summaries of advisory opninonb and orders of the icj

7/21/2019 Summaries of Advisory Opninonb and Orders of the ICJ

1/236

ST/LEG/SER.F/1

SUMMARIES

OF

Judgments,Advisory Opinions

and

Orders

OF THE

International Court

ofJustice

1948-1991

UNITED NATIONS


2/236

ST/LEG/SER.F/1

Summaries

of

Judgments,Advisory Opinionsand

Ordersof theInternational Court

ofJustice

1948-1991

United Nations N ew

York,

1992


3/236

CONTENTS

tge

FOREWORD 1

1. CORFU CHANN EL CASE (PRELIMINARY OBJECTION)

Judgment of

25

March 1948 3

2. CONDITIONS OF ADMISSION OF A STATE TO MEMBERSHIP IN THE

UNITED NATIONS (ARTICLE 4 OF CHARTER)

Advisory Opinion of28May 1948 4

3. CORFU CHANNEL CASE (MERITS)

Judgment of

9

April 1949 5

4. REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED

NATIONS

Advisor/Opinion of11April 1949 8

5. CORFU CHANNEL CASE (ASSESSMENT OF AMOUNT OF COMPENSATION)

Judgment of

15

Decem ber 1949 9

6. COMPETENCE OF THE GENERAL ASSEMBLY FOR THE ADMISSION OF A

STATE TO THE UNITED NATIONS

Advisory Opinion of

3

March 1950 10

7. INTERPRETATION OF PEACE TREATIES WITH BULGARIA, HUN GARY

AND ROMANIA (FIRST PHASE)

Advisory Opinion of

30

March 1950 11

8. INTERNATIONAL STATUS OF SOUTH-WEST AFRICA

Advisory Opinion of11 July 1950 12

9. INTERPRETATION OF PEACE TREATIES WITH BULGARIA, HUNGA RY

AND ROMANIA (SECOND PHASE)

Adv isory Opinion of 18 July 1950 14

10. ASYLUM CASE

Judgment of 20 Novem ber 1950 16

11 . REQUE ST FOR INTERPRETATION OF THE JUDGM ENT OF 20 NOVEMBER

1950 IN THE ASYLU M CASE

Judgment of27Novem ber 1950 18

12. RESERVATIONS TO THE CONVENTION ON THE PREVENTION A ND

PUNISHMENT O F THE CRIME OF GENOCIDE

Advisory Opinion of

28

May 1951 18

13 .

HAYA DE LA TORRE CASE

Judgment of13June 1951 20

14. FISHERIES CASE

Judgment of18Decemb er 1951 21

15. AMBATIELOS CASE (PRELIMINARY OBJECTION)

Judgment of1July 1952 23

16. ANGLO-IRANIAN OILCO .CASE (PRELIMINARY O BJECTION)

Judgment of

22

July 1952 24

17. CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF

AMERICA IN MOROCCO

Judgment of

27

August 1952 25

18 . AMBATIELOS CASE (MERITS)

Judgment of

19

May 1953 26

19. MINQUIERS AND ECREHOS CASE

Judgment of17Novembe r 1953 27

20.

NOTTEBOHM CASE (PRELIMINARY OBJECTION)

Judgment of18November 1953 29

21.

CASE OF THE MONETARY GOLD REMOVED FROM ROME IN 1943

Judgment of15June 1954 29

iii


4/236

toge

22. EFFECTS OF AWARDS OF COMPENSATION M ADE BY THE UNITED

NATIONS ADMINISTRATIVE TRIBUNAL

Advisory Opinion of13July 1954 31

23. NOTTEBOHM CASE (SECOND PHASE)

Judgment of

6

April 1955 32

24 . VOTING PROCEDURE ON QUESTIONS RELATING TO REPORTS AN D

PETITIONS CONCERNING THE TERRITORY OF SOUTH-WEST AFRICA

Advisory Opinion of 7 June 1955 34

2 5. ADMISSIBILITY OF HEARINGS OF PETITIONERS" BY THE COMMITTEE

ON SOUTH-WEST AFRICA

Advisory Opinion of1 June 1956 36

26.

JUDGMENTS OF THE ADMINISTRATIVE TRIBUNAL OF THE ILO UPON

COMPLAINTS MAD E AGAINST UNESCO

Advisory Opinion of

23

October 1956 37

27.

CASE

OF

CERTAIN NORWEGIAN LOANS

Judgment of 6 July 1957 39

2 8.

INTERHANDELCASE(INTERIM PROTECTION)

Order

of

24

October 1957 41

29.

CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY

(PRELIMINARY OBJECTIONS)


30.

CASE CONCERNING THE APPLICATION OF THE CONVENTION OF 1902

GOVERNINGTHEGUARDIANSHIPOFINFANTS

Judgmentof28 November 1957 44

31. INTERHANDEL CASE (PRELIMINARY OBJECTIONS)

Judgment of 21 March 1959 46

32. CASE CONCERNING THE AERIAL INCIDENT OF 27 JULY 1955 (ISRAEL v.

BULGARIA) (PRELIMINARY OBJECTIONS)

Judgment of

26

May 1959 48

33 . CASE CONCERNING SOVEREIGNTY OVER CERTAIN FRONTIER LAND

Judgment o f

20

June 1959 50

34 . CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY

(MERITS)

Judgment of

12

April 1960 52

35 .

CONSTITUTIONOF THEMARITIME SAFETY COMM ITTEEOF THEINTER-

GOVERNMENTAL M ARITIME CONSULTATIVE ORGANIZATION

Advisory Opinion of 8 June 1960 54

36 . CASE CONCERNING THE ARBITRAL AWARD MADE BY THE KING OFSPAIN ON 23 DECEMBER 1906


37 . CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (PRELIMINARY

OBJECTIONS)

Judgment of 26

May

1.961 57

38 . CASE

CONCERNING

THE

TEMPLE

OF

PREAH VIHEAR (MERITS)

Judgmentof 15 June 1962 58

39 .

CERTAIN EXPENSES OF THE UNITED NATIONS (ARTICLE 17,

PARAGRAPH 2,

OF THE

CHARTER)

Advisory Opinion o f

20

July 1962 60

40.

SOUTH-WEST AFRICA CASES (PRELIMINARY OBJECTIONS)

Judgment of21December 1962 63

41 . CASE CONCERNINGTHENORTHERN CAMEROONS

Judgment of 2 December 1963 65

42.

CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER

COMPANY, LIMITED (PRELIMINARY OBJECTIONS)


43.

SOUTH-WEST AFRICA CASES (SECOND PHASE)

Judgmentof 18July 1966 69

44 .

NORTH SEA CONTINENTAL

SHELF

CASES

Judgment of 20 February 1969 72

45. CASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER

COMPANY, LIMITED (SECOND PHASE)


iv


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toge

46.

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE

OF SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA) NOTWITH-

STANDING SECURITY COUNCIL RESOLUTION 276 (1970)

Advisory Opinion of

21

June 1971 78

47. FISHERIES JURISDICTION CASE (UNITE D KINGDOM v. ICELAND)*

(INTERIM PROTECTION)

Order of 17 August 1 972

^81

48 . FISHERIES JURISDICTION CASE (FEDERAL REPUBLIC OF GERM ANY v.

ICELAND ) INTERIM PROTECTION

Order of 17 August 1972 >

49. CASE CONCERNING THE APPEAL RELATING TO THE JURISDICTION OF

THE ICAO COUNCIL

Judgmentof 18 August 1972 82

50 . FISHERIES JURISDICTION CASE (UNITED KINGDOM v. ICELAND ) (JURIS-

DICTION

OF THE

COURT)

Judgment of 2 February 2 1973 84

51.

FISHERIES JURISDICTION CASE (FEDERAL REPUBLIC OF GERM ANY v.

ICELAN D) (JURISDICTION OF

THE

COURT)


52 . NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE) (INTERIM PROTECTION)

Order of2 2June 1973 87

53.

NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE) (INTERIM PROTEC-

TION)

Order of

2 2

June 1973 88

54 . APPLICATION FOR REVIEW OF JUDGEME NT NO . 158 OF THE UNITED


Advisory Opinion of

12

July 1973 89

55 . FISHERIES JURISDICTION CASE (UNITED KINGDOM v. ICELAND )'

(INTERIM PROTECTION)

Order of 12 July 1973

>9l

56. FISHERIES JURISDICTION CASE (FEDERAL REPUBLIC OF GERM ANY v.

ICELAN D) (INTERIM PROTECTION)

Order of

12

July 1973 >

57 .

FISHERIES JURISDICTION CASE (UNITED KINGDOM v. ICELA ND)

(MERITS)


58 . FISHERIES JURISDICTION CASE (FEDERAL REPUBLIC OF GERM ANY v.

ICELAND) (MERITS)

Judgment of

2 5

July 1974 94

59 . NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)


60 . NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE)

Judgment of 20 December 1974 ; 97

61.

WESTERN SAHARA

Advisory Opinion of 16 October 1975 100

62 . AEGE AN SEA CONTINENTAL SHELF CASE (INTERIM PROTECTION)

Order of

11

September 1976 102

63. AEGE AN SEA CONTINENTAL SHELF CASE (JURISDICTION OF THE

COURT)

Judgm entof 19 December 1978 103

64 . CASE CONCERNING UNITED STATES DIPLOMATIC AN D CONSULAR

STAFF IN TEHRA N (PROVISIONAL MEA SURES)

Order of 15 December 1979 106

65 . CASE CONCERNING UNITED STATES DIPLOMATIC AN D CONSULAR

STAFF IN TEHRAN

Judgment of 24 May 1980 106

66. INTERPRETATION OF THE AGREEMENT OF 25 MARCH 1951 BETWEEN

THE WHO AND EGYPT

Advisory Opinion of 20 December 1980 110


6/236

Page

6 7 . CASE CONCERNING THE CONTINENTAL SHELF (TUNISIA/LIBYAN ARAB

JAMAHIRIYA) (APPLICATION FOR PERM ISSION T O INTERVENE)

Judgment of 1 4 April 1981 113

6 8 . CASE CONCERNING DELIMITATION OF THE MARITIME BOUNDA RY IN

THE GULFO F MAINE AREA (CONSTITUTION O F CHAMBER)

O r d e r o f 2 J a n u a r y 1 9 8 2 115

6 9 . CASE CONCERNING THE CONTINENTAL SHELF (TUNISIA/LIBYAN ARAB

JAMAHIRIYA)

Judgment of 24 Februiiry 1982 116

7 0 .

APPLICATION FOR REVIEW OF JUDGEMENT NO. 273 OF THE UNITED

NATIONS ADMINISTRATIVE TR IBUNAL

Advisory Opinion of 2 0 July 1982 118

7 1 . CASE CONCERNING THE CONTINENTAL SHELF (LIBYAN ARAB

JAMAHIRIYA/MALTA) (APPLICATION FOR PERMISSION T O INTERVENE)

Judgment of 2 1 March 1984 123

7 2 . CASE CONCERNING MILITARY AN D PARAMILITARY ACTIVITIES IN

AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF

AMERICA) (PROVISIONAL MEASURES)

Order

of 10 May 1984 125



AMERICA) (DECLARATION O F INTERVENTION)

Order

of 4 October 19 84 .... . 128

7 4 . CASE CONCERNING DELIMITATION OF THE MARITIME BOU NDAR Y IN

T H E

GULF

O F

MAINE AREA

Judgment of 1 2 October 1984 130



AMERICA) (JURISDICTION AND ADMISSIBILITY)

Judgment of 2 6 November 1984 141

7 6 . CASE CONCERNING THE CONTINENTAL SHELF (LIBYAN ARAB

JAMAHIRIYA/MALTA)

Judgment of 2 June 1985 147

7 7 . APPLICATION FOR REVISION A ND INTERPRETATION OF THE

JUDGMENT OF 24 FEBRUARY 1982 IN THE CASE CONCERNING THE

CONTINENTAL SHELF (TUNISIA/LIBYAN ARAB JAMAHIRIYA)


7 8 . CASE CONCERNING THE FRONTIER DISPUTE (BURKINA FASO/

REPUBLIC

O F

MALI) (PROVISIONAL MEASURES)

O r d e r o f 1 J a n ua r y 1 9 8 6 16

7 9 . CASE CONCERNING THE MILITARY AN D PARAMILITARY ACTIVITIES IN


AMERICA) (MERITS)

J u d g m e n t o f 2 7 J u n e 1 9 8 6 16

8 0 . CASE CONCERNING THE FRONTIER DISPUTE (BURKINA FASO/

REPUBLIC O F MALI)


8 1 . APPLICATION FOR REVIEW OF JUDGEMENT NO. 333 OF THE UNITED


Advisory Opinion of 2 7 May 1987 181

8 2 . APPLICABILITY OF THE OBLIGATION TO ARBITRATE UNDER SECTION

21 OF THE UNITED NATIONS HEADQUARTERS AGREEMENT OF 26 JUNE

1947

Advisory Opinion of 26 April 1988 188

8 3 . CASE CONCERNING BORDER AND TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HOND URAS) (JURISDICTION AN D ADMISSIBILITY)

Judgment of 2 0 December 1988 192

8 4 . CASE CONCERNING ELETTRONICA SICULAS.P.A.(ELSI)

Judgment of 2 0 July 1989 197

8 5 . APPLICABILITY OF ARTICLE VI, SECTION 2 2, OF THE CONVENTION ON

T H E PRIVILEGES AN D IMMUNITIES O F T H E UNITED NATIONS

Advisory Opinion of 15 December 1989 204

vi


7/236

toge

86 . CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989 (GUINEA-

BISSAU v. SENEGAL)

Order

of

2

March 1990 210

87 .

CASE CONCERNING THE LAN D, ISLAND AN D MARITIME FRONTIER

DISPUTE (EL SALVADOR/HONDURAS) (APPLICATION FOR PERMISSION

TO

INTERVENE)

Judgment of 13 September 1990 212

88 .

CASE CONCERNING PASSAGE THROUGH THE GREAT BELT (FINLAND v.

DENMARK) (PROVISIONAL MEASURES)

Order of

29

July 1991 218

89 .

CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989 (GUINEA-

BISSAU v. SENEGAL)

Judgment o f

12

November 1991 220

vn


8/236

FOREWORD

The International Court of Justice was founded as the prin-

cipal judicial organ of the United N ations on 2 6 June 19 4S,

when its Statute was adopted in San Francisco at the same

time as the Charter of the Organization and annexed to it as

an integral part. The Statute of the Court is based very

closely on the one that had governed the work of the Court's

predecessor, the Permanent Court of International Justice,

wh ich, though provision for its foundation had been m ade in

the Covenant of the League of Nation s, had never become an

organ of the Leagu e.

While the International Court of Justice is endowed with

the independ ence nece ssary to its judicial role and, in accord-

ance with its Statute, has its seat in The Ha gue, hence at som e

distance from the daily bu siness of the other main organs, its

integration into the United Nations system is underscored in

the Charter not only by the definition of its contentious and

advisory functions in Chapter XIV, but also by references in

Chapter VI, concerning the pacific settlement of disputes,

which in Article 33 mentions judicial settlement in general

and in Article 3 6 enjoins the Security C ounc il to bear in mind

that legal disputes between States should as a general rule be

referred to the Cou rt.

It is therefore fitting that the Un ited N ation s Secretariat, in

collaboration with the Registry of the Court, should from

time to time issue publications designed to increase public

aware ness of w hat the Court is and do es or facilitate acces s to

its jurisprud ence. T hes e joint efforts are esse ntial, in particu-

lar, under the auspices of the United Nations Programme of

Assistance in the Teaching, Study, Dissemination and Wider

Appreciation of International Law.Inthe past, through coop -

eration with the Department of Public Information of the

United Nations Secretariat, these joint efforts have resulted

in the publication in several lang uages o f a general work enti-

tled The Internationa l Court of Justice and of a booklet

containing succinct case summaries of a purely factual

nature. Both of these publications are updated from time to

time, and a growing demand for them has necessitated regu-lar reprinting.

