identifier: ICJ 24 (Advisory opinion, 1955-06-07)

caseName: Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa

title: Advisory opinion of 7 June 1955 (including the text of the declaration of Judge Kojevnikov)

text: INTERNATIONAL COURT OF JUSTICE

text: 1955 1955

text: YEAR

text: J u n e ;th General List

text: NO. 24

text: VOTING PROCEDURE ON QUESTIONS RELATING TO REPORTS A N D PETITIONS CONCERNING THE TERRITORY OF SOUTH-WEST AFRICA

text: Hesolution 844 ( I X ) of General Assembly.- Rzrle F governing majority required for decisions relatitzg to reports and petitions concerning Territory of South-West Africa.-Article 18 of Charter.

text: Elucidation of Advisory O p i n i o n of J u l y th, 1950.-Limitations o n degree of supervision to be exercised over Mandated Territory and o n Procedure to be followed. "Degree of supervision" relates to nzeasures, not to vofing system.- E x t e n t of obligations of Mandatory Powrr not agected b y system adopted for voting.-Competence of General Assembly based o n Charter.- U n a n i m i t y rule under Covenant of League not within scofie of Question.

text: V o t i n g system not contemplated i n O p i n i o n of 1950.-Adoption of R u l e F by General Assembly w i t h i n bounds of legal possibility.-Cotnpatibility of R u l e F zvith O p i n i o n of 1950..

text: ADVISORY OPINION

text: Present : President HACKWORTH ; Vice-President BADAWI ; Judges

text: GÇERRERO, BASDEVANT, WINIARSKI, ZORICIC, KLAESTAD, READ, HSU MO, ARMAND-UGON, KOJEVNIKOV, Sir Muhammad ZAFRULLA KHAN, LAUTERPACHT, MORENO

text: QUINTANA, CORDOVA ; Registrar LOPEZ OLIVAN.

text: I n the matter of the Voting Procedure on Questions relating to Reports and Petitions concerning the T e m t o r y of South- West Africa.

text: composed a s above,

text: gives the following Advisory Opinion :

text: With a letter of December znd, 1954, filed in the Registry on December Gth, the Secretary-General of the United Nations transmitted t o the Court a certified true copy of a Resolution 904 (IX) of the General Assembly of the LTnited Nations of November 23rd, 1954, which waç in the following terms :

text: " The General Assembly, Having accepted, by resolution 449 A (V) of 13 December, 1950, the advisory opinion of the International Court of Justice of II July 1950 "th respect to South-West Africa,

text: Having regard, in particular, to the Court's opinion on the

text: general question, namely, 'that South-West Africa is a Temtory under the international Mandate assumed by the Union of South Africa on 17 December ~gzo', and to the Court's opinion on question ( a ) , namely, 'that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South- West Africa as well as the obligation to transmit petitions from the inhabitants of that Temtory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with. Article 7 of the Mandate and Article 37 of the Statute of the Court',

text: Having expressed, in resolution 749 A (VIII) of 28 November

text: 1953, its opinion 'that without United Nations supervision the inhabitants of the Territory are deprived of the international supervision envisaged by the Covenant of the League of Nations' and its belief 'that it would not fulfil its obligation towards the inhabitants of South-West Africa if it were not to assume the supervisory responsibilities with regard to the Temtory of South- West Africa which were formerly exercised by the League of Nations', Having regard to the opinion of the International Court of Justice that 'the degree of supervision to be exercised by the General

text: Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Natioris' and that 'these observations are particularly .applicable to annual reports and petitions', 5

text: Having adopted, by resolution 844 (IX) of II October 1954, a special rule F on the voting procedure to be followed by the General Assembly in taking decisions on questions relating to reports and petitions concerning the Territory of South-West Africa,

text: Having adopted this rule in a desire 'to apply, as far as possible, and pending the conclusion of an agreement. between the United Nations and the Union of South Africa, the procedure followed in that respect by the Council of the League of Nations', Considering that some elucidation of the advisory opinion is desirable, Requests the International Court of Justice to give an advisory opinion on the following questions : ( a ) 1s the following rule on the voting procedure to be followed by the General Assembly a correct interpretation of the advisory opinion of the International -Court of Justice of 11 J U ~ Y 19-50 : 'Decisions of the General Assembly on questions relating to reports and petitions concerning the Temtory of South- West Africa s h d be regarded as important questions within the meaning of Article 18, paragraph 2, of the Charter of the United Nations' ? ( b ) If this interpretation of the advisory opinion of the Court is not correct, what voting procedure should be followed by the General Assembly in taking decisions on questioliç relating to reports and petitions concerning the Temtory of South- West Africa ?"

text: I n accordance with Article 66, paragraph 1, of the Statute, notice was given on December gth, 1954, t o al1 States entitled t o appear before the Court of the letter of the Secretary-General of the United Nations and of the Resolution annexed thereto. The Court was not sitting and the President considered t h a t the States Members of the United Nations were likely t o be able t o furnish information on the questions referred t o the Court. Accordingly, the Registrar, in pursuance of Article 66, paragraph 2 , of the Statute, notified these States on December r6th, 1954, t h a t the Court would be prepared t o receive written statements from them within a time-limit fixed b y a.n Order of the same date a t March 15th, 1955. The Çovernments of the United States of Amenca, of the Republic of Poland, and of India availed themselves of this opportunity t o submit written stetements. The Govemments of Israel and of the Republic of China, while not submitting written statements, referred t o the v'iews expressed b y their representatives in the General Assembly when the question which had given rise t o the request for a n Advisory Opinion was there debated. Finally, the Government of 'k'ugoslavia indicated t h a t i t was of the opinion t h a t

text: 6 the question had already been dealt with exhaustively by an Advisory Opinion of the Court on the question of the Territory of South- West Africa. In accordance with Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations transmitted to the Court the documents likely to throw light upon the question. He also submitted an Introductory Note commenting on these documents. The States Members of the IJnited Nations were notified on March 25th, 1955, that the oral proceedings would begin on May ~ o t h , 1955 ; at the same time they were requested to inform the Registrar, not later than April 15th, 1955, whether they intended to submit oral statements. No State having requested to be heard, the Court did not hold a public hearing.

text: By Resolution 904 (IX) of Xovember q r d , 1954, the General Assembl y "Requests the International Court of Justice to give an advisory opinion on the following questions : (a) 1s the following rule on the voting procedure to be followed by the General Assembly a correct interpretation of the advisory opinion of the International Court of Justice of 11 J U ~ Y 1950 : 'Decisions of the General Assembly on questions relating to reports and petitions concerning the Temtory of South- West Afnca shall be regarded as important questions within the meaning of Article 18, paragraph 2 , of the Charter of the United Nations' ? (b) If this iuterpretation of the advisory opinion of the Court is not correct, what voting procedure should be followed by the General Assembly in taking decisions on questions relating to reports and petitions concerning the Temtory of South-West Africa ?" The rule quoted in this Request for an Advisory Opinion is Rule F, which is set out in Resolution 844 (IX) adopted by the General Assembly on October ~ r t h , 1954. This Rule prescnbes a voting system to be followed by the General Assenibly. The General Assembly asks, in the first place, whether this Rule is a correct interpretation of the Advisory Opinion given by the Court on July th, 1950. This is the first question to be considered. The second question anses only in the event that the Court expresses the opinion that Rule F is not a correct interpretation of the Advisorv Opinion of 1950. By Resolution 449 (V) A of December 13th, 1950, the Opinion of 1950 was adopted by the General Assembly as the basis for the supervision of the administration of the mandated Territory of

text: Soilth-West Africa. There followed prolonged and unfruitful negotiations betlveen representatives of the Government of the Union of South Africa and a n ad hoc Comrlittee of the General Assembl y. At the Eighth Session, t h e General Assembly, b y Resolution 749 (VIII) of November z8th, 1953, established a Committee on South-West Africa. I t was requested t o :

text: "('a) Examine, within the scope of the Questionnaire, adopted by the Permanent Mandates Commission of the League of Nàtions in 1926, such information and documentation as may be available in respect of the Temtory of South-West Africa; (b) examine, as far as possible, in accordance with the procedure of the former Mandates System, reports and petitions which may be submitted to the Committee or to the Secretary-General ;

text: ( c ) transmit to the General Assembly a report concerning conditions in the Temtory taking into account, as far as possible, the scope of the reports of the Pennanent Mandates Commission of the League of Nations ; ( d ) prepare, for the consideration of the General Assembly, a procedure for the examination of reports and petitions which tshould conform as far as possible to the procedure followed in this respect by the Assembly, the Council and the Permanent Mandates Commission of the League of Nations."

