Nottebohm (Liechtenstein v. Guatemala)

I N T E R N A T I O N A L COURT O F JUSTICE

Sovember I 8th General List :

YEAR 1953

No. 18

November 18th, 1953

NOTTEBOHM CASE

(1,IECHTENSTEIN v. GUATEMALA)

PRELIMINARY OBJECTION

]urisdictioîz O/ tlze Court.-Co?tzpzrlsor~~ j~~visdiciio?c arccPtr/i 61' Respondent State b y Drclaratio?~ valid for fixcrl 9erzod.-Efjcct of e x p i r y of this period after filing of Applicatio~~.-Coî<~,t competclzt to adjudicate upo?z challenge to its jurisdictioiz i n accovdn~îce wzth general internatio.nal laev and by vivtzte 'bf -4rticle 36 ( 6 ) of Statute.- Statutory power not confined to puestion whefhrv the dispute i s w i t h i n eategories enurvzerated i n Article 36 (z).-Lapse of Declaration after C O Z L Y ~ has been properly seised does not afject jilvisdictio~z O! Convt.

JUDGMENT

Present : Presidenf Sir ARNOLD MCNAIR ; Iz7ice-Presideîtt GUER-

RERO ; Jz~dges ALVAREZ, BASDEVAXT, HACKWORTH, WINIARSKI, KLAESTXD, BADAWI, READ, HSU MO, LEVI

CARNEIRO, ARMAND-'C'GON ; D e p ~ ~ t y - K e g i s t r a r GARNIER-

COIGNET.

I n the Nottebohm cnsc,

the Principality of Lit~hteristein,

represented by : 1)r. Erwin H. Loe\venfeld, I,J,.R.,

ris Agent,

nssisted by : Professor Georges Saust11--Hall. Professor of Iiiteriiational Law of the University of Geneva, SIr. E. Lauterpacht, llembcr of the English Bar,

as Coiinsel,

the Kepublic of Guatemala,

composed as above,

adjudicating on the Preliininary Objection of the Go\-criiment of Guatemala,

delivers the followilzg Jzldgme~it :

On Ijecernber 17tl1, 1951, the Government of the Principality of Liechtenstein filed ail Application instituting proceedings before the Coiirt against the Kepublic of Guatemala. This Application referred t o the Declaration of January 27th, 1947, whereby the Government of Guatemala accepted the compulsory jurisdiction of thch Coiirt in accordance with Article 36 of the Statute ; it also referretl to the Declaration deposited on ïilarch agth, 1950, with the Secr(?tai-y-General of the United Nations, by which the Principality of I>iechtt:nstein became a P a r t y t o the Statute of the Court, and t o the Ileclaration dated lslarch ~ o t h , 1950, and deposited on March zgth, whereby the Government of Liechtenstein accepted the compulsory jurisdiction of the Court in accordance with Article 36 of the Statute. T h e Application stated t h a t >Ir. Friedrich Nottebohm wns a natioiial of Liechtenstein a n d t h a t the (iovernment of Guatemala hnd acted towards his person a n d property in a manner contrary to international law, and submitted the follo\ving claims : "(a) that the Government of Guatçmala has acteci contrary 1:) international law and has jncurred international responsibilitv by the unjustified ctetention, internrnent and exp~ilsion of

Mi-. Nottebohm and by the sequestration and confiscation of his property ; (b) that the Go~ernment of Guatemala is bound to restore to 11Ir. ?I'ottebohm his moïable and immovable assets as shown in the list appended to the Note of G July 19j1 (Annex S o . I) ; (c) that the Government of Guatemala is bound to grant full compensation to &Ir. Nottebohm in respect of such property as it is not in a position to restore t o him owing to physical destruction or for other reasons ; ( d ) that the Government of Guatemala is bound to pay full compensation for the use of and profits derived from the sequestrated and confiscated assets and properties as well as for damage, depreciation and other losses sustained in respect of the said assets and properties as the result of or in connection with their seqiiestration or confiscation ; (e) 'chat the Government of Guatemala is boiind to pay full compensation for the unlawful detention and internment of Mr. Nottebohm as well as for preventing him, in a rnailner amounting t o unjustified espulsion, from returning to Guatemala ; (f) that the Court shall determine the amount of compensation due to the Government of the Principality of Liechtenstein under (c), ( d ) and ( e ) above."

Piirsuaiit t o ,irticle 40, paragraph 2 , of t h e S t a t u t e , t h e Application \vas coinmunicated t o t h e Government of Guatemala a n d , pursuant t o paragraph 3 of t h e same Article, other Members of t h e United Nations a s well a s non-member States entitled t o appear before t h e Court were informed of it. T h e G u a t e n ~ a l a ? i Declaration of J a n u a r - 27th, 1947, \vas i n the follokving t e r m s :

[Translation jrom tlze Spa~zislz j

"The Go\rerriment of Guatemala declareç that, iii accordance with Article 36 (ii) and (iii) of the Çtatute of the International Court of Justice, it recognizes as compulsory, i p s o facto and without special agreement, in relation to any other State acceptiiig the same obligation, aiid for a period of five years, the jiiristliction of the Court in al1 l e p l disputes. This c1eclar:~tion docs not cover the dispiite bethi~een England and Guatemala conccrning the restoration of the territory of lklize, which the Govrrnmeilt of Guateinala would, as it has proposed, agree to submit to the jiidgment of the Court, if the case were deci<ieci cx eqrto c.t b o t ~ o , in :iccordance with Article 3S (ii) of t!ic sait1 Statiitc.

T h e Declaration of 1,icchtcnstciil of March ~ o t h , 1950, \vas i n tht, follon7ing terms :

"The Go\,ernment of the Principality of Liechtenstein, duly authorized by His Serene Highness, the reigning Prince François Joseph I I , in accordance with the Order of the Diet of the Principalit;; of Liechtenstein dated 9th lirirch rq-io, which caille into force on 10th Jlarcl? 1950, declares by these presents t h a t the Principality oi Liechtenstein recognizes as compulsory ipso incto and ivitliout special agreement in rei.tion io any other Çtate accepting the snme obligation, the jurisdiction of the International Court of Justice in al1 disputes coilcerniriç : ('a) t!ie interpretation of a irenty ; l b ) a n y question of international la\! : (c) tiie existence of any fact n-liicli, if rctaùlished, woulci coi?st.itate ;i breach of an intii:.r.ntional obiigation ; ici) tlic i-ia.ture aiid estent of the :e!-~aration to be niac!i- foiiiic breach of an international ohligatioii.

1..

1 tie present Declai-ation, .ivhich is niade untic:- Article 3h of the Ytatute of^ the Internationai Court of jiisticii, silaIl tnke effect from the date on \?-hich t!ie Principality beco~nes a Party t o the Statut? ;!ni! shall t a l x effe:.! 2s long ac th? I.jeclarsiic~ri has 1101 been rel.oi;ed suhjcct to one year's noticr.

On beliaif o: the I;o\.èi-riiii:;nt of the Principaiity i ) f Ï~ic~ciztenii:~in : Head of :.~o\.crriincii~,

(Cigfzen'j .:. I'I~IcK."

\Vithi11 tiic îii!iic -iiiriit fised 5 y ordi.r of .j;inuary zbtii, rr) j 2 . wiiicii $vas estcncleti by Order of >furcil ;i h, a g j z , t h e Go\.ernrncnt nf Liccl~tcnstein 5lcil its Jlèrnuria:. ,% coinrririnication signed by cXc Ministzr for Foreign \ff:i!!-': of C;iiatc.mriia. datcil S e p t e m b e i q i h , 1952, u n d addressed t o t h e PI-esii!cn~ of ~ h e Court. \\-as rccc~i:,cd in tiic iiL3=i:';r>- o n S ~ p t e m ber 1 j l l i . 195.2, bcfoïc the c x p i ï s of :he ti~ile-iln?:? iised !,>7 t h ?

Order :)f 3iarçli /::il, 1952, for tiie filing (;f t h c ic?uritc.i--Jleino:-irLI

of th{, (I(:.,:irniiicnt of (;uaternaia. This d o c i i ~ i l c ~ i t , ; ~ f t r r ïcferring tc t!ic iiiia'ic~nialaii Declaration of j a n i r x r - 2 7 t h , 1q47, arid t certain 3otc.s csclianged between ~ l i i ~ ';finistri- for ForL>igji Mi"i.ir~

of (;ua;cmala and the Secrctai-iat of i-licl B7i;:red Sail:!ns, \\hicl:

r e l a t d to thr d a t e of t h e e n t r y iiito farce of th? said Ilcci:~rrttioii, set o u t the iolloxving contentions :

"((1) That the Republic of Guatemala recognized the conipulsor~jilrisdiction of the Court, but not in a n absolute and genera! form, since this would 11a.i.e inlplied ai: indefinite submission to the dctrirnent of its so.i.ereignty and iiot in accordrince with

7 its interest, if by reason of unforeseen circumstances the international situâtion cllanged ; (b) î l i a t it accepted this recognition for a period sufficiently long to enable it, during this period, to elucidate and settle legal disputes which had arisen or which might arise, and sufficiently short to al-oid the indefinite prolongation of a judgment or the submission of future questions, the genesis and circunlstances of ~vliicli could not be foreseen and would affect future goverilments and perhaps future generations of Guatemalans ;

(c) That during the period of five years which began on January 27th, 1917, and expired on January 26tl1, 1952, as u p to the present date there has not existed and does not exist any legal dispute, since Guatemala has not entered into any lawsuit contesting any claim ; (d) That the time-limit provided for in its Declaration of January 27th; 1947, expired with the last hour of January 26t11, 19j2, and that from this moment the International Court of Justice has no jurisdiction to treat, elucidate or decide cases which would affect Guatemala, except if Guatemala prolongs the duration of its declaration, submits itself by depositing a new declaration with the Çecretary-General of the United Nations, or signs a special protocol of submission with any other interested Çtate ; j e ) That in the absenct- of these last conditions, the Government of Guatemala 13, iiiucli to its regret, unable for the moment to appear hefore the International Court of Justice 111 any given case."

T h e above-mentioned cornnlunication then arguod t h a t t h e power conferred o n t h é Court by Article 36, pâragraph 6, of i t s S t a t u t e , t o determine disputes relating t o its ju:-isdiction, was applicable only t o questions a s t o whether a giX*.en dispute fell w i t h i ~ i t h e categories enumerated in paragraph 2 of t h a t Article, a n d went on t o make t h e following statements :

jTrunslatio7z from the Spanish]

"1. 'I'hat the Govei-nrnerit of the licpublic of Guaten2iiin 1:as taken note of the cl2iim prescritecl I)y the Government of the Priricipnlity of Liechtenstein on s u p p o s ~ d official acts to the alleged detriment of Mr. Iiederico Kottebohrn. II. That this Ministry is quite willing to begin negotiationç with the Government of the said Principality, ~vitli a T'~ew . ' t o arriving a t an amicable solution, eitl-ier ir? the sense of a direct settlement, an arbitration, or judicial çcttlemeiit, with r; preference for the last ~nentioned by means of the High Tribunal presided o17er by Your Excellency. III. That in the present circumstances, since the jurisdictioii of the International Court of Justice in relation to Guatemala has terminated and because it woiiid be contrary to ilie domestic laws of tIiat couiitr;-, ml; Go\.eminent is unable t o appear r.nd t o contest the claim which has beeiî made. Il'-. T h a t as a consequeiice, it caiinot, for the time being, a p ~ o i n t an Agent in ille case iii question. 1-. T h a t the attitude of Guatemala is not one of default or of \,olui~tai.!- absence, b u t , on the conti-arp. is based on great respect for tlic domestic laxvs in force in oui- country- a n d t h e need for enforcing tliern, and for tlic ternis of t h e S t a t u t c of the Court and of t h e Giiatemalan cleclnration of Januai-'- 27tli. 1(]4/, formulated in accorclancc ~ r i t l i the said Statute. 1.1. 'Tliat in no cas? should al1 or an>- part of this Note be coilsiclcrcd a s a :-:1,1!. :iffirmati\-e or negcitir.?, or a default or 1-o1untnr~- ;~bscnce. biit as a sratcment of ils inability t o appear bcfort. this High 'Tribunal.

1.11. T1:nt t1:c cc?~iipetyni orgails cf m y Go\-criiinerit are nt prcsen? studying the dcsirat~ility and tlic ternis of a new declaration of siibriiissioii ir: conforinity \vitfi t h e said .\rticlc 36, paragri;:)lis (ii) and ( i i i ) . uf tlics 5:atutt. of the International Court of justice. l r l i i . 'fliat in it5 case and as soon a s this iie~v (leclarazion of subrr~issioi~ is clcfiiiiti~ly ap:~r«\.ed bj. tkic competc:nr orzans (1: 5,tate \vit11 a \.ic,n. to ;icci.pting tlic co~ripulsory jlirisdictiori of i-lic Cour?, it -,\-ill iininecliatel\- (id>(j~it this decl-ïrntion \ ~ i t l i tiic i;cc:-c~ar~--C;c~i-~ci-$~l of t h c Vniteci Kations in order that it sli:~ll scr\.c a norm for jurisdictioii in rrl:ition t o (;u:iti.:iiala a n d other Sicitcs, on 3 basis of reciproci1:-, so iiii- a s ilcl\- tlisl~utcs. ai- \\ ell a s t!ioi;:. if an>-, \.ihicli were ~ v a i t i n ~ be ciea!! witii or (lecideil on Janc2r-j- z/tl!, I q j Z ; are concerncd. 1 1 . .-ln«, f~ii.ill\ . rliat riotnit!!~taiiàing rlic foregoing xnd \vliile foriiicl::lLirig tiie dcc1,i~- :iioli 1-efc!-i-cc1 ti, iii tii'c forcg!iiig subp ; ~ r a g i ; ? p l ~ s l . I I and i 111, this hlinistrp is pc,rfectiy willing t o c o i ~ s i c l ~ ~ r . in agrecincn! wit'ri a n y otlicxr inter-&cd s t a t é , tlic ternls of a spccinl ;)rotocol si~i?rnittiiig t o tiic Court a n y inattc:- in conti-ox-crsy \\-liicli ni,;' fail \~:itliiii t!ie cas% set out iii .Article 36, pciragraplis (ii) aixl jiii;; vf the 5t;i'inte of tlic Inte;-nntiorial Court cf Justice."

By O r d e r of Rlarch 21st, 1953, thcl Court !ixed :L tiiiie-limit for t h e ~ > r c s e n t a t i o ~ z by t h e Go\-ernment of T,icchter~stcin cif a ~ v r i t t c ~ i s t a t e ~ n e r i : of t h e i r o b s e r v a t i o n s iii ri:gard i o t h c a ' u o v c ~ - f i ~ ~ ~ n t i o ~ ~ e d commnnicatioii of the Government of G u a t e m a l a . T h i s s t a t e m r n t , which w a s filed on h f a y 21st, 19j3. t h a t is within t l : ~ tiiliv-limit so fixed, s u b i n i t t e d t h e follo\virig conclusions :

"(A) I t inust be a m a t t e r for consideration by tlic Court ~vlietliei' t h e corninunication of the Governinent oi Guatt.mnl;i of t h e 9 t h (ieptember 1952 co~istitutes :i i"rcliminar'- Objection witliiii the meaning of Rule 02 of the Iiules of the Court or ci refusal, aniounting t o a default. to plead before the Court. O

S O T T E B O H N C;\SE ( J V D G ~ I E K T O F 18 XI 53) I I f

(B) The present obserl-ations of the Go\-ernment of Liechtenstein are based on the assumption that the cornmiinicatioii of tliz 9th September 19 52 constitutes a Preliminarg- Objection t ( j the jurisdiction of the Court. This as:~uinption is adopted xithou: prejudice to the right of the Go\-ernment of Liechtenstein to involce the provisions of Article j 3 of the Statute of the Court. (C) The terms of the Declaration made by Guatemala on the 27th January 1917, in accordance \vit11 & h i c l e 36 (ii) and (iii) of the Statute of the International Court of Justice and submitting to the jurisdiction of the Coirrt for a period of five years, are sufficient to confer jurisdiction upon the Court to llear and determine any case in mlrich proceedings n-en. instituted prior to midnight, the zbth Janiiary 19jz. (D) The International Court of Justice !las the competence. iii accordance bot11 with .\rticle 36 (vi) of the Statute and with general principles of international lau-. to determine questions relating to its own jurisdiction. (E) The alleged incapacity (which is not admitted) of the Go\-ernment of Giiatemala under the laws of Guatemala to appear in the present ease nfter the 27th January I q j z , in no way affects either the obligations of that Goverilment under intel-national ian: or the jurisdiction of the Court.

(FI ,4ccordingly, the (;O\-crrinient of Liecl~tenstein recluest the Court to assume ju:i.;dir:tio~i 01-er the questions rniscd by the Go~,ernnicnt of Idiecliteristein in their :ipplicatio~i of tilt, iotli December Ig-jI, a ~ ~ d to reject the co~iti-;iïy corite~~tions l o f the Go\-ernment of Guatcniala."

.ifter the filiiig of t h e n-:-ittcn s t n t c i n e ~ i t of rlie obscrv:itioiis of t h e Government c)E Liechtenstein. t l ~ issu;, 1-aised ir, t h e Guaterna!arr commu:iication of September 9 t h n-as rt?:~.d!. for hca.ring.

The Court, lia\-i~ig taken iiiro account the dc,clared intention of t h e Parties t o seek a settlcmci:! of t h t i r d i s l ~ u t ~ y bj. n:gotiatio~i, but iiot having been informed t h a t siich iiébc~tiatioii hac! ac11ii.ved ail? result, fisetl a htyaring for Xovern11c.r r otii. 1953, in order t o nl!omt h e Particis t o subniit their a r g u m e ~ i t ~ . This decisioil \y35 11::tified t o t h e t\vo Go\-criiments. On i\;o\.eniber ()th, t h e d a y before th:. hearin,~;, rlie C1:arsé d ' a f faires u t Guatemala in Paris trans:ni::t~d :O t h e lCcgisti-!. ;t inessagt,. addresst\ci t o the Cuiirt b y the llinister for Foreign ;lffairs of Guatemala. I n this message, tlic Court \v:ts requcsti,d t o postponr t h c oral procccdings t o a later dntc a n d , furtlii~rinorc, in t h e cveiit of t h e postponenient not being grantlxd, t o confine its decisi011 c:scliisively t o t h e objection lodged by Guatemala. At the hearing of November ~ o t h , 1953, t h e d a t e originaily fixed, which t h e Court did not consider it proper t o change., the Government of Liechtenstein was represented b y its -\gent, assisted b y Counsel ; tl-ie Governnient of (iuatemala \vas not represc,iitcd.

-At this sitting, the Court heard Dr. Loen-enfeld, Agent, a n d Professor Sauser-Hall. Counsel, on behalf of the Government of Liechtenstein. At the end of their argument, the Agent said t h a t he \\-ould maintain the conclusions contained in the statement of May ~ r s t , 19j3, and that a n additional conclusion would be filed with the Registry in nriting. That conclusion mras as follo\fs :

" ( G ) The Go\-el-ilmerit of Liecliteristein i-eserve their rigiit to in\.oke, slioiild the necesrity arise, the provisions of -4rticle 53 of the Stntiltc of the Court in relation to the merits of the present dispute."

By challenging, in its communication of September gth, 1952, the jurisdiction of the Court t o deal with the claim \\,hich \vas the s ~ b j e c t of the ,Applicatio~i filed by the Government of Liechtenstein and by refraining in consequence from presenting a Counter- Memorial, the Government of Guatemala has raised a Preliminary Objection as it has recognized in its message of November 9th, 1953.

The Court Iîas, for the present, t o examine only this Preliminary Objection, and this Judgment \vil1 be concerned with it alone. I n its communication of September g t h , 1952, the GoTiernment of (;ua.temala set forth the considerations of fact and of !a\v on \vhich it based this Objection. The Objection \\-as discussed by the Governmeni of 1,iechtensteiri ir: its Observations and in the argurnerits of its .Agent and Counsel a t the heariiig on Xovember ~ o t h , 1953.

I n its communication of September gth, 1952, the Go\-ernment of Guatemala d r c ~ v attention t o the fact that the Declaration 1))- n-hich it accepted the conîpulsory jurisdiction of the Court had, in accordance with what \vas stated therein, ceased t o be in force after January 26th, 19j2 ; it stated t h a t it therefore considered t h a t the Court had no jurisdiction t o deal with the case brougl~t before i t by Liechtençteiri. The Go\-ernmeilt of Liechtenstein requests the Court t o adjildicate n p n this challenge of its jurisdiction. I t contends t h a t the Court is empon-ered to do so hi. -Article 36, paragraph 6, of the Statut?, \vhich provides that :

"In the el-ent of a dispute as to wliethcr the Court has lurisclictioii. the matter shall be settled by the decision of the Court."

The Government of Guatemala, for its part, after stating t h a t i t originally contemplated aslting the Court to adjiidicate upon this point, added, in its communication of September 9th, 1952, that it had come t o the conclusioi~ that this course n-ould not be practicable since it n-ould be contrarg- t o the Statute.

S O T T E B O H l I CASE ( J U D G ~ I E S T O F 18 XI 5 3 ) 119 The Government of Guatemala indeed considers that paragraph 6 of Article 36 only relates to disputes concerning jurisdiction in respect of the application of paragraph 2 of that Article, and that it is therefore confined to disputes for the solution of which it is necessary to ascertain whether the claim falls within one of the categories enuinerated under letters a , b, c and d of that paragraph. But, it is pointed out by the Government of Guatemala, the question lvhich must be decided a t this stage is not whether the claim of Liechtenstein falls within one of these categories, but rather whether the expiry of the Declara~ion by which Guatemala accepted the compulsory jurisdiction of the Court has put an end to the Court's jurisdiction t o deal v-ith the claim of Liechtenstein. Paragraph 6 of Article 36 is drafted in the broadest terms ; there is nothing in it to indicate the restriction lvhich the Government of Guatemala seeks to introduce by means of an interpretation.

Paragraph 6 of Article 36 merely adopted, in respect of the Ccurt, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right t o decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. This principle was expressly recognized in ,\rticles 48 and 73 of the Hague Conventions of July zgth, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes, to which Guatemala became a Party. The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being "of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function". This principle has been frequently applied and a t times expressly stated. This principle, which is accepted by general international la\\- in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjndicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the Cnited Nations. Consequently, the Court has not hesitated to adjudicate on the question of its own jurisdiction in cases in which the dispute which had arisen in this respect went beyond the interpretation and application of paragraph z of Article 36. In the Corfu Channel case (Judgment of rlpril gth, 1949, I . C . J. Reports 1949, pp. 23-26 and 36), the Court adjudicated on a dispute as to whether it had jurisdiction to assess the amount of compensation, a dispute which related to the interpretation of a Special Xgreemcnt ; in the ;\inha-

S O T T E B O H l I C A S E ( J C L ) G ~ I E S T O F 18 X I 53) 1 2 0

tielos case (Judgment of JulJ7 ~ s t , 19j2, 1. C. J. R e p o ~ t s 1gj2, p. 2S), the Court adjudicated upon a dispute as to its jurisdiction lvhich related to the interpretation of a jurisdictional clause embodied in a treaty ; in both cases the dispute as to the Court's jurisdiction related to paragraph I and not to paragraph 2 of Article 36. Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, "n~hose fuilction is to decide in accordance with international latv such disputes as are submitted to it" (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case. Consequently, the Court must ascertain and decide ivhether the expirj- on January 26th, 19 j 2 , of the Declaration by \\-hich Guatemala accepted the compulsory jurisdiction of the Court has had the effect of depriving the Court of its jurisdiction to adjudicate on the claim stated in the Application, of which it was seised on Ikcember 17th, 1951, by the Government of Liechtenstein.

The Application tvas filed in the Xegistry of the Court on December 17th, 1951. At the time of its filing, the Declarations of acceptance of the compulsory jurisdiction of the Court by Guatemala and Dy Liechtenstein were both in force. Article 36 of the Stat'ute and these Declarations determined the law governing the Application. In accordance with these Declarations, the Application was filed in sufficient time validly to effect the seisin of the Court under Articles 36 and 4c of the Statute and -4rticle 32 of the Rules. The Governinent of Guatemala has stated that, in conformity with what was said in its Declaration of acceptaiice of the compulsory jurisdiction of the Court, the efiect of that L)eclaration came to an end on January 26th, 1952. I t draws the coilclusion that after that date the Court ceased to have jurisdiction to deal with a dispute afiecting Guatemala and, coilsequentlg., to deal n-ith the dispute which was the subject of the Application filed on bclialf of the Government of Liechtenstein or1 December 17th. 1951. The latter Government does not contest the espiry of the Declaratioc of Guatemala but it does contest that the Court has, by reason thereof, become incompetent to deal with the dispute of which it had been seised. Guatemala is here putting fortvard a new interpretation of the effect attaching to the limited period (of five years) for which in 1947 it accepted the compulsory jurisdiction of the Coiirt. I t is new, in the first place, in the sense that it had never before advanced

13 it. I n particular, ~ v h e n on ,iugust 6th, 1947, it indicated t o t h e Secretary-General of the United Nations that its Declaration was t o be regarded as having come into force on the previous January 27th, i t said nothing with regard t o the effect which might attach to the expiry of the period in respect of which the Declaration was made. This interpretation is new also in the sense that it appears never before t o have been advanced and, indeed, Guatemala has cited no authority in support of it. The P e r ~ n a n e n t Court of International Justice \vas on occasion confronted with a situation not unlike the present one, but i t was never alleged by a n interested party t h a t the expiry of the period in respect of which a Declaration of acceptance of compulsory jurisdiction had been made, involved the removal from the Court's list of a case brought before the Court before the expiry of t h a t period. This arose in the Losinger case a n d in the Phosphates in Pllorocco case, bvhere the Parties confined themselves t o raising other objections t o the jurisdiction and against admissibility. The attitude of certain States in those cases does not, however, absolve the Court from the d u t y of examining ~vhether the interpretation put for\\-ard is in fact a proper construction of the clause by which Guatemala limited the effect of its Declaration of January 27th, 1947, t o a period of five years. I n the Ileclaration which the Government of Guatemala deposited with the Secretariat of the United Nations on August 27th, 1952, a copy of which appeared in that Government's communication t o the Court of September gth, 1952, it is said t h a t "it \vas the definite intention of the Government of Guatemala t h a t on the expiry of the period of five years during which it submitted to the compulsory jurisdiction of the Court, this submission should end automatically". The Declaration of Guatemala of J anuary 27th, 1947, makes it clear that this submission was t o endure for a period of five years. There can be no doubt that a n Application filed after the expiry of this period would not have the effect of legally seising the Court. But neither in its Declaration nor in any other way did Guatemala then indicate t h a t the time-limit provided for in its Declaration meant that the expiry of the period ~vould deprive the Court of jurisdiction to deal with cases of which it had been previously seised. This interpretütion appeared for the iirst time in the communications of Augusr 27th and September gth, 1952. I n the latter, the Go\-ernment of Guatemala referred to the definition given by the law of Guatemala to the word "jurisdiction", n a ~ n e l y "the power of admiiiistering justice", and it drew the conclusion that, since Guatemala had accepted the jurisdiction of the Court for a period ending on January 26th, 1952, the Court, after that date, no longer had the power of administering justice with reference t o Guatemala. The Court is not conccrned with defining the meaning of the word "jiirisdiction" in general. I n the present case, it must determine the scope and meaning of the Declaration made by Guatemala on the basis of Article 36, paragraph 2, a Declaration which, together with that provision and with the corresponding Declaration b y Liechtenstein, contains the law governing the question under consideration. ilrticle 36 determines the cases in respect of which the Court shall have jurisdiction. I t indicates tl-iat the Court call deal with cases referred to it by agreement of the parties ; and it determines the field of application of xvhat has come to be called t h e compulsory jurisdiction of the Court. The characteristic of this compulsory jurisdiction is that it results from a previous agreement which makes it possible to seise the Court of a dispute without a Special Agreement, and that in respect of disputes subject t o it, the Court may be seised by means of an Application by one of the parties. Paragraph 2 of Article 36 refers t o the subject-matter oi comp~zlsory jurisdiction, the principle and application of krhich i t governs in conjunction with Articles 32 to 3 j of the Rules. It makes use, as do the 1)eclarations relating to it, of the words "compulsory" and "jurisdiction", and the structure of the text is suf-icient to show that of these two words the first is the more important. The purpose of Article 36, paragraph 2 , and of the Declarations relating thereto, is to regulate the seising of the Court : under the system of the Statute the seising of the Court by meails of an Application is not i$so facto open to al1 States parties t o the Statute, it is only open t o the estent defined in the applicable Declarations. This being so, the lapse of a Declaration b y reason of the expiry, before the filing of the Application, of the period fixed therein makeç it impossible to invoke that Declaration in order t o seise the Court.

r p

l h e seising of the Court is thus dominated by the Declarations emanating from the parties when recourse is had to the co~llpulsory jurisdiction in accordance \vit11 Article 36, paragraph 2 . B u t the seising of the Court is one thing, the administration of justice is another. The latter is governed by the Çtatute, and by the Rules which the Court has drawn up by virtue of the powers conferred upon it by Article 30 of the Statute. Once the Court has been regularly seised, the Court must exercise its powers, as these are defined in the Statute. After that, the expiry of the period fised for Gne of the Declarations on ~vhich the ,\-plication n-as founded is an event which is unrelated to the exercise of the poners ronferred on the Court by the Statute, which the Coiirt inust exercise whenever it has been regularly seised and xvhcnever it has not been shown, on some other ground, that it lacks jurisdiction or that the claim is inadmissible. At the time when the Application \vas filed, the Declarations of Guatemala and of Liechtenstein were both in force. The regularity of the seising of the Court by this Application has not been disputed. The subsequent lapse of the Declaration of Guatemala, by reason of the expiry of the period for which it was subscribed, cannot invalidate the -4pplication if the latter was regular : consequently, the lapse of the Declaration cannot deprij-e the Court of the jurisdiction which resulted from the combined application of Article 36 of the Statute and the two Declarations. When an Application is filed a t a time when the law in force between the parties entails the compulsorj7 jurisdiction of the Court -which \vas the case between Guatemala and Liechtenstein on Decembér 17111, ~ g j r - t h e filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to producc its effects in respect of the claim advanced in the Xpplication. Once this condition has been satisfied, the Court must deal with the ciaim ; it has jurisdiction to deal u ~ i t h al1 its aspects, whether they relate to jiirisdiction, to admissibility or to the merits. An estrinsic fact such as the subsequent lapse of the Declaration, by reason of tkc espiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established.

On tlic point here examined, the Governineiit of Guatemala has referred in its communication of September gth, 1952, to certain provisions in the laws of that country. The Goverilment of Liechtenstein has made use of this in order to contend that the lam-s of Guatemala cannot take precedence over the rules of international lalv which arc applicable to this case. The Court does not consider that Liechtenstein in this connection has given a correct interpretation of the view of Guatemala on this point. In the opinion of the Court, the Government of Guatemala, on the premise that the Court lacked jurisdiction in an absolute manner, meant that, b'j reason of the Court's lack of jurisdiction, the 1au.s of Guatemala did not authorize that Government to be represented before a court which had no power to adjudicate. The Court does not consider it necessary t o asccrtain what tlic laws of Gu:itc.mala provide in this connection. I t wil! confine itself to stating that, once its jurisdiction has been established by the present jiidgment with binding force on the Parties, the dificulty, in xvhich the (;o~~csnment of Guatemala coiisidered that it had been placed, will be removed and there \vil1 be nothing to prevent that Governmeilt from being represented bcforï the Court in accordancc with the provisions of the Statute and Iiules. This is, inoreover, what that Government apl)e:lrs to have admitted in its communication of September gth, 1952. S o . 2 2 , I I I , where the Mlnister for Foreign Affairs stated :

" - y

1 hat i n the present circunistanccs, since the jurisdictioii nf the Court in relation to Guatemala hns terminated and bccause it would 1)e contrary to the doinestic laws of that couritr!-, ni" Go\.errinie~it is iinnblc t o appear- aiid to contest tlic claim \vliicli lins 1,ecn maclc." I G

This interpretation is confirmed by the final sentence in the message of November gth, I 9 j 3 , which reads a s follows :

[Translation]

"ln case negative decisioil Court on objectio~l proposed, Guatemala reserves right to be represented dispute and raise further objections."

The Court has come t o the conclusion that the expiry on January 26th, 1952, of the five-year period for which the Government of Guatemala subscribed to a Declaration accepting the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute, does not affect an? jurisdiction which the Court may have t o deal with the claim presented in the Application of which it was seised on December 17th, 1951, b y the Government of the Principalitp of Liechtenstein ; the Court will ilow accordingly resume the proceedings on the merits and fix time-limits for the further Pleadings.

For these reasoilç.

unanimously ,

rejects the Preliminary Objection presented by the Government of the Republic of Guatemala ;

resuines the proceedings on the merits ;

and fixes the followiilg time-limits for the rest of the procedure :

for the Iiling of the Counter-Memorial of the Governinent of Guatemala, January zoth, 1954 ; for the filing of the Reply of the Government of Liechtenstein, February z j t h , 1954 ; for the filing of the Rejoinder of the Government of Guatemala, April ~ o t h , 1954.

Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this eighteenth day of November, one thousand nine hundred and fifty-three, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Governments of the Principality of Liechtenstein and of the Republic of Guatemala, respectively.

(Siggzed) ARXOLD D. M C ~ A I R , President.

( S i g n e d ) GARXIER-COIGNET, Deputy-Registrar.

Judge KLAESTAD declares that he has voted for the rejection of the Preliminary Objection of Guatemala on the ground, undisputed by the Parties, that the jurisdiction of the Court existed a t the moment when the Application of Liechtenstein was filed. The fact that the Declaration by which Guatemala accepted the compulsory jurisdiction of the Court expired some time after the filing of that Application, can have no effect as regards the Court's jurisdiction to deal with and decide the merits of the present dispute-a jurisdiction which was definitively established by the filing of the Application. With regard to the allegations of the Government of Guatemala that provisions of its national law prevent that Government and its officiais from appearing before the Court, it suffices to Say that such national provisions cannot be invoked against rules of international law.