In recent years, Governments have shown an increasing

awareness of the Court's potential and brought it more cases

than ever before. A rekindling of interest am ong scho lars and

the public has been no less noticeable. It is plainly desirable

that this positiv e trend should continue to be sustained by the

provision of accessible information at different levels of

technicality. Here two unfulfil led needs have become

increasingly evident. In the first place, the Court's publica-

tions, in the official series which cover all its judicial work

and are the sole au thentic source of such inform ation, appear

exclusively in its only two official and working languages:

English and French. A ccess to the full contents of the Court's

decisions is thus denied to persons unable to understand

either of those languages. In the second place, members of

the public, journalists, lawyers, d iplomats, or even special-

ists in international law without ready access to those series

are ill served if they require something more detailed than the

minimal summaries gathered into the booklet mentioned

above,useful as those may be in providing a historical bird's-

eye view of the Court's decisions. For the person in quest of

deeper understanding, the problem is compounded by the

fact that with the passage of time, the more a body of case-

law is built up and consolidated, the more important it

becomes to trace the thread of principle in the reasoning

behind each decision.

Furthermore, over the years, a growing number of delega-

tions have expressed a wish , both in the Sixth Committee of

the General Assemb ly and in the Advisory Comm ittee of the

United Nations Programme of Assistance in the Teaching,

Study, Dissemination and Wider Appreciation of Interna-

tional La w, t o the effect that the jurisprudence o f the Interna-

tional Court of Justice should be the subject of a wider dis-

semination in all the official languages of the Organization.

This concern found its way into paragraph 14 of General

Assembly resolution 44/28 of 4 December 1989 and chapter

IV, paragraph 8, of the "Programme for the activities to be

commenced during the first term (1990-1992) of the United

Nations Decade of International Law" contained in the

annex to General Assembly resolution 45/40 of 28 Novem-

ber 1990, which reads in part:

"It would be co nducive to the teaching and dissemina-

tion of international law if all judgments and advisory

opinions of the International Court of Justice were avail-

able in all official languages of the United Nations."

As a result of a cooperation effort by the Court's Registry

and the Codification Division of the Office of Legal Affairs,

and in the framework of the United Nations Programme of

Assistance in the Teaching, Study, Dissemina tion and Wider

Appreciation of International Law and of the United Nations

Decade of International Law, it has proved possible to take a

significant step toward closing the information gap men-

tioned abo ve by preparing the present com pilation of the ana-

lytical summaries of the Court's decisions, to be issued now

in all the official languages of the United Nations. These

summaries are based closely on the texts which have, over

the years, been regularly prepared by the Registry of the

Court for information purposes and incorporated into press

comm uniqus issued in English and French at the time of the

pronouncement of the judgment or advisory opinion con-

cerned.

Given the ad hoc origin of the summ aries and the changes

in approach or style which have inevitably occurred over a

period of more than 40 years, this compilation cannot be

expected to possess a comp letely hom ogeneo us character. It

was nevertheless decided, in the interest of authenticity, to

reduce editing to a minimum. The reader, it is hoped, will

find the publication no less useful.

In the United Nations booklet mentioned above, which

gives brief accounts of the Court's decisions, the advisory

opinions are treated separately, in a chapter apart from that

on contentious decisions. While that arrangement has the

merit of underlining, for the general public, the distinction

between judgments delivered in cases between States and

advisory decis ions rendered at the request of an international

organization or organ thereof, it has been felt preferable in

the present publication, which is aimed at perhaps not quite

as broad a readership, strictly to observe the chronology of

the Court's decisions, in order to present as faithful and

unbroken a picture as possible o f the evolution of the Court's

jurisprudence. The summary of each advisory opinion is

therefore found in its chronological position.

It will be no ticed that a number of Orders of the Court are

also summarized in their chronological position. These are

Orders of a more substantive nature, concerning for example

requests for provisional measures or the constitution of a

Chamb er. Other Orders of the Court or its President, m ost o f

which concern such procedural matters as the fixing of time-

limits, have not yet been made the subject of analysis and are

therefore not covered. '

1


9/236

It

is

to be noted that, while the summaries have been pre-

pared

by

the

Court's Registry over

the years

for

public

infor-

mationpurposes, theydo notinvolvetheresponsibility of the

Courtitself. They therefore cannot be quoted againstthe

actual text of the judgments, advisory opinionsororders,of

which they do not constitute an interpretation.

The present publication, which condensesin asingle and

handy volume die case-law of the Court for

tide

period 1948-

1991 andisintended to be updated ona

regular

basis in sub-

sequent years, con stitutes a new addition to the Publications

programme of the Office of Legal Affairs, Codification D ivi-

sion , under the budgetary subprogramme "Making interna-

tional law and United Nations legal activities more accessi-

ble",

which already includes the

United Nations

Legisla tive

Series,

the

United Nations Juridical Yearbook

and the

Reports of

International

Arbitra l Awa rds.

All these publications also perform animportant rolein

fulfilling thegoals of the United Nations Programmeof

Assistance in the Teaching, Study, Dissemination and Wider

Appreciation of International Law.

It is to be

noted

that the present

publication would

not

have

been possible without the close cooperation betweenthe

International CourtofJusticeand itsRegistryandvarious

units of the United Nations Secretariat, such a s the Codifica-

tionDivision oftheOffice of Legal Affairsand itssecretariat

for the ProgrammeofAssistance, the OfficeofProgramme

Planning, Budget and Finance and the Department

of

Con-

ference Services and its Publications Board.

NOTES

'Specific information on the compos ition, governing texts and work-

ings of d ie Court is contained

in

l.C.J.Acts and

Documents

No. 5and, each

year, in

an

l.C.J.

Yearbook

covering the twelve m onths

up

to the end of the

previousJuly. The Court also subm itsanannual report issuedasa document

of

the

General Assembly of the United Nations.

Chapter VIIofeachl.C.J.

Yearbook

explains the different seriesofthe

Court'spublicationsandlists the modes of citation ofthedecisio ns rendered

both by the present Court

and

by its predecessor.


10/236

1. CORFU CHANNEL CASE (PRELIMINARY OBJECTION)

Judgment of 25 March 1948

This case was brought before the Court on May 22nd,

1947, by an Application fi led by the Government of the

United K ingdom of G reat Biitain and Northern Ireland insti-

tuting proceedings against the Government of the People's

Republic of Albania; on December 9th, 1947, the Albanian

Government requested the Court to declare: the Application

inadmissible.

In its judgment the Court rejected the Albanian objection

and fixed the time-limits for the subsequent proceedings on

the merits.

The judgment w as rendered by fifteen votes to one; the dis-

senting judge appended to the judgment a statement of the

reasons for which he was unable to concur in it. Se ven o f the

Mem bers of the Court, w hilst concurring in the judgment of

the Court, appended a statement of supplementary

considerations.

In its judgment, the Court recalls the conditions in which

the case was referred to it and, in the first place, the incident

whic h gave rise to the dispute.

On October 22nd, 1946, two British destroyers struck

mines in Albanian territorial waters in the Corfu Channel.

The explosio ns caused damag e to the vessels and loss of l ife.

Holding that the responsibil ity o f the Albanian G overnment

was involved, the Government of the United Kingdom, fol-

lowing upon diplomatic correspondence with Tirana, sub-

mitted the matter to the Security Council. That body invited

Albania, which is not a Member of the United Nations, to

participate in the discussio ns, o n condition that she a ccepted

all the obligations of a Member in a similar case. Albania

accepted and, on April 9th, 1947, the Security Council

adopted a resolution recommending the Governments con-

cerne d imm ediately to refer the dispute to the Court in accord-

ance w ith the provisions of its Statute.

Thereupon the Government of the United Kingdom

addressed an Application to the Court asking for a decision to

the effect that the Albanian Government was internationally

responsible for the consequences of the incidents referred to

above and that it must make reparation or pay comp ensation.