text: Acting under this authority, the Committee on South-West Africa prepared two sets of rules. One set of rules relates t o its own procedure, and t o the examination of reports, petitions and other information concerning the Territory of South-West Africa. The procedure was designed to be analogous t o that which was followed by the Permanent Mandates Commission under the League of Nations. Provision was made for obtaining the views of the Mandatory Power and for the submission of reports and observations bj. the Committee t o the General Assembly. The other set of rules prepared by the Committee prescribed the procedure t o be followed by the General Assembly in its consideration of the reports and observations of the Committee on South-West Africa. The rules covered such matters a s reports, petitions, and private meetings, as well a s the way in which decisions of the General Assembly with regard t o reports and petitions were t o be made, the last-mentioned matter being dealt with in Rule F. I t appears that Rule F is part of a regime established b y Resolutions of the General Assembly of November z8th, 1953, and October ~ r t h , 1954, in which the expressed intention of the General Assembly was t o conform t o the Opinion of 195~. The scope of Question ( a ) is thus limited b y the wording used and b y the reference t o the General Assembly's acceptance of the Opinion previously given b y the Court. I t is thfrefore essential 8 that the Court should keep within the bounds of the question put to it by the General Assembly.

text: I n the question submitted to the Court there is a slight difference between the wording of the English and the French texts. The French version seems to express more precisely the intention of the General Assembly in submitting the matter to the Court for its a Opinion. It asks whether Rule F corresponds to a correct interpretation of the previous Opinion. I t refers generally to the previous Opinion, but the debates in the Fonrth Committee and in the General Assembly indicate that the latter was primarily concerned with the question whether the rule as to the system of voting corresponds to a correct interpretation of the following passage :

text: "The degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System, and should conform .as far as possible to the procedure foliowed in this respect by the Council of the League of Nations."

text: At this stage consideration will be given to the first part of this passage, namely, the statement that "The degree of supervision to be exercised by the General Assembly should not therefore exceed

text: the Court is to establish the true meaning of this statement. The question is whether this statement may properly be construed as including the system of voting to be followed by the General Assembly. The function of supervision exercised by the General Assembly generaliy takes the form of action based on the reports and observations of the Committee on South:West Africa; whose functions are analogous to those exercised by the Permanent Mandates Commission. The words "the degree of supervision" relate to the extent of the substantive supervision thus exercised, and not to the manner in which the collective will of the General Assembly is expressed. Accordingly, these words, if given their ordinary and natural meaning, should not be interpreted as relating to procedural matters. They relate to the measure and means of supervision. They comprise the means employed by the supervising authority in obtaining adequate information regarding the administration of the Territory and the methods adopted for evaluating such information, maintaining working relations with the Mandatory, and otherwise exercising nor.mal and customary supervisory functions. The statement that the degree of supervision to be exercised by the General Assembly should not exceed that which was applied under the Mandates System means that the General Assembly should not adopt such methods of supervision or impose such conditions on the Mandatory as are inconsistent with the terms of the Mandate or with a proper degree of supervision measured by the standard and the methods applied by the Council of the League of Nations.

text: Consequently, the action of the General Assembly in adopting Rule F, which prescribes the two-thirds majority xule, cannot be regarded as relevant to the "degree of supervision". It follows that this Rule cannot be considered as instituting a greater degree of supervision than that which was envisaged by the previous Opinion of the Court.

text: This interpretation of the words used is confirmed by an examination of the circumstances which led to their use. The Court, in the previous Opinion, was answering the question : "Does the Union of Soiith Africa continue t o have international obligations under the hiandate for South-West Africa acd, if so, what are those obligations ) " I t was dealing with two kinds of international obligations assumed by the Union of South Africa undt2r the Mandate. The first kind of obligation was directly related to the administration of the Territory and corresponded to the sacred trust of civilitation refered to in Article 22 of the Covenant. The Court founc! that these obligations did not iapse on the dissolution of the 1,eague of Nations. The second kind of obligations related to the supervision of the adniinistratiori of the nandatrd Territory by the League. The Court, taking into account the F)esoliition of the Asembly of the League o i Satiolis of April 18th, 1946, and the provisior~s of Articles I O and 80 of the Charter, reco,pized that the General Assembly was legally qualified to exercise the sup~rvisory f ~ n c t i m i s whicil I?;d previously been exerciscd by the Council of the League. I t was rieceçrary for the purpose of acfining the international obligations of the Union to indicate the limits within which i t was subject t o the exercise of supervision by the General Assembly. In order to indicate those limirs, it was necessary t o deal with the problem presented by methods of supervision and the scope of their appiicaticn The General Assembly was competent, under the C h a ~ t e r , to devise methods of supervision and to regulate, within prescribec! limitations, the scope of their application. These were matters in which the obligations could be subjtcted t o precise and objective determination, and it was neceçsar'i- indicate this in a clear and iinequivocal manner. This was done 11. en it waz sdiif in the previous Opinion that : "The degree of su: *:rvlsion 10 be exercised by the General Assenlblv shoiild iiot ' ,lr. îuY: esce\:i that which applied under the Skirida? , i.~!clt,:i

text: On the other hand, in marking out those limits, the Court did not need to deal with the system of voting. I n recognizing that the competence of the General Assembly to exercise its supervisory functions was based on the Charter, the Court also recognized implicitly that decisions relating to the exercise of such functions must be taken in accordance with the relevant provisions of the Charter, that is, the provisions of Article 18. If the Court had intended that the limits to the degree of supervision should be understood to include the maintenance of the system of voting followed by the Council of the League of Nations, it would have been contradicting itself and running counter to the provisions of the Charter. I t follows that the statement that "The degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System" cannot be interpreted as extending to the voting system of the General Assembly. Accordingly, the Court finds that the statement in the Opinion of July co th, 1950, that "The degree of supervision to be exercised by the General Assemblj~ should not therefore exceed that which applied under the Mandates System", must be interpreted as relating to substantive matters, and as not including or relating to the system of voting followed by the Council of the League of Nations.

text: I n the course of the proceedings in the General Assembly and Committees of the United Nations, ié waç contended by representatives of the Union of South Africa that Rule F would not correspond to a correct interpretation of the previous Opinion. I t was argued that the rule of unanimity governed the proceedings in the Council of the League of Nations, in which the mandatory Power was entitled to participate and vote ; and that Rule F, by substituting a two-thirds majority rule, would lead to a degree of supervision exceeding that which applied under the Mandates System. These contentions were questioned by representatives of other Govemments and also in the written statements submitted to the Court in the present proceedings. I n view of the finding of the Court that the statement in the Opinion of 1950 that "The degree of supervision to be esercised by the General Assembly should not therefore exceed that which applied under the Mandates System" does not include or relate to the system of voting, it is unnecessary to deal with t?ie issues raised by these contentions or to examine the extent and scope of the operation of the mIe of unanimity under the C o i a a n t of the League of Nations.

text: The Court will now consider whether Rule F is in accord with the statement in the Opinion of 1950, that the supervision t o be exercised by the General Assembly "should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations". While, as indicated above, the statement regarding the degree of supervision to be exercised by the General Assembly over the Mandate of South-West Africa, relates to substantive matters, the statement requiring conformity "as far as possible" with the procedure followed in the matter of supervision by the Council of the League of Nations, relates to the way in which supervision is to be exercised, a matter which is procedural in character. Thus, both substance and procedure are dealt with in the passage in question and both relate to the exercise of supervision. The word "procedure" there used must be understood as refemng t o those procedural steps whereby supervision is to be effected.

text: The voting system of the General Assembly was not in contemplation when the Court, in its Opinion of 1950, stated that "supervision should conform as far as possible to the procedure foliowed in this respect by the Council of the League of Nations". The constitution of an organ usually prescribes the method of voting by which the organ arrives a t its decisions. The voting system is related to the composition and functions of the organ. I t forms one of the characteristics of the constitution of the organ. Taking decisions by a two-thirds majority vote or by a simple majority vote is one of the distinguishing features of the General Assembly, while the unanimity rule was one of the distinguishing features of the Council of the League of Nations. These two systems are characteristic of different organs, and one system cannot be substituted for the other without constitutional amendment. To transplant upon the General Assembly the unanimity rule of the Council of the League would not be simply the introduction of a procedure, but would amount to a disregard of one of the characteristics of the General Assembly. Consequently the question of conformity of the voting system of the General Assembly with that of the Council of the League of Nations presents insurmountable difficulties of a juridical nature. For these reasons, the voting system of the General Assembly must be considered as not being included in the procedure which, according to the previous Opinion of the Court, the General Assembly should follow in exercising its supervisory functions.

text: There is, however, another aspect of this question. Rule F is contained in a group of six special rules, which were adopted b y the General Assembly in Resolution 844 (IX) of October t th, 1954. They were designed to apply "as far as possible, and pending the conclusion of an agreement between the United Nations and the Union of South Africa, the procedure followed in that respect by the Council of the League of Nations". I t seems to be clear that, both in adopting Rule F and in referring Question (a) to the Court, the General Assembly was proceeding upon the assumption that the word "procedure", as used in the second part of the passage in question, includes the voting system. I t is also necessary to examine the question on the basis of that assumption. Looking a t the matter from that point of view, there is equally no incompatibility between Rule F and the previous Opinion. I t is to be recalled that the Court, in its previous Opinion, stated that "The competence of the General Assembly of the United Nations to exercise such supervision and to receive and examine reports is derived from the provisions of Article IO of the Charter, which authorizes the General Assembly to discuss any questions or any matters within the scope of the Charter and to make recommendations on these questions or matters to the Members of the United Nations". Thus, the authority of the General Assembly to exercise supervision over the administration of South-West Africa as a mandated Territory is based on the provisions of the Charter. While, in exercising that supervision, the General Assembly should not deviate from the Mandate, its authority to take decisions in order to effect such supervision is derived from its own constitution.

text: Such being the case, it follows that the General Assembly, in adopting a method of reaching decisions in respect of the annual reports and petitions concerning South-West Africa should base itself exclusively on the Charter. Article 18 of the Charter authorizes the General Assembly to decide whether decisions of this nature involve "important questions" or "other questions". The General Assembly has concluded that decisions by it on questions relating to reports and petitions concerning the Territory of South-West Africa shall be regarded as decisions on important questions to which the two-thirds majority rule should apply. I t is from the Charter that the General Assembly derives its competence to exercise its supervisory functions ; and it is within the framework of the Charter that the General Assembly must find the rules governing the making of its decisions in connection with those functions. I t would be legally impossible for the General Assembly, on the one hand, to rely on the Charter in receiving and examining reports and petitions concerning South-West Africa, and, on the other hand, to reach decisions relating to these reports and petitions in accordance with a votingsystem entirely alien to that prescribed by the Charter. When the Court stated in its previous Opinion that in exe~cising its supervisory functions the General Assembly should conform

text: "as far as possible to the procedure followed in this respect bythe Council of the League of Nations", it was indicating that in the nature of things the General Assembly, operating under an instrument different from that which governed the Council of the League of Nations, would not be able to follow precisely the same procedures as were followed by the Council. Consequently, the expression "as far as possible" was designed to allow for adjustments and modifications necessitated by legal or practical considerations.

text: In the matter of determining how to take decisions relating to reports and petitions concerning the Temtory of South-West Africa, there was but one course open to the General Assembly. I t had before it a text, Article 18 of the Charter, which prescribes the methods for taking decisions. The Opinion of 1950 Ieft the General Assembly with Article 18 of the Charter as the sole legal basis for the voting system applicable to decisions in connection with its supervisory functions. I t was on that b a i s that Rule F was adopted. In adopting that. Rule, the General Assembly acted within the bounds of legal possibility.

text: There is thus no incompatibility between Rule F and the Opinion of 1950 in which the Court stated that the supervision to be exercised by the General Assembly should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations.

text: The Court therefore considers that Rule F, recited in Question

text: ( a ) of Resolution go4 (IX) of the General Assembly of November q r d , 1954, is in accord with the passage contained in the Court's previous Opinion, namely, that "The degree of supervision to be

text: which applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations". Accordingly, the Court concludes that Rule F corresponds to a correct interpretation of its Advisory Opinion of 1950.

text: Question (a) having been answered in the affirmative, it is not

text: necessary to consider Question ( b ) .

text: For these reasons,

text: with regard to Question (a) :

text: "1s the following rule on the voting procedure to be followed by the General Assembly a correct interpretation of the advisory opinion of the International Court of Justice of II July 1950 : 'Decisions of the General Assembly on questions relating to reports and petitions concerning the Territory of South- West Africa shall be regarded as important questions within the meaning of Article 18, paragraph 2 , of the Charter of the United Nations' ?"

text: that the said rule is a correct interpretation of the Advisory Opinion of J U ~ Y 11th, 1950.

text: Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this seventh day of June, one thousand nine hundred and fifty-five, in two copies, one of which will 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 ) Green H. HACKWORTH,

text: President.

text: ( S i g n e d ) J . LOPEZ OLIVAN,

text: Registrar.

text: Judge KOJEVNIKOV declares that he subscribes to the Opinion which the Court has given on Question (a) asked by the General Assembly of the United Nations on November 23rd, 1954. He would, however, like to indicate that the fact that he has voted in favour of the final part of the Advisory Opinion does not mean that he agrees with al1 that has been said, or with the reasoning advanced in al1 respects, nor that he acknowledges the correctness of the whole of the Advisory Opinion of July ~ r t h , 1950. He does not share the view, expressed in the Court's Advisory Opinion of 1950, that the provisions of Chapter XII of the Charter do not impose a legal obligation on the Union of South Africa to

text: 15 place the Territory under the Trusteeship System. On the contrary, he considers that the Charter of the United Nations imposes on the Union of South Africa the obligation tc. place the Temtory of South-West Afnca under the Trusteeship System.

text: Judges BASDEVANT, KLAESTAD and LAUTERPACHT, availing themselves of the xight conferred on them by Articles 57 and 68 of the Statute, append to the Opinion of the Court statements of their separate opinions.

text: (Initialled) G . H . H . (Initialled) J . L. O.


court: icj

doctype: dom

caseName: Certain Norwegian Loans (France v. Norway)

decisionType: judgment

publisher: International Court of Justice

reportsCitation: I.C.J. Reports 1957, p. 9

title: Judgment of 6 July 1957

text: INTERNATIONAL COURT O F JGSTICE

type: rubrik

text: 1957 July 6th General List No. 29

type: stycke

text: YEAR 1957

text: July 6% 1957

text: CASE OF CERTAIN NORWEGIAN LOANS

text: (FRANCE v. NORWAY)

text: In.ternatio+zal loavzs, question of gold c1aztse.-Obligatiol~s oj boruowing State.-Preliminauy 0bjectio1zs.--\i'ît+zici9al law, i~zternational law.- Second Hagzte Co~zvention, 19o7.-Comp2~~lsovy juvisdiction.-Declarations under Article 36, PavaprapJz 2 , of Statute ; resevaation of national jurisdiction as understood by declarant State.-Eflect o f condition of ~rciprocity.-Cowzpetejzce of Court.

text: Present : President HACKWORTH ; Vice-P~esident BADAWI ; Judges

text: GUERRERO, BASDEVSNT, WISIARSKI, ZORI?I~, KL~~ESTAD, READ, ARMASD-LTGos, KOJEVNIKOV, Sir Muhammad ZAFRULLA KHAN, Sir Hersch LAUTERPXCHT, MORENO QUINTANA, COR DOS..^, WELLISGTON KOO ; Regist~ar LOPEZ OLIVAN.

text: In the case of Certain Norwegian Loans,

text: between

text: the French Republic, represented by M. André Gros, Professor of the Faculties of Law, Legal Adviser t o the Ministry for Foreign Affairs, as Agent, assisted by : M. Paul Reuter, Professor of the Faculty of Law of Paris, Assistant Legal Adviser to the Ministry for Foreign Affairs, as Counsel, Me. Marcel Poignard, of the Paris Bar, former Bâtonnier, as Advocate, and by : M. Claude Chayet, Legal Adviser in the Ministry for Foreign Aff airs, M. Robert Monod, Admi~zistratez*,~ civil in the Ministry of Finance,

text: M. J. J. de Bresson, Procz~rez~r de la Ré$zhbZiqzte, detached to the Ministry for Foreign Affairs, Me. Henri Monneray, of the Bar of the Paris Court of Appeal, as Expert Advisers,

text: and

text: the Kingdom of Norway, represen ted by : M. Sven Arntzen, Advocate a t the Supreme Court of Norway, as Agent and Advocate, 11. Lars J. Jorstad, Ambassador of Sorway at The Hague, as Agent, assisted by : M. Maurice Bourquin, Professor at the Cniversity of Geneva and at the Graduate Institute of International Studies, 31. Jens Evensen, Advocate at the Supreine Court of Norway, as Advocates, M. Frede Castberg, Rector of the Gniversity of Oslo, M. Johannes Andenaes, Professor at the University of Oslo, 31. Bredo Stabell, Director a t the Ministry for Foreign Affairs, M. Pierre Lalive, Professor at the Cniversity of Geneva, as Expert Advisers,

text: 5 and by M. Einar Lochen, Chief of Division in the Ministry for Foreign Affairs, as Secretary,

text: composed as above, delivers the jollowing Judg~nefzt :

text: I n a Ietter of July 6th, 1955, filed in the Registry on the same day, the Ambassador of France to the Netherlands fonvarded a letter from the Agent of the Government of the French Republic dated July 5th, 1955, transmitting an Application instituting Proceedings in a dispute with the Government of the Kingdom of Nonvay concerning the payment of various Norwegian Loans issued in France. At the same time, the Ambassador of France notified to the Registry the appointment of Professor Gros as Agent of the French Govemment in the case. The Application thus filed in the Registry on July 6th, 1955, expressly refers to Article 36, paragraph 2, of the Statute of the Court and to the acceptance of the compulsory jurisdiction of the International Court of Justice by the Kingdom of Norway on November 16th, 1946, and by the French Republic on March ~ s t , 1949. I t refers to and enurnerates certain loans floated by the Kingdom of Nonvay, by the Mortgage Bank of the Kingdom of Norway and by the Small Holding and Workers' Housing Bank; it relies upon the fact that bonds of these loans are in the hands of French holders; it alleges that the said loans contain a gold clause ; and it is designed to request the Court to determine the manner in which the borrower should discharge the substance of his debt. Pursuant to Article 40, paragraph 2, of the Statute, the Application was communicated to the Government of the Kingdom of

text: Norway and, pursuant to paragraph 3 of the same Article, other

text: Members of the United Nations as well as non-member States entitled to appear before the Court were notified of it. By Order of September ~ g t h , 1955, the President, taking account of an agreement between the Parties, fixed the time-limits for the filing of the Memorial and Counter-Nemorial. On the date of the expiry of the second of these time-limits, the Government of the Kingdom of Norway filed a document setting out certain preliminary objections designed, on various grounds stated therein, to obtain a finding from the Court that the Application was inadmissible. By Order of April zqth, 1956, the Court, noting that the proceedings on the merits were suspended by virtue of the provisions of Article 62, paragraph 3, of the Rules of Court, fixed June 4th, 1956, as

text: the time-limit for the preçentation by the Government of the French 6

text: S O R W E G I A N LOANS (JUDGNENT O F J U L Y 6th, 1957) 1 2

text: Republic of a written statement of its Observations and Submissions in regard to the Preliminary Objections. In notifying the Agents of this decision, the Registrar informed them that it was the Court's intention to open the oral hearings on June 25th, 1956. On May 15th, 1956, the Agent of the Govemment of the Kingdom of Norway acquainted the Court with the desire of his Government that, because of unforeseen circumstances, the oral proceedings should be postponed until the autumn. Consequently the Court, after ascertaining the views of the Parties and having decided to postpone the opening of the oral proceedings, by Order of May zgth, 1956, extended to August y s t , 1956, the time-limit for the filing, by the French Government, of its Observations and Submissions on the Preliminary Objections raised by the Nonvegian Governnlent. Within this time-limit, the French Government presented its Observations and Submissions on the Preliminary Objections. Whilst stating the grounds on which it requested the Court net to uphold the Objections, it asked the Court to join the Preliminary Objections to the Merits. The Court decided, on September z ~ s t , 1956, to open the oral hearings on the Preliminary Objections on October 15th, 1956, and the Agents of the Parties were advised of this decision on the same date. In a letter of the same date, which was handed to the Registrar on September zznd, the Agent of the Government of the Kingdom of Norway, noting that, in its Observations on the Preliminary Objections, the Government of the French Republic had asked that it might please the Court to join the Objections to the merits, stated that his Government, whilst maintaining in their entirety the Objections which it had raised, did not consider that it should object to the joinder of these Objections to the merits. By Order of September 28th, 1956, the Court, considering that there was no objection to taking into account the understanding thus reached, joined the Objections to the merits and, after ascertaining the views of the Parties, fixed time-limits for the filing of the further pleadings, the last of these time-limits expiring on ApriIz5th, 1957. The Parties having respectively filed their CoTinter- Memorial, Reply and Rejoinder within the time-liinits so fixed, the case was ready for fiearing on the last-named date. In the course of hearings held on May 13th, q t h , 15th, 17th, zoth, z ~ s t , zznd, z3rd, zqth, 25th and 28th, 1957, the Court heard the oral arguments and replies of M. André Gros and Me. Marcel Poignard, on behalf of the Government of the French Republic, and of M. Sven Arntzen, M. Maurice Bourquin and 31. Jens Evensen, on behalf of the Government of the Kingdom of Norway. During the written and oral proceedings, the foilowing Submissions were presented by the Parties:

text: On behalf of the French Government, in the Application:

text: "May it please the Court : To take note that for the purpose of al1 notifications and communications relating to the present case, the Agent of the Government of the French Republic selects for his address for service the French Embassy a t The Hague; To notify the present Application, in accordance with Article 40. paragraph 2, of the Statute of the Court, to the Government of the Kingdom of Norway; To adjudge and declare, whether the Government of the Kingdom of Norway appears or not, and after such time-limits as the Court may fix in the absence of an agreement between the Parties: That the international loans issued by the Kingdom of Norway in 1896 (3% gold), 1900 (33% gold), 1902 (33% gold), 1903 (3% gold), 1904 (32% gold), 1905 (33% gold), the international loans issued by the Mortgage Bank of the Kingdom of Norway, 34% gold 1885-189S, 1902, 1905, 1907, 1909 and 4% gold 1900, the international loan issued by the Small Holding and Workers' Housing Bank 33% gold in 1904, stipulate in gold the amount of the borrower's obligation for the service of coupons and the redemption of bonds; And that the borrower can only discharge the substance of his debt by the payment of the gold value of the coupons on the aate of payment and of the gold value of the redeemed bonds on the date of repayment."

text: On behalf of the French Government, in the Memorial: "The Government of the French Republic therefore maintains the submissions filed in its Application of July 6th, I95j, and requests the Court to adjudge and declare: That the international loans issued by the Kingdom of Norway in 1896 (3% gold), 1900 (34% g ~ l d ) , 1902 (34% gold), 1903 (3% g ~ l d ) , 1904 (3-S-X gold), 1905 (33% gold), the international loans issued by the Mortgage Bank of the Kingdom of Norway, 3&% gold 188 j-189b 1902, 19oj, 1907, 1909 and 4% gold 1900, the international loaii issued by the Small Holding and Workers' Housing Bank 33% gold . in 1904, stipulate in gold the amount of the borrower's obligation for the service of coupons and the redemption of bonds;

text: And that the borrower must discharge the substance of his debt by the payment of the gold value of the coupons on the date oi payment and of the gold value of the redeemecl bonds on the datof repayment."

text: On behalf of the Korn-egian Governmeni, in the Preliminar!- Objections: "\T'hereas : I. The subject of the dispute, as defined in th~4pplication of the French Govern~nent of July 6th, 1955, is within the domai~: of municipal law and not of international law, whereas the compulsor~juiisdiction of the Court in relation to the Parties inr-olved isrestricted. by their Declarations of XOL-ember 16th. 1q46, and hInrch 1st' 1449. to disputes concerning iiiterfiational lan-;

text: NORWEGIAK LOANS (JUDGMEKT OF J U L Y 6th, 1957) 14

text: The 'facts' or 'situations' in respect of which the dispute has arisen are prior to the Declaration by which the French Gouernment accepted the compulsory jurisdiction of the Court, this dispute is therefore excluded from the undertaking given by France and, by virtue of reciprocity, from the undertaking given by Norway vis-dvis France ;

text: Asregards that part of the daim which relates to the bond certificates issued by the Mortgage Bank of Norway and by the Norwegian Small Holding and Workers' Housing Bank, these two Banks have a legal personality distinct from that of the Norwegian State; proceedings can therefore not be instituted against the latter in its capacity as the borrower; whereas, moreover, the jurisdiction of the Court is limited to disputes between States;

text: The holders of bond certificates on whose behalf the French Government considers itself entitled to institute international proceedings have not previously exhausted the local remedies, May it please the Court to adjudge and declare that the claim put forward by the Application of the French Government of July 6th, I g j j , is not admissible." O n behalf of t h e French Government, in t h e Observations a n d Submissions on t h e Preliminary Objections : "For these reasons, and subject to the subsequent presentation of any evidence or argument, May it please the Court t o join to the merits the 'Preliminary Objections' raised by the Royal Nonvegian Government." O n behalf of t h e Norwegian Government, in t h e Counter-Memorial: "On the Preliminary Objections : Having regard to the fact that the Norwegian Government maintains Preliminary Objections Nos. I, 3 and 4 raised in the document submitted to the Court on April zoth, 1956, May it please the Court to adjudge and declare that the claim submitted by the Application of the French Government of July Gth, 1955, is not admissible. On the Merits : Having regard to the fact that the claim of the French Government is unfounded, May it please the Court to dismiss the claim of the French Government." O n behalf of t h e French Government, in t h e Reply : "On the question of admissibility : May it please the Court to place on record the abandonment by the Royal Government of Norway of its second Preliminary Objection, to dismiss the Preliminary Objections of the Royal Government of Nonvay Nos. 1, 3 and 4, to adjudge and declare that the claim put fonvard in the Application of the French Government of July 6th, 1955, is admissible.

text: On the Merits:

text: May it please the Court to uphold the submissions of the Government of the French Republic set out in its Application of July 6th, 1955."

text: On behalf of the Norwegian Govemment, in the Rejoinder: "The Norwegian Government maintains the Submissions of its Counter-Memorial of December zoth, 1956."

text: On behalf of the French Government, Submissions stated at t h e hearing of May I j t h , 1957, and filed on the same d a y : "The Government of the French Republic requests the Court t o adjudge and declare :

text: On Jurisdiction : That the claim of the Government of the French Republic, which has adopted the cause of its nationals who are holders of bond certificates of the Norwegian loans in question, constitutes a case of the recovery of contract debts within the meaning of Article I of the Second Hague Convention of October 18th, 1907 ; that this claim, not having been settled by diplomatic means, has given rise to a legal dispute of an international character between the two States; That the two States, by their acceptance of the compulsory jurisdiction of the International Court of Justice, have recognized the competence of the Court in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation; That the recovery of a debt due under an international loan, claimed from the Government of the debtor State by the Government which has adopted the cause of its nationals who are holders of bond certificates, raises an issue which, within the meaning of Article 36, paragraph 2, sub-paragraphs (b) and (c), falls within the competence of the Court by virtue of the acceptance of both Parties; That the dispute may be brought before the Court without the need for the exhaustion of local remedies since it has not been shown that such remedies could be effectua].

text: On the Merits: That the loans which constitute the subject-matter of the Application of the Government of the French Republic are international loans and that it follows from the nature of the bearer bonds that in respect of al1 foreign holders the substance of the debt is the same and that payments to foreign holders of an identical certificate must be made without any discrimination; 1 O

text: That undertakings as to the amount of a debt contracted by a State with foreign nationals, containing express conditions as to performance, cannot be unilaterally modified by that State without negotiation with the holders, with the State which has adopted the cause of its nationals, or without arbitration as to the financial capacity of the debtor State to fulfd its obligations; That in these circumstances, and without passing upon the financial adjustment of payments which the Govemrnent of the French Republic has declared itself ready to study with the Government of the Kingdom of Norway, the claim of the Government of the French Republic should be held to be well-founded;

text: That the Kingdom of Norway having expressly promised and guaranteed payment in gold value of the sums due in performance of its obligations under the various loans in issue, the debtor cannot validly discharge this obligation except by payments as they faIl due in gold value."

text: O n behalf of the Norwegian Government, Submissions stated at the hearing of May q r d , 1957, a n d filed on t h e same d a y : "On the Preliminary Objections

text: Whereas : I. The subject of the dispute, as defined in the Application, is within the domain of municipal law and not of international law, whereas the compulsory jurisdiction of the Court in relation to the Parties involved is restricted, by their Declarations of November 16th, 1946, and March ~ s t , 1949, to disputes concerninginternational law ; 2. As regards that part of the claim which relates to the bond certificatesissuedby the MortgageBank of Norway and theNonvegian Small Holding and Workers' Housing Bank, these two Banks have a legal personality distinct from that of the Norwegian State; proceedings can therefore not be institued against the latter in its capacity as the borrower; whereas moreover the jurisdiction of the Court is limited to disputes between States; 3. The holders of bond certificates for whose protection the French Government considers itself entitled to institute international proceedings have not previously exhausted the local remedies,

text: May it please the Court, rejecting al1 submissions to the contrary, to adjudge and declare that the claim put forward by the Application of the French Government of July 6th, 1955, is not admissible. On the Ments:

text: Whereas the claim of the French Government is unfounded,

text: XORWEGIAN LOANS (JVDGSIEXT 01; J U L Y 6th, 1957) Ii;

text: May it please the Court, rejecting al1 submissions to the contrary, to dismiss the claim of the French Govemment."

text: Certain objections having been raised b y the Agent of the Norwegian Government t o the tenor a n d admissibility of the Submissions filed by the Agent of the French Government on May 15th, 1957, the Agent of the French Government made certain alterations in them a t the hearing of May a j t h , 1957, and filed them on the same d a y in the following form:

text: "The Government of the French Republic requests the Court t o adjudge and declare : On Jurisdiction : I. That the claim of the Government of the French Republic, which has adopted the cause of its nationals who are holders of bond certificates of the Norwegian loans in question, constitutes a case of the recovery of contract debts within the meaning of Article I of the Second Hague Convention of October 18th, 1907; that this claim, not having been settled by diplomatic means, has given rise to a legal dispute of an international character between the two States; 2. That the two States, by their acceptance of the compulsory jurisdiction of the International Court of Justice, have recognized the competence of the Court in al1 legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation; 3. That the recovery of the debts due under the loans in question, claimed from the Government of the Norwegian State by the French Government which has adopted the cause of its nationals who are holders of bond certificates, raises an issue which, within the meaning of Article 36, paragraph 2 , sub-paragraphs (b) and (c), falls within the competence of the Court by virtue of the acceptance of both Parties; 4. That the dispute may be brought before the Court without the need for the eshaustion of local remedies since it has not been shown that such remedies could be effectual. On the Merits: I. That the loans which constitute the subject-matter of the _Application of the Government of the French Republic are international loans and that it follows from the nature of the bearer bonds that in respect of al1 foreign holders the substance of the debt is the same and that payments to foreign holders of an identical certificate must be made without any discrimination; 2. That the said loans contain an undertaking to pay in gold value interest and amounts due on redemption of the bonds;

text: 3. That undertakings as to the amount of the debts contracted under the said loans by the Xorwegian State with French nationals,

text: NORWEGISN LOANS ( J U D G X ~ E N T O F J U L Y 6th, 1957) 18

text: containing express conditions as to performance, cannot be unilaterally modified by that State without negotiation with the holders, with the French State which has adopted the cause of its nationals, or without arbitration as to the financial capacity of the debtor State to fulfil its obligations; 4. That in these circumstances, and without passing upon the financial adjustment of payments which the Government of the French Republic has declared itself ready to study with the Government of the Kingdom of Nonvay, the claim of the Government of the French Republic should be held to be well-founded;

text: That the Kingdom of Norway having expressly promised and guaranteed payment in gold value of the sums due in performance of its obligations under the various loans in issue, the debtor cannot validly discharge this obligation except by payments as they fall due in gold value." On behalf of the Norwegian Government, the -4gent of that Government declared a t the hearing of May 28th, 1957, that he maintained in their entirety his Submissions as formulated on May 23rd, 1957. The Submissions of the Parties, in the form in which they were given or confirmed a t the hearings of May 25th and May z8th, 1957, respectively, constitute their Final Submissions.

text: The facts which led the French Government to institute the present proceedings before the Court are as follows : Between 1896 and 1905, the Nonvegian Government floated six public loans on the French market and on other foreign markets. From 1885 to 1909, various loans were floated on foreign markets, including the French market, by the Mortgage Bank of the Kingdom of Norway, an establishment created by the State and whose capital belongs to the State. Finally, in 1904, the Norwegian Small Holding and Workers' Housing Bank floated aloan on the French market and on other foreign markets. The French Government contends that the bonds contain a gold clause ~vhich varies in form from bond to bond, but which that Government regards as sufficient in the case of each bond, this being disputed by the Nonvegian Government. Following upon the opening of hostilities in Europe, the convertibility of notes of the Bank of Norway was suspended on August 5th, 1914, this measure being later confirmed by Royal Decree of August 18th, 1914. During the ensuing period, the Bank of Nonvay was authorized to resume the convertibility of notes into goId (1916) and to suspendit anew (1920). This latter measure was in turn abrogated (1928) and notes of the Bank of Norway again became convertible. Homever, in 1931 the obligation of the Bank to convert notes was once more suspended; this measure is still in force.

text: During these years of instability, a law concerning pecuniary obligations whose payment was expressed in gold was promulgated on December ~ j t h , 1923. This law which, in accordance with its second Article, came into force a t once, provides in Article I :

text: "Where a debtor has lawfully agreed to pay in gold a pecuniary debt in kroner and where the creditor refuses to accept payment in Bank of Norway notes on the basis of their nominal gold value, the debtor may request a postponement of payment for such period as the Bank is exempted from its obligation to redeem its notes in accordance with their nominal value. Where a creditor withdraws his refusal he shall be entitled to require such payment only after the giving of three months' notice. During the period of postponement interest shall be paid at the rate of four percent per annum. Interest shall be paid in banknotes in accordance with their nominal value. Prior notice of w a i ~ e r of the right to request postponement may be given only by the State, municipalities, the Bank of Norway and the Banks which are fully guaranteed by the State (the Mortgage Bank, the Small Holding and Workers' Housing Bank and the Fisherg Bank)."

text: The first representations made by the French Government t o the Government of Norway were in the form of a Note dated June 16th, 1925, from the French Legation a t Oslo t o the Ministry of Foreign Affairs of Nonvay. This Note referred t o the loans floated b y the Mortgage Bank of the Kingdom of Nonvay, bvhich t h e French Government regarded as subject t o a gold clause, a n d t o the above-mentioned Nonvegian law of December ~ j t h , 1923. I t contained a brief reference t o the contradiction which it believed t o exist between that law a n d the obligations which had been assumed, contended "that it would not seem that a unilateral decision can be relied upon as against foreign creditors", a n d .. requested that the "Royal Ministry for Foreign Affairs should give its consideration and assistance for the purpose of securing prompt recognition b y the Xorwegian Government and b y t h e Mortgage Bank of Norway of the rights claimed b y the French holders of bonds of the Mortgage Bank of the Kingdom of Norway, the bondholders' claims appearing t o the Governinent of the Republic t o be fully justified". On December gth, 192j, the Ministry of Foreign Affairs of h'orway transmitted t o the French Legation a copy of a letter from the Board of Directors of the Mortgage Bank t o the hlinistry of Finance a n d declared t h a t the Jiinistry of Finance shared the view of the Board of Directors of the Mortgage Bank. I n this letter the Board disputed the assertions concerning the gold clause a n d added t h a t "the question has in a n y case been settled b y the law of December ~ j t h , 1923". Protracted diplomatic correspondence ensued in which the two Zovernments maintained their points of view. The representations

text: of the French Government now related to al1 the Norwegian loans, both the State loans and the loans of the two Banks. Various proposals were put forward, designed to submit the problem to a mixed Commission of Economic and Financial Experts, to arbitration, or to the International Court of Justice; the matter \vas also brought to the attention of the International Bank for Reconstruction and Development . The Norwegian Government was not prepared to agree to these proposals. I t maintained throughout that the claims of the bondholders were within the jurisdiction of the Norwegian courts, that the latter were competent to deal with them, and that these claims involved solely the interpretation and application of Norwegian law. The French bondholders, for their part, refrained from submitting their cases t o the Norwegian courts. The French Government did not accept the views of the Norwegian Government. By a Note of January 27th, 195 j, it proposed to the Nomregian Government that the dispute should be referred to an international tribunal in order to determine, on the basis of the general principles of international law, whether the clause which, it contended, mas contained in the bonds in question (the gold clause) had to be respected. On February and, 1955, the Norwegian Government declined this proposal, maintaining that the normal and proper procedure would be for the bondholders to start proceedings against the respective Nonvegian debtors in the Norwegian courts. I t added that it could see no reason for inaking an exception in the present case to the rule of international law under which international proceedings can only be instituted after the exhaustion of local remedies. I t was as a result of this refusal that the French Government referred the matter to the Court by an Application on July 6th, 19j5.

text: In its Application, the French Government requests the Court to adjudge and declare that the international loans issued by the Kingdom of Norway, by the Mortgage Bank of the Kingdom of Norway and by the Small Holding and Workers' Housing Bank, which are listed in the Application, stipulate in gold the amount of the borrower's obligation for the service of coupons and the redemption of bonds; and that the borrower can only discharge the substance of his debt by the payment of the gold value of the coupons on the date of payment and of the gold value of the redeemed bonds on the date of repayment. The claim in the Application has been maintained in the Memorial and in the Reply which, with regard to the merits, requests the Court to "uphold the Submissions of the Government of the French Republic set out in its Application of July 6th, 1955". The Applicatiorrexpressly refers to Article 36, paragraph 2, of the Statute of the Court and to the acceptance of the compulsory 15

text: NORWEGIAN LOANS (JUDGMENT OF JCLY 6th, 1957) 2 1

text: jurisdiction of the Court b y Norway on November 16th, 1946. a n d by France on March ~ s t , 1949. The Norwegian Declarationreads :

text: "1 declare on behalf of the Norwegian Government that Norway recognizes as compulsory ipso facto and without special agreement, in relationto any other State accepting the same obligation, that is to Say, on condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36, paragraph 2, of the Statute of the Court, for a period of ten years as from 3rd October

text: The French Declaration reads :

text: "On behalf of the Government of the French Republic, and subject to ratification, 1 declare that 1 recognize as comp~~lsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity . the jurisdiction of the International Court of Justice, in conformity with Article 36, paragraph 2, of the Statute of the said Court, for al1 disputes which may arise in respect of facts or situations subsequent to the ratification of the present declaration, with the exception of those with regard to which the parties may have agreed or may agree to have recourse to another method of peaceful settlement.

text: This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic. The present declaration has been made for five years from the date of the deposit of the instrument of ratification. I t shall continue in force thereafter until notice to the contrary is given by the French Government ." On April zoth, 1956, the Norwegian Government filed four Preliminary .Objections. The first Objection consisted of two parts. I n the first part the Norwegian Government maintained t h a t the subject of the dispute was ~vithin the exclusive domain of the municipal law of Norway, and t h a t i t did not fall within an'of the categories of disputes enumerated in Article 36, paragraph 2, of the Statute, b y reference t o which both Parties had b y their Declarations accepted the compulsory jurisdiction of the Court. I n the second part of t h a t Objection the Norwegian Government relied upon the reservation in the French Declaration with regard t o differences relating t o matters which are essentially within the national jurisdiction a s understood bu the French Government. I t challenged the jurisdiction of the Court on both grounds. The second Objection was based on the fact t h a t the French Declaration limited its acceptance of the compulsory jurisdiction of the Court t o "al1 disputes which ma57 arise in respect of facts o r situations subsequent t o the ratification" of the Declaration. I t was contended t h a t the dispute before the Court arose in respect of facts or situations prior t o March ~ s t , 1949, a n d t h a t , by virtue 16 of the condition of reciprocity, it was excluded from the undertaking subscribed t o by the Parties. The third Objection was designed to obtain a finding that the Application was inadmissible as regards that part of the claim which relates to the bonds of the two Norwegian Banks on the ground that they possess a legal personality distinct from that of the Norwegian State. Lastly, the fourth Objection sought a finding of the Court that the Application of the French Government was inadmissible on the ground that the French holders of the Norwegian bonds had not previously exhausted the local remedies. The French Government in its Observations and Submissions requested the Court to join the Preliminary Objections raised by the Norwegian Government to the merits. The latter Government did not oppose this request. Accordingly, the Court, taking into account this understanding between the Parties, by Order of September 28th, 1956, joined the Objections to the merits "in order that it may adjudicate in one and the same judgment upon these Objections and, if need be, on the merits". In the Counter-Memorial, the Norwegian Government declared its "immediate and unconditional abandonment of its second Objection". Accordingly, in the Counter-Memorial, the Reply, and the Rejoinder, as well as in the oral proceedings, both Parties discussed Objections 1, 3 and 4, and the merits.

text: The Court will a t the outset direct its attention to the Preliminary Objections of the Norwegian Government. The first of these Objections relates directly to the jurisdiction of the Court to adjudicate upon the dispute submitted to it by the French Application. I t is this Objection that the Court will examine first. As previously stated, this Objection, as presented by the Norwegian Government, has two aspects. In the first place, it is contended that the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, can be seised, by means of a unilateral Application, only of legal disputes falling within one of the four categories enumerated in paragraph 2 of Article 36 of the Statute and relating to international law. I t is urged that the Application of the French Government asks the Court to interpret loan contracts which, in the view of the Xorwegian Government, are governed by municipal law and not by international law. After presenting the first ground of its first Preliminary Objection on the basis that the loan contracts are governed by municipal law, the Norwegian Government continues in its Preliminary Objections:

text: "There can be no possible doubt on this point. If, however, there should still be some doubt, the Norwegian Government would rely upon the reservations made by the French Government in its Declaration of March ~ s t , 1949. By virtue of the principle of reciprocity, which is embodied in Article 36, paragraph 2 , of the Statute of the Court and which has been clearly expressed in the Norwegian Declaration of November 16th, 1946, the Norwegian Government

text: cannot be bound, vis-à-vis the French Government, by undertakings

text: which are either broader or stricter than those giren by the latter Government ."

text: I t is this second ground of the first Preliminary Objection which the Court will proceed t o consider. I t will be recalled t h a t the French Declaration accepting t h e compulsory jurisdiction of the Court contains the following reservation : "This declaration does not apply to differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic."

text: I n the Preliminary Objections filed by the Xorwegian Government i t is stated: "The Norwegian Go\-ernment did not insert any such reserration in its own Declaration. But it has the right to rely upon the restrictions placed by France upon her own undertakings. Convinced that the dispute which has been brought before the Court by the Application of July 6th. 1955, is within the domestic jurisdiction, the Norwegian Gox~ernment considers itself fully entitled to rely on this right. -\ccordingly, it requests the Court t o decline, on grounds that it lacks jurisdiction, the function which the French Government would have it assume."

text: I n considering this ground of the Objection the Court notes in the first place t h a t the present case has been brought before i t on the basis of Article 36, paragraph 2 , of the Statute a n d of the corresponding Declarations of acceptance of compulsorgjurisdiction; t h a t in the present case the jurisdiction of the Court depends upon the Declarations made by the Parties in accordance with Article 36, paragraph 2 , of the Statute on condition of reciprocity ; a n d that, since two unilateral declarations are involved, such jurisdiction is conferred upon the Court onlÿ t o the extent t o which the Declarations coincide in conferring it. A comparison between the two Declarations shows t h a t the French Declaration accepts the Court's jurisdiction within narrower limits than the Norwegian Declaration; consequently, the common will of the Parties, which is the basis of the Court's jurisdiction, exists within these narrower limits indicated by the French reservation. Following in this çonnection the jurisprudence of the Permanent Court of International Justice (Phosphates in Morocco case, Judgment of June rqth, 18

text: 1938, P.C.I.J., Series A/B, No, 74, p. 22; Electricity Company of Sofia and Bulgaria case, Judgment of April4th, 1939, P.C.I. J., Series A/B, No. 77, p. 81) the Court has reaffirmed this method of defining the limits of its jurisdiction. Thus the judgment of the Court in the Anglo-Iranian Oil Company case states: "As the Iranian Declaration is more limited in scope than the United Kingdom Declaration, it is the Iranian Declaration on which the Court must base itself." (I.C. J. Reflorts 1952, p. 103.) France has limited her acceptance of the compulsory jurisdiction of the Court by excluding beforehand disputes "relating to matters which are essentially within the national jurisdiction as understood by the Govemment of the French Republic". I n accordance with the condition of reciprocity to which acceptance of the compulsory' jurisdiction is made subject in both Declarations and which is provided for in Article 36, paragraph 3, of the Statute, Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes understood by Norway t o be essentially within its national jurisdiction. I n its Observations and Submissions on the Preliminary Objections raised by the Norwegian Govemment, the French Govemment points t o what it regards as a contradiction in the attitude of Norway: "Between France and Norway, there exists a treaty which makes the payment of any contractual debt a question of international law. In this connection the two States cannot therefore speak of domestic jurisdiction." The treaty here referred to is the Second Hague Convention of 1907 respecting the limitation of the employment of force for the recovery of contract debts. The French Government invokes it principally against the first ground of the first Objection and as such it does not fall for consideration here; but the passage quoted from the Observations and Submissions purports to show also that the second ground of the first Objection is not valid since both Parties are signatories of the Second Hague Convention of 1907. This calls for but brief observations by the Court.

text: The purpose of the Convention in question is that indicated in its title, that is to Say "the Limitation of the Employment of Force for the Recovery of Contract Debts". The aim of this Convention is not to introduce compulsory arbitration in the limited field to which it relates. The only obligation imposed by the Convention is that an intervening Power must not have recourse to force before it has tried arbitration. The Court can find no reason why the fact that the two Parties are signatories of the Second Hague Convention of 1907 should deprive Nonvay of the right to invoke the reservation in the French Declaration. The French Government also referred to the Franco-Norwegian Arbitration Convention of 1904 and to the General Act of Geneva of September 26th, 1928, to which both France and Norway are parties, as showing that the two Governments have agreed to submit their disputes to arbitration or judicial settlement in certain circumstances which it is unnecessary here to relate.

text: These engagements were referred to in the Observations and Submissions of the French Government on the Preliminary Objections and subsequently and more explicitly in the oral presentations of the French Agent. Neither of these references, however, can be regarded as sufficient to justify the view that the Application of the French Government was, so far as the question of jurisdiction is concerned, based upon the Convention or the General Act. If the French Government had intended to proceed upon that basis it would expressly have so stated. As already shown, the Application of the French Government is based clearly and precisely on the Norwegian and French Declarations under Article 36, paragraph 2, of the Statute. I n these circumstances the Court would not be justified in seeking a basis for its jurisdiction different from that which the French Government itself set out in its Application and by reference to which the case has been presented by both Parties to the Court. From one point of view it might be said that the second ground of the first Objection, namely the ground based on the reservation in the French Declaration, is merely subsidiary in character. I t is true that the first ground of the first Preliminary Objection relies upon the proposition that the Court lacks jurisdiction because the dispute falls to be dealt with under the municipal law of Norway. But Norway has also relied upon the second ground of its first Preliminary Objection. Xorway requests the Court "to decline, on grounds that it lacks jurisdiction, the function which the French Government would have it assume". I t is clear that this request is based on both grounds, the character of the dispute and the French reservation. In the opinion of the Court, the second ground cannot be regarded as subsidiary, in the sense that Norway would invoke the French reservation only in the event of the first ground of its Objection being held to be legally unfounded. The Court's competence is challenged on both grounds and the Court is free to base its decision on the ground which in its j udgment is more direct and conclusive. Not only did the Norwegian Government invoke the French reservation, but it maintained this second ground of its first Objection throughout and a t no time did it abandon it. The Submissions in the Counter-Memorial, maintained in the Rejoinder, are formulated as follows: "Having regard to the fact that the Norwegian Government maintains Preliminary Objections Nos. 1, 3 and 4 raised in the document submitted to the Court on April zoth, 1956, May it please 20

text: NORWEGI.4N LOANS (JVDGMENT O F J U L Y 6th, 1957) 26

text: the Court to adjudge and declare that the claim submitted by the Application of the French Government of July 6th, 1955, is not admissible. " Since the Preliminary Objections under the head "First Objection" relied upon both grounds-the character of the dispute and the French reservation-it was not necessary, in order t o maintain the two grounds, t o specify that both were involved. What has just been said also applies t o the Final Submissions of the Nonvegian Government . I n the course of his oral presentations Counsel for the Nonvegian Government stated : "... the Court has jurisdiction only in so far as undertakings prior to the origin of disputes have conferred upon it the power of adjudicating on such disputes as might arise between France and Nonvay. What are these undertakings? They are the undertakings resulting from the Declarations made by the two Governments on the basis of Article 36, paragraph 2, of the Statute of the Court.

text: That is the only basis on which the other Party can rely to shoy that its Application falls within the limits of the jurisdictional competence of the Court. In so far as the undertakings given by the two Parties are in concordance-to the extent of their reciprocityit is clear that Norway is bound in relation to France. But she h a no other obligation toward France. The Court may therefore adjudicate in this dispute only if it is included within these limits."

text: From the reply of the French Agent t o this argument it appears t h a t in his view the second ground of the first Objection was fully maintained b y Nonvagi. Later, in his oral rejoinder, the Agent for t h e Norwegian Government declared :

text: "We maintain our positions in their entirety both as regards the merits and as regards the Preliminary Objections." The Court cannot infer from the attitude of the Parties t h a t the second ground of the first Objection was regarded by them a s unimportant a n d still less t h a t i t was abandoned b y the Norwegian Government. Abandonment cannot be presumed or inferred; it must be declared expressly, a s was done when Norway declared its abandonment of its second Preliminary Objection.

text: The Court does not consider t h a t it should exainine whether t h e French reservation is consistent with the undertaking of a legal obligation and is compatible with Article 36, paragraph 6, of the Statute which provides :

text: K O R W E G I A N L 0 4 N S (JUDGMEXT O F J U L P 6th, 1957) 27 "In the event of a dispute as to whether the Court has jurisdiction. the matter shall be settled by the decision of the Court."

text: The validity of the reservation has not been questioned bj- the Parties. I t is clear that France fully maintains its Declaration, including the reservation, and that Norway relies upon the reservation. In consequence the Court has before it a provision which both Parties to the dispute regard as constituting an expression of their common will relating to the competence of the Court. The Court does not therefore consider that it is called upon to enter into an examination of the reservation in the light of considerations which are not presented by the issues in the proceedings. The Court, without prejudging the question, gives effect to the reservation a s it stands and as the Parties recognize it.

text: The Court considers that the Norwegian Government is entitled, b y virtue of the condition of reciprocity, to invoke the reservation contained in the French Declaration of March rst, 1949; that this reservation excludes from the jurisdiction of the Court the dispute which has been referred to it by the Application of the French Government; that consequently the Court is without jurisdiction to entertain the Application. In view of the foregoing it is not necessary for the Court to examine the first ground of the first Objection, or to deal with Objections 3 and 4 presented by the Norwegian Government, or with the Submissions of the Parties other than those upon which it is adjudicating in accordance with the reasons stated above.

text: For these reasons,

text: by twelve s70tes to ihree,

text: finds that it is without jurisdiction to adjudicate upon the dispute which has been brought before it by the Application of the Government of the French Republic of July 6th, 195 j.

text: Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this sixth day of July, one thousand nine hundred and fifty-seven, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the French Republic and to the Government of the Kingdom of Norway, respectively.

text: ( S i g n e d ) GREEN H. HACKWORTH. President :

text: ( S i g ~ z e d ) J . LOPEZ OLIV-b, Registrar.

text: Judge MOREXO QUINTANA, after voting for the Judgment, made the following declaration :

text: The reason why 1 consider that the Court is without jurisdiction in this case is different from that given in the Judgment. I base myself, not on the second ground of the first Objection put fonvard by the Government of the Kingdom of Nomay but on the first ground of that Objection. State loans, as being acts of sovereignty, are governed by municipal law.

text: Vice-President BXDAWI and Judge Sir Hersch LAGTERPACHT, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment of the Court statements of their individual opinions.

text: Judges GUERRERO, BASDEVANT and READ, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment of the Court statements of their dissenting opinions.

text: (Initialled) G. H . H. ( I n i t i a l l e d ) J. L. O.

title: Certain Norwegian Loans (France v. Norway)