPRETATION O F PEACE TREARIES) 261 Australia : amendment to the draft resolution proposed by Bolivia, Canada and the United States of America (A/AC.~I/L.I/R~V. 1) A/AC.3r/Id.z Brazil, Lebanon and the Netherlands : amendment to the draft resolution proposed by Bolivia, Canada and the United States of America (A/AC.~I/L.I/R~V. 1) A/AC.3r/L.3 Telegram dated 7 October, 1949, from the Government of the People's Republic of Romania to the Secretary- General AlAC.311L.4 Report of the A d hoc Political Committee A/1023

text: Folder 12.

text: Plenary meetings of the General Assembly. Records of froceedings. 234th meeting. 235th meeting.

text: Folder 13.

text: Plenary meetings of the General Assembly. Documents. Resolution adopted by the General Assembly, 22 October, 1949. [Note-See Folder II for :

text: Report of the Ad hoc Political Committee AI1oz3.1