The Application adduced various provisions of the Charter,

inter alia, Article 25 (which provides that Mem bers agree to

accept and carry out the decisions o f the Security Co uncil) ,

on which it founded the jurisdiction of the Court.

On July 23rd, 1 947 , the Albanian Government deposited

with the Reg istry of the Court a letter dated July 2nd in wh ich

it expressed the opinion that the Application of the United

Kingdo m w as not in conformity w ith the Security C ouncil 's

recommendation of April 9th, 1947, because the institution

of proceedings by unilateral application was not justified by

the Charter, by die Statute or by general international law.

Nev ertheless , i t fully accepted the Security Co uncil 's recom-

mendation profoundly convinced of the justice of its case and

resolved to neglect no opportunity of giving evidence of its

devotion to the principles of friendly collaboration between

nations and of the pacific settlement of disputes, it was pre-

pared, notw ithstanding the irregularity in the action taken by

the United Kingdom Government, to appear before the

Court. It made, howev er, m ost explicit reservations respect-

ing the manner in wh ich the case had been brought before the

Court and more especially respecting the interpretation

which the Application sought to place on Article 25 of the

Charter with reference to the binding character of the Secu-

rity Council's recommendations. It emphasized that its

acceptance of the Court's jurisdiction for this case could not

constitute a precedent for the future.

Follow ing upon the deposit of the Albanian G overnm ent's

letter, an Order was made fixing the time-limits for the pre-

sentation of a Memorial by the Government of the United

Kingdom and of a Counter-Memorial by the Albanian Gov-

ernment. Within the time-limit fixed for the latter, the Alba-

nian Government submitted a "preliminary objection to the

Application on the ground of inadmissibil ity". The Court

was requested, in the first place, to place on record that, in

accepting the Security Council 's recommendation of April

9th, 194 7, the Albanian Governm ent had only undertaken to

submit the dispute to the Court in accordance with the prov i-

sions of the Statute and, in the second place, to give judg-

ment that the Application of the United King dom was inad-

missible, because it contravened the provisions of Articles

40 and 36 of the Statute.

Having thus indicated the circumstances in which it is

called upon to adjudicate, the Court proceeds to consider the

submissions o f the Albanian preliminary objection.Itp laces

on record, as requested by the Albanian Government, that

the obligation incumb ent upon that Gov ernm ent as a result of

its acceptan ce of the Security Co unc il's recomm endation

could only be carried out in accordance with the provisions of

the Statute. It points out, how ever, that Albania had subs e-

quently contracted other obligations, the date and exact

scope of which it establishes later on in the Judgment.

The Court next turns to the second submission. It appears

to constitute an objection on the ground of the ina dmissibility

of the A pplication in that it refers to Article 4 0 o f the Statute:

accordingly it seems to relate to a procedural irregularity

resulting from the fact that the main proceedings were insti-

tuted by Application instead of by special agreement. But it

also cites Article 36 which relates exclus ively to the Court's

jurisdiction and the criticism , wh ich in the body of the obje c-

tion are directed against the Application, are concerned with

an alleged lack of compulsory jurisdiction.

This argument, w hich leave s the intention of the Albanian

Government somewhat obscure, may be explained by the

connection which the Government of the United Kingdom,

for its part, had made between the institution of proceedings

by Application, and the existenc e, al lege d by it , of a case of

compulsory jurisdiction. However, that may be, the Court

does not consider that it needs to expr ess an opinion on this

point, since it holds that the letter of July 2nd, 1947,

addressed by the A lbanian Go vernment to the Court, consti-

tutes a voluntary acceptance of its jurisdiction. This letter

removes all difficulties concerning both the question of the

admissibil ity of the Application and the question of the

Court's jurisdiction.

Wh en, in fact, the Albanian Governm ent states in its letter

that it is prepared, notwithstanding the "irregularity in the

action taken by the Government o f the United Kingdo m, to

appear before the Court" , it is clear that it wa ived the right to

adduce the objection that the Application was inadmissible.


11/236

And

when

it

expressly

refers to

"its acceptance of

the

Court's

jurisdiction to this case", these words constitute a voluntary

and indisputable acceptance o f theCourt'sjurisdiction.

Inthis conne ction, the Court recalls that while the consent

of the parties confers jurisdiction on the Court, such consent

need not be exp ressed in any special form . In particular, as

the Permanent Court of International Justice decided in

1928,theprevious formal conclusion of a special agreement

is unnecessary. In submitting the case by Application, the

UnitedKingdomgave theAlbanian Governmentanopportu-

nity

of accepting die jurisdiction o f

the

Court;

and this

accept-

ance was given in the Albanian letter of July 2nd, 1947.

Moreover, separate action of this kind wa s appropriateto the

respective positions of the Parties inacase where there is, in

fact, a claimant, the United Kingdom, and a defendant,

Albania.

Accordingly, the Court cannot hold to tie irregular the

institution of proceedings by Application which is not pre-

cluded by any provision.

It is true that in its letter of

July

2nd, 1947, the Albanian

Government made reservations respecting the manner in

which the case had been brought before the Court and the

interpretation which the U nited Kingdom sought to place on

Article 25 of

the

Charter with reference to the binding char-

acter of

the

Security Coun cil's recommendations. B ut it rests

with the Courttointerpret the letter, this interpretation being

binding upon the parties; and the Court holds that the reser-

vations containedinthe letterareintended onlytomaintain a

principle and to prevent the establishment of

a

precedent for

thefuture. Italso adds that itis clear that noquestiono f a prec-

edent could arise un less the letter signifiedin thepresent case

the acceptance of the Court's jurisdiction on the m erits.

For these reasons, the Court rejects the objection; and it

fixes time-limits for

the

subsequent pleadings on the merits.

2 .

CONDITIONS OF ADMISSION OF A STATE TO MEMBE RSHIP

IN THE UNITED NATIONS (ARTICLE 4 OF CH ARTER)

Advisory Opinion of 28 M ay 1948

The General Assembly of the United Nations asked the

Court togiveanadvisory opinionon the questionconcerning

the conditions of admission of

a

State to membership in the

United Nations (Article 4 of the Charter).

"Is a Member of the United Nations which is called

upon, in virtue of Article 4 of the Charter, to pronounce

itself by its vote, either in the Security Council or in the

General Assem bly,

on the

admission of

a State to

member-

ship in the United Nations, juridically entitled to make its

consent to the admission dependent on conditions not

expressly provided by paragraph1of the said Article? In

particular, can such a Member, while it recognizes the

conditions set forth in that provision to be fulfilled by the

State concerned, subject its affirmative vote to the addi-

tional condition that other States be admitted to member-

ship in the U nited N ations together

with

that Sta te?"

The Court answered this question in the negative by nine

votestosix. The six dissenting judges joinedto it astatement

of the reasons for their dissent. Two other Members of the

Courtwho agreed with the Opinion addeda further statement

of their view s.

The Opinionbegins bygivinganaccount oftheprocedure.

The request for an Opinion was notified to all signatories of

the Charter, i. e. , to all Members of

the

United. Na tions, w ho

were informed that the Court was prepared to receive infor-

mation from them. Accordingly, written statements were

sentinon behalf oftheGovernments of the follow ing States:

China, El Salvador, Guatemala, Honduras, India, Canada,

U.S.A., Greece, Yugoslavia, Belgium, Iraq, Ukraine,

U.S.S.R.,

Australia and Siam. Oral statements were made

by d ie representative oftheSecretary-General oftheUnited

Nations and byrepresentatives o ftheFrench, Yugoslav, Bel-

gian,

Czechoslovak

and

Polish Governments.

The Court then makes a few preliminary observations on

thequestion

itself.

Although the Members are bound to co n-

form to the requirements of Article 4 in giving their votes,

the

question does

not relate to the

actual vote ,

the

reasons for

which are a matter of individual judgment and are clearly

subject to no control, but to the statements made by a M em-

ber concerning the vote it proposes to giv e. The Court is not

called

upon to

define

the

meaning

and

scope of

the

conditions

in Article 4 of the Charter, on which admission is made

dependent.Itmust merely state whether these conditions are

exhaustive. If they aire, a Member is not legally entitled to

make admission depend on conditions not expressly pro-

vided in the article. T he meaning o f a treaty provision has

thusto be determined, w hich isaproblem of interpretation.

It was nevertheless contended that the question was not

legal,

but

political.

The

Court was unable

to

attribute

a

polit-

ical character to a request w hich, framed in abstract terms,

invites it to undertake an essentially judicial task by entrust-

ing it with the interpretation of a treaty provision. It is not

concerned with the motives which may have inspired

the request, nor has it to deal with the views expressed

in the Security C ouncil on the various cases with which the

Council dealt. Consequently, the Court holds itself to be

competent even to interpret Article 4 of the Charter; for

nowhereis anyprovisionto befound forbiddingit toexercise

in regard to this clause in a multilateral treaty, an interpreta-

tive function which falls within the normal exercise of its

judicial powers.

The Court then analyses Article 4, paragraph 1, of the

Charter.Theconditionsthereinenumeratedare

five:

acandi-

date must be

(1 )

a

State;

(2)

peace-loving; (3)

must

accept

the

obligations o f the Charter; (4) m ust be able

to carry

out these

obligations;

(5) must be w illingto doso.A ll these conditions

are subject to the judgment of the Organization, i.e., of the

Security Council and of the General Assembly and, in the

last

resort, of

the

Members of the Organization. A s

theques-

tion relates, not to the vote, but

to

the reasons which

a

Mem-

ber gives before voting, it is concerned with the individual

attitude of each Member called upon to pronounce itself on

the question of admission.


12/236

Are these conditions exhaustive? The English and French

texts of

the

provision have the same meaning: to establish a

legal rule wh ich, wh ile it fixes the conditions of adm ission,

determines also the reasons for which admission may be

refused. The term "Membership in the United Nations is

open to all other peace-loving States" indicates that States

which fulfil the cond itions stated have the qualifications req-

uisite for admission. The provision would lose its signifi-

cance if other conditions could be demanded. These condi-

tions are exhaustive, and are not merely stated by way of

information or example. They are not merely the necessary

conditions, but also

the

conditions which suffice.

It was argued that these conditions represented an indis-

pensable minimum in the sense that political considerations

could be superimposed on them, and form an obstacle to

adm ission. This interpretation is inconsistent w ith paragraph

2 of the Article, which provides for "the admission of any

such

State." It would lead to conferring on Members an

indefinite and practically unlimited power to impose new

conditions; such a power could not be reconciled with the

character of a rule which establishes a close connection

between membership and the observance of the principles

and obligations o f

the

Charter, and thus clearly constitutes a

legalregulationof the question of admission. If

the

authors

of the Charter had meant to leave Members free to import

into the application o f

this

provision considerations extrane-

ous to the principles and obligations of the Charter, they

would undoubtedly have adopted a different wording. The

Court considers the provision sufficiently clear; conse-

quently, it follows the constant practice of the Permanent

Court of International Justice

and holds that there

is

no

occa-

sion to resort to preparatory work to interpret its meaning.

Moreover, the interpretation give n by the Court had already

been adopted by the Security Council, as is shown in Article

60 o f the Council's R ules of Procedure.

It doesnot,

however, follow from

the

exhaustive character

of Article 4 that

an

appreciation is precluded of

such

circum-

stances of fact as would enable the existence of

the

requisite

conditions to be verified. The Article does

not

forbid the tak-

ing into account of

any

factor which it is possible reas ona bly

and in good faith to connect with the conditions laid dow n.

The taking into account of

such

factors is implied in the very

wide

and

elastic nature of

the

conditions. N orelevantpoliti-

cal factor, that is to say, none connected w ith the conditions

of

adm ission,

is excluded.

The conditions in Article 4 are exhaustive and no argu-

ment to the contrary can be drawn from paragraph 2 of the

Article which is only concerned with the procedure for

admission. Nor

can

an argument be drawn from the p olitical

character of the organs of the United Nations dealing with

admission. For this character cannot release them from

observance of the treaty provisions by w hich they are gov -

erned, when these provisions constitute limitations on their

power; this shows that there is no conflict between the func-

tions of the political organs and the exhaustive character of

the prescribed condition s.

The Court then passes to the second part of the question,

namely, whether a State, while it recog nizes that the condi-

tions set forth in Article 4 are fulfilled by a candidate, can

subordinate its affirmative vote to the simultaneous admis-

sion of other States.

Judged on the basis

of

the rule which the Court adopts in

its

interpretation of Article 4 , such a demand constitutes a new

condition;

for

it is

entirely unconnected

with those

prescribed

in Article

4.

It is

also

in an

entirely different category, sin ce it

makes admission dependent

not on the

conditions

required

of

applicants, but on extraneous considerations concerning

other States. It would, moreover, prevent each application

for admission from being examined and voted on separately

and on its own merits. This wo uld be contrary to the letter

and spirit of the Charter.

For

these

reasons,

the Court

answered

the question put to it

in the negative.

3 . CORFU CHANNEL CASE (MERITS)

Judgm ent of 9 April 1949

The Corfu Channel Case (United Kingdom of

Great

Brit-

ain and Northern Ireland-Albania) arose from incidents that

occurred on October 22nd, 1946, in the Corfu Strait: two

British destroyers struck mines in Albanian waters and suf-

fered damage, including serious loss of life. The United

Kingdom first seized the Security Council of the United

Nations which, by a Resolucin of April 9th, 1947, recom-

mended the two Governments to submit the dispute to the

Court. The United Kingdom accordingly submitted an

Application wh ich, after

an

objection

to its

admissibility

had

been

raised by

Albania, w as the subject of

a

Judgment,

dated

March 25th, 194 8, in which the Court declared that it pos-

sessed jurisdiction. On the same day the two Parties con-

cluded a Special Agreement: asking the Court to give judg-

ment

on

the following questions:

1. Is Albania responsible for

the

explosions,

and

is there

a

duty to

pay compensation?

2.

Has the United Kingdom violated international law

by the acts of

its

Navy

in

Albanian waters,firston the day on

which the explosions occurred and, secondly, on November

12th and

13th, 1946 , when it undertook

a

sweep of

the

Strait?

In its Judgment the Court declared on

the

first

question, by

11 votes against 5,

that

Albania was responsible.

In

regard

to the second question, it declared by 14 votes

against 2 that the United Kingdom did not violate A lbanian

sovereignty on October 22nd; but it declared unanimously

that it violated

that

sovereignty on November 12th/13th, and

that this declaration, initself, constituted appropriate satis-

faction.

The facts are as follows. On October 22nd, 1946, two

British cruisers and two destroyers, com ing from the south,

entered the North Corfu Strait. The channel they were fol-

lowing, which was

in

Albanian waters, was

regardedas

safe:

it had been swept in 1944 and check-swept in 194S. One o f

the destroyers, the

Saumarez ,

when off Saranda, struck a

mine

and was

gravely damaged. The

otherdestroyer,

the

V o-

lage,was sent

to her

assistance and, while tow ing her, struck

another mine and was also seriously damaged. Forty-five

British officers

and

sailors lost their lives ,

and

forty-two

oth-

ers were wounded.


13/236

An incident had already occurred in these waters on Ma y

15th,

1946: an Albanian battery had fired in the direction of

two British cruisers. The United Kingdom Government had

protested, stating that innocent passage through straits is a

right recognised by international law; the Albanian Gov ern-

ment had replied that foreign warships and merchant vessels

had no right to pass through A lbanian territorial waters wit h-

out prior authorisation; and on August 2 nd, 1946 , the United

Kingdom Government had replied that if, in the future, fire

was opened on a British warship passing through the chan-

nel, the fire would b e returned. Finally, on Septemb er 21 st,

1946, the Admiralty in London had cabled to the British

Commander-in-Chief in the Mediterranean to the following

effect: " Establishment o f diplomatic relations with Albania

is again under consideration by His Majesty's Government

who wish to know whether the Albanian Government have

learnt to behave themselves. Information is requested

whether any ships under your comma nd have passed through

the North Corfu Strait since Augu st and, if no t, whether yo u

intend them to do so shortly."

After the explosions on October 22nd, title United King-

dom Governm ent sent a Note to Tirana announcing its inten-

tion to swee p the Corfu Channel shortly. Hi e reply was that

this consent would n ot be given un less aie operation in ques-

tion took place outside Albanian territorial waters and that

any sw eep undertaken in those waters would be a violation of

Albania's sovereignty.

The sweep effected by the British Navy took place on

November 12th/13th 1946, in Albanian territorial waters and

within the limits of the channel previously swept. Twenty-

two moo red mines were cut; they were min es of the German

G Y t y p e .

The first question put by the Special Agreem ent is that of

Albania's responsibility, under international law, for the

explos ions on October 22n d, 1946.

The C ourt finds, in the first place, that the explosions were

caused by mines belonging to the minefield discovered on

November 13th. It is not, indeed, contested that this mine-

field had been recently laid; it was in the channel, which had

been previously swept and check-swept and could be

regarded as safe, that the explosions had taken place. The

nature of the damage shows that it was due to mines of the

same type as those swept on N ovem ber 13th; finally, the the-

ory that the mines discovered on Novem ber 13th might have

been laid after the explosion s on October 22n d is too improb-

able to be accepted.

In these circumstances the question arises what is the legal

basis of Albania's responsibility? The Court does not feel

that it need pay serious attention to the suggestion that Alba-

nia herself laid the mines: that suggestion w as only put for-

ward

pro memoria,

without eviden ce in support, and could

not be reconciled with the undisputed fact that, on the whole

Albanian littoral, there are only a few launches and motor

boats .

But the United Kingdom also alleged the connivance

of A lbania: that the minelaying had been canned out by t wo

Yugoslav warships by the request of Albania, or with her

acquiescence. The Court finds that this collusion has not

been proved. A charge of such exceptional gravity against a

State would require a degree of certainty that has not been

reached here, and the origin of the mine s laid in Albanian ter-

ritorial waters rem ains a matter for conjecture.

The United Kingdom also argued that, whoever might be

the authors of the min elaying, it could not have b een effected

without Albania's kn owle dge. True, the mere fact that mines

were laid in Albanian waters neither involves prima facie

responsibility nor does it shift the burden of

proof.

On the

other hand, the exclusive control exercised by a State within

its frontiers may mak e it imp ossible to furnish direct proof o f

facts which wo uld inv olve its responsibility in case of a vio-

lation of international law. The State which is the victim

must, in that case, be allow ed a m ore liberal recourse to infer-

ences o f fact and circumstantial eviden ce; such indirect evi-

dence must be regarded as of especial w eight when based on

a series of facts, linked together and leading logically to a

s ingle conclus ion.

In the present case t wo series of facts, w hich corroborate

one another, have to be considered.

The first relates to the Albanian Government's attitude

before and after the catastrophe. The laying of the min es took

place in a period in which it had show n its intention to keep a

jealous watch on its territorial waters and in which it was

requiring prior authorisation before they were entered, this

vigilance sometimes going so far as to involve the use of

force: all of which render the assertion of ignorance

a priori

improbable. Moreover, wh en the Albanian Government had

become fully aware of the existence of a minefield, it pro-

tested strongly against the activity of the British Fleet, but

not against the laying of the mines, though this act, if

effected without her consent, would h ave been a very serious

violation of her sovereignty; she did not notify shipping of

the existence o f the minefield, as wou ld be required by inter-

national law; and she did not undertake any of the measures

of judicial investigation which would seem to be incumbent

on her in such a case. Such an attitude could only be

explained if the Albanian Governm ent, while know ing of the

minelaying, desired the circumstances in which it was

effected to remain secret.

The second series of facts relates to the possibility of

observing the minelaying from the Albanian coast. Geo-

graphically, the channel is easily watched: it is dominated by

heights offering excellent observation points, and it runs

close to the coast (the nearest mine was 500 m. from the

shore).

The methodical and well-thought-out laying of the

mines com pelled the minelayers to remain from two to two -

and-a-half hours in the waters betw een Cape K iephali and the

St. George's Monastery. In regard to that point, the naval

experts appointed by the Court reported, after enquiry and

investigation on the spot, that they considered it to be ind is-

putable that, if a normal look-out was kept at Cape Kieph ali,

Denta Point, and St. George's Monastery, and if the look-

outs were equipped with binoculars, under normal weather

conditions for this area, the mine-laying operations must

have been noticed by these coastguards. The existence of a

look-out post at Denta Point was not established; but the

Court, basing itself on the declarations of the Albanian Gov -

ernment that lock-out posts were stationed at other points,

refers to the followin g co nclusion s in the experts' report: that

in the case of minelaying 1) from the North towards the

South, the minelayers would have been seen from Cape

Kiephali; if from South towards the North, they would have

been seen from Cape Kiephali and St. G eorge' s Monastery.

From all the facts and observations men tioned abo ve, die

Court draws the conclusio n that the laying o f the minefield

could not have been accomplished without the know ledge of

Albania. As regards the obligations resulting for her froth

this knowledge, they are not disputed. It was her duty to

notify shipping and especially to warn the ships proceeding

through the Strait on October 22nd of the danger to which


14/236

they were exposed. In fact, nothing was attempted by Alba-

nia

to

prevent

the

disaster,

and

these

grave

omissions involve

her international responsibility.

The Special Agreement asks the Court to say whether, on

this ground, there is "any duty" for Albania "to pay com-

pensation"

to the

United Kingdom. This

text

gave

rise

to cer-

tain

doubts:

could the Court not only d ecide on the principle

of compensation but also assess the amount? The Court

answered in the affirmative and, by a special Order, it has

fixed time-limits

to

enable the Parties

to

submit

their views

to

it on this subject.

The Court then goes on to the second question in the Spe-

cial Agreement: Did the United Kingdom violate Albanian

sovereignty on October 22nd, 1946, or on November

12th/13th, 1946?

The Albanian claim to make the passage of ships condi-

tional on a prior authorisation conflicts with the generally

admitted principle that States, in time o f p eace, have a right

to send their warships through straits used for international

navigation between two parts of the high sea s, provided that

the passage is inn ocent. The Corfu Strait belongs geographi-

cally to this category, even though it is only of secondary

importance (in the sense that it is not a necessary route

between two parts of the high seas) and irrespective of the

volume of traffic passing through it. A fact of particular

importance is that it constitutes a frontier between Albania

and Greece , and that a part of the strait is w holly within the

territorial

waters

of those

States.It is a

fact

that the two

States

did

not

maintain normal relations, Greece having made terri -

torial claims precisely with regard to a part of

the

coast bor-

dering the strait. H owever, the Court is of opinionthatAlba-

nia would have been justified in view of these exceptional

circumstances, in issuing regulations in respect of die pas-

sage,

but not in

prohibiting

such

passage

or in

subjecting

it to

the requirement of special authorisation.

Albania has denied that the passage on October 22 was

innocent. She alleges that it was a political m ission and that

the methods employedthe number of ships, their forma-

tion,

armament, manoeuvres, etc.showed an intention to

intimidate. The Court examined the different Albanian con-

tentions so far as they appeared relevant. Its conclusion is

that the passage was innocent both in its principle, since it

was designed to affirm a right which had been unjustly

denied, and in its methods of execution, which were not

unreasonable in view of

thefiring

from the Albanian battery

on May 15th.

As regards the operation on November 12th/13th, it was

executed contrary to the clearly expressed w ish of

the

Alba-

nian Government; it did not have the consent o f

the

interna-

tional mine clearance organizations; it could not

be

justified

as the exercise of therightof innocent passage. The United

Kingdom has stated that its object was to secure the mines as

quickly

as

possible

for fear

lest they should

be

taken away by

die authors of

the

minelaying or by the Albanian authorities:

this was presented either as a new and special application of

the theory

of intervention,

by means

of which

the

intervening

State was acting to facilitate the task of

the

international tri-

bunal, or as a method of self-protection or

self-help.

The

Court cannot

accept these lines of d efence.

It can

only regard

the alleged

right

of intervention

as the

manifestation o f

a

pol-

icy of force

which cannotfind

a place

in

international law. A s

regards the notion of

self-help,

the Court is also unable to

acceptit:between independent States therespectfor territo-

rial sovereignty is an essential foundation for international

relations. Certainly, the Court recognises the Albanian Gov-

ernment's complete failure to carry out its duties after the

explosions and the dilatory nature of

its

diplomatic Notes as

extenuating circumstances for

the

action of

the

United King-

dom. But,

to

ensure respect for international law , o f w hich it

is theorgan,the Court must declare

that

the action

of

the

Brit-

ish Navy constituted a violation of Albanian sovereignty.

This declaration is in accordance with the request made by

Albania through her counsel and is in itself appropriate

satisfaction.

To the

Judgment of the Court there

are

attached one d ecla-ration and the

dissenting

opinions

of

Judges

Alvarez, Winiar-

ski, Zoricic, Badawi Pasha, Krylov and Azevedo, and also

that of

Dr.

Ecer, Judge

ad hoc.


15/236

4 . REPARATION FOR INJURIES SUFFERED IN THE SERVICE

OF THE UNITED NATIONS

Advisory Opinion of 11 April 1949

Thequestion concerning reparation forinjuriessuffered in

the service of the United Nations, was referred to the Court

by the General Assembly of

the

United Nations (Resolution

of

the

General Assembly dated December 3rd, 1948) in the

following terms:

"I .

In the event ofanagent of the United Nations in

the performance of his duties suffering injury in circum-

stances involving the responsibility of a State, has the

United Nations, as an Organization, the capacity to bring

an

international claim against

the

responsiblede jure

or

de

facto government w ith a view to obtaining the reparation

due in respect of the damage caused (a) to the United

Nations,

(b )

to the victim or to persons entitled through

him?

"II.

In

the event of

an

affirmative reply on point

I

(b),

how is action by the United Nations to be reconciled with

such rights as may be p ossessed by the State of which the

victim isanational?"

With respect to questions I (a) and I

(b),

the Court estab-

lished a distinction according to whether the responsible

State is a Member or not of the United Nations. The Court

unanimously answered answered question I(a )in the affir-

mative. On question I(b ) the Court was of opinion by 11

votesagainst4that theOrganizationhas thecapacityto bring

an international claim whetheror notthe responsible State is

a

Member

of the United Nations.

Finally, on point II, the Court was ofopinionby 10 votes

against

S

that when the United Nations as an organization is

bringing a claim for reparation for damage caused to its

agent, it can only do so by basing its claim uponabreach of

obligationsdue to

itself;

respect forthis rulew ill usually

pre-

vent a conflict between the action oftheUnited Nations and

such

rights

as the agent's national State may possess; more-

over, this reconciliation must depend upon considerations

applicable

to each

particular case,

and upon

agreements

to

be

made between the Organization

and

individual States.

The dissenting Judges appended to the Opinion either a

declarationora statement of the reasons for which they can-

not concur in the Opinion of the Court. Two other Members

oftheCourt, w hile concurring in the O pinion, appended an

additional statement.

In its Advisory Opinion, the Court begins by reciting the

circumstances of the procedure. The Request for Opinion

was communicated to all States entitled to appear before the

Court; they were further informed that the Court was pre-

pared to receive information from them . Thus, written state-

ments were sent by the following States: India, China,

United States of A merica, United Kingdom o fGreatBritain

and Northern Ireland andFrance.Inaddition, oral statements

were presented before the Court by a representative of the

Secretary-General of the United Nations, assisted by coun-

sel, and by the representatives of the Belgian, French and

United Kingdom Governments.

Then the Court makes a number of preliminary observa-

tions on the question submitted to

it.

It proceeds to define cer-

tain terms in the Request for Opinion, then it analyses the

contents of the formula: "capacity to bring an international

claim." This capacity certainly belongs to a State. Does it

alsobelongto theOrganization? Thisistantamounttoasking

whether the Organization has international personality. In

answering this question which is not settled by the actual

termsoftheCharter,theCourt goe sonto con sider what char

acteristics the Charter was intended to give to the Organiza-

tion.

In thisconne ction, the Court statesthat theCharter

con-

ferred upon the Organization rights and obligations which

are different from those of

its

Members. The Court stresses,

further, the important political tasks o f the O rganization: the

maintenance of international peace and security. Accord-

inglytheCourt concludes thattheOrganization possessing a s

it does rights and obligations, has at the same time a large

measure of international personalityand thecapacitytooper-

ate upon an international plan e, although it i s certainly not a

super-State.

The Court then examines the very heart of the subject,

namely, whether the sum of the international rights of the

Organization comprises the right to bring an international

claimtoobtain reparation fromaState in respect of the dam-

age caused by the injury

of

an agent

of

the

Organization

in

the

course of the performance o f

his

duties.

On the first point, I(a),of the Request for Opinion the

Court

unanimously

reaches

the

conclusion

that the

Organiza-

tion has the capacity to bring an international claim against a

State (whether a M ember or non-member) fordamageresult-

ing fromabreach by that State ofitsobligations towards the

Organization. Th e Court points out that it is not called upon

to determine the precise extent of the reparation which the

Organization wouldbe entitled to

recover;

themeasure of the

reparation should depend upon

a

number of factors which the

Court gives as exa mples.

Then the Court proceeds to examine question I

(b),

namely, whether theUnitedNations,as anOrganization, has

the capacity to bring an international claim with a view to

obtainingthereparation dueinrespect ofthedamage caused,

not to the Organization

itself,

but to the victimor topersons

entitled through him .

In dealing with this point the Court analyses the question

of diplomatic protection of nationals.The Court pointsout in

this connection that really only the Organization has the

capacity to present a claim in the circumstances referred to,

inasmuchas at the basiso f any international claimtheremust

be a breach by the defendant State of

an

obligation towards

the Organization. In the present case the State of which the

victim isanational couldnot complainofa breachofanobli-

gation towards

itself.

Here the obligation is assumed infavour of

the

Organization. However, the Court admits that

the analogy o f the traditional rule of d iplomatic protection o f

nationals abroad doesnot initself justifyanaffirmative reply.

In

fact,

there exists nolink o f nationalitybetweenthe Organi-

zation and its agents. This is a new situation and it must be

analysed. Do the provisions of the Charter relating to the

functions oftheOrganization imply that thelatteris empow-

ered to assure its agents limited protection? These powers,

whichareessentialtothe performance of the functions of the

Organization, must be regarded as a necessary implication


16/236

arising from the Charter. In discharging its functions, the

Organization may find it necessary to entrust its agents with

important missions to be performed in disturbed parts of the

world. T hese agents must be ensured of effective protection.

It is only in this way that the agent will be able to carry out

his duties satisfactorily. The Court therefore reaches the con -

clusion that the Organization has the capacity to exer-

cise functional protection in respect of its agents. The situa-

tion is comparatively simple: in the case of Member States,

for these have assumed various obligations towards the

Organization.

But what is the situation when a claim is brought against a

State which is not a Member o f the Organization? The Court

is of opinion that the Members of the United Nations created

an entity possessing objective international personality and

not merely personality recognized by them alone. As in the

case of QuestionI

(a),

the Court therefore answers Question I

(b ) in the affirmative.

Question N o. II of the General Assem bly refers to the rec-

onciliation of action by the United Nations with such rights

as may be possessed by the State of which the victim is a

national. In other words, what is involved is possible com pe-

tition between the rights of diplomatic protection on the one

hand and functional protection on the other. The Court does

not state here which of these two categories of protection

should have priority and in the case of Member States it

stresses their duty to render every assistance provided by

Article 2 of the Charter. It adds that the risk of competition

between the Organization and the national State can be

reduced or eliminated either by a general convention or by

agreem ents entered into in each particular case, and it refers

further to cases that have already arisen in w hich a practical

solution has already been found.

Finally, the Court examines the case in which the agent

bears the nationality of the defendant State. Since the claim

brought by the Organization is not based upon the na tionality

of the victim but rather upon his status as an agent of the

Organization, it does not matter whether or not the State to

which the claim is addressed regards him as its own national.

The legal situation is not modified thereby.

5. CORFU CHANNEL CASE (ASSESSMENT OF AMOUN T

OF COM PENSATION)

Judgment of

15

Decem ber 1949

In a Judgment given on April 9th, 1949, the Court held

Albania respon sible, under international law, for the explo-

sions which occurred on October 22nd, 1946, in Albanian

waters, and for the damage and loss of human life that

resulted to the United Kingdom . In the same Judgment, the

Court concluded that it had jurisdiction to assess the amount

of the compensation, but it was not able to do so immedi-

ately, as certain information was lacking.

There were therefore further proceeding s to enable the two

parties to investigate, prove or dispute the sums claimed as

compensation.

During these proceedings, Albania announced its view

that, in accordance with the terms of the Special Agreement

signed by the two parties, the Court had solely to consider the

question of principle whether Albania was, or was not,

obliged to pay compensation to the United Kingdom, and

that, in Albania's view, the Court had no jurisdiction to fix

what the amount of compensation should be. Consequently,

Albania decided not to take any further part in the proceed-

ings.

At a public hearing on November 17th, 1949, the Court,

after hearing the representatives of the United Kingdom,

ordered an exam ination of the figures and estima tes produ ced

by the United Kingdom to be entrusted to experts, owin g to

the technical nature of the question raised.

These experts, w ho were tw o specialists in naval construc-

tion and in warships, of Netherlands nationality, handed in

their report on Decemb er 2nd ; at a subsequent m eeting of the

Court, they answ ered questio ns put to them by certain Judges

who desired further enlightenment.

In the Judgment sum marized here the Court states that, as

the Albanian Government has failed to defend its case, pro-

cedure in default of appearance is brought into operation.

The Court having given a decision in its Judgment of April

9th that it has jurisdiction to assess the compensation, the

matter is

resjudicata

and no longer in discussion .

But even in procedure in default of appearance, the Court

is bound to satisfy itself that the claim is w ell foun ded in fact

and law.

The Court therefore considers successively the three heads

of compensation in the United Kingdom claim: for the

replacement of the destroyer

Saumarez,

which became a

total loss as the result of the explo sion s in the Corfu Ch annel;

for the damage s ustained by the destroyer

Volage;

and finally

in respect of the deaths and injuries of naval person nel.

On the first two heads o f the claim the Court states that, in

the view of the experts appointed by it, the figures given by

the United Kingdom Government m ay be held to be an exact

and reasonable estimate of the dam age su stained.

As regards the claim for compensation in respect of naval

personnel, the Court considers that the documents produced

by the United Kingd om G overnment are sufficient

proof.

The Court therefore g ives judgm ent in favour of the claim

of the United Kingdom and condemns Albania to pay to that

country a total compensation of 843,947.


17/236

6. COMPETENCE OF THE GENERAL ASSEMBLY FOR THE

ADMISSION OF A STATE TO TH E UNITED NATIONS

Advisory Opinion of 3 M arch 1950

The question concerning the competence of the General

Assem bly of the United Nations to admit a State to the United

Nations had been referred for an advisory opinion to the

Court by the Assembly in its Resolution dated November

22nd, 1949.

The question w as framed in the followin g terms:

"Can the admission of a State to membership in the

United Nations, pursuant to Article 4, paragraph 2, of the

Charter, be effected by a decision o f the General A ssem -

bly, when the Security Coun cil has made no recommend a-

tion for admission by reason of the candidate failing to

obtain the requisite majority or of the negative vote of a

permanent Member upon a resolution so to recomm end?"

The Court answered the question in the negative by twe lve

votes against two. The two dissenting JudgesJudge Alva-

rez and Judge A ze vedo each appended a statement of their

dissenting opinion to the Court's Opinion.

The R equest for Opinion called up on the Court to interpret

Article 4, paragraph 2, of the Charter. Before examining the

merits of the question, the Court considered the objections

that had been m ade to its doin g so , either on the ground that it

was not competent to interpret the Charter, or because of the

alleged political character of the q uestion.

So far as con cerns its com pet enc e, the Court referred to its

Opinion of M ay 28 th, 1948 , in whic h it declared that it could

give an opinion on any legal question and that there was no

provision which prohibited it from exercising, in regard to

Article 4 of the Charter, a multilateral treaty, an interpreta-

tive function falling w ithin the normal exercise of its judicial

pow ers. With regard to the second objection , the Court fur-

ther pointed ou t that it could not attribute a political character

to a Request which, framed in abstract terms, invited it to

undertake an essentially judicial task, the interpretation of a

treaty provision. There w as therefore no reason why it should

not answer the question put to it by the A ssemb ly.

That question envisaged solely the case in which the Secu -

rity Council, having voted upon a recomm endation, had con -

cluded from its vote that the recommendation was not

adopted because it failed to obtain the requisite majority, or

because of the negative vote of a permanent Member of the

Coun cil. It thus had in view the case in which the A ssemb ly

was confronted with the absence of a recommendation from

the Council. The Court was not asked to determine the rules

governing the Council's voting procedure or to examine

whether the negative vote of a permanent Member of the

Coun cil was effective to defeat a recommendation which had

obtained seven or more votes . Indeed , the text of the question

assumed in such a case the non-existence of a recommenda-

tion.

The question was therefore whether, in the absence of a

recommendation by the Cou ncil, the Assem bly cou ld make a

decision to admit a State.

The Court has no doubt as to the meaning of the relevant

clause: paragraph 2 of Article 4 of the Charter. Two things

were required to effect a dmission: a recommendation b y the

Council and a decision by the Assemb ly. Th e use in the arti-

c le of the words "recommendation" and "upon" implied the

idea that the recommendation was the foundation of the deci-

s ion.

B oth these acts were indispensable to form the "judg-

ment" of the Organization (paragraph1o f Article 4) , the rec-

ommendation being the condition precedent to the decision

by which the admission was effected.

Attem pts had been mad e to attribute a different mea ...ng to

this clause by invok ing the travauxprparatoires . But the

first duty of a tribunal which was called upon to interpret a

text was to endeavour to give effect to the words used in the

context in which they occurred, by attributing to them their

natural and ordinary meaning. In the present case, there was

no difficulty in ascertaining the natural and ordinary m eaning

of the words in question, and of givin g effect to them. H av-

ing regard to these considerations, the Court considered that

it was not permissible for it to resort to the

travaux pr-

paratoires .

The conclusions to which the Court was led by its exami-

nation of paragraph 2 of Article 4 were confirmed by the

structure of the Charter, and particularly by the relations

established between the General Assembly and the Security

Council. Both these bodies were principal organs of the

United Nations, and the Council was not in a subordinate

position . M oreover, the organs to wh ich Article 4 entrusted

the judgmen t of the Organization in matters of admission had

consistently recogn ised that admission co uld only b e granted

on the basis of a recommendation by the Council. If the

Assem bly had power to admit a State in the absence of a rec-

omm endation by the Cou ncil, the latter wou ld be deprived of

an important role in the exercise o f on e of the essential func-

tions of the Organization. Nor w ould it be possible to admit

that the absence of a recommendation was equivalent to an

"unfavourable recommendation" upon which the General

Assem bly cou ld base a decision to admit a State.

While keeping within the limits of the Request, it was

enoug h for the Court to say that nowh ere had the A ssemb ly

received the power to change, to the point of reversing, the

meaning of a vote by the Council. In consequence, it was

impossib le to admit that the Assem bly had power to attribute

to a vote of the Security Council the character of a recom-

mendation, when the Council itself considered that no such

recommendation had been made.

Such w ere the reasons which led the Court to reply in the

negative to the question put to it by the General A ssemb ly.

10


18/236

7. INTERPRETATION OF PEACE TREATIES WITH BULGARIA,

HUNGARY AND ROMANIA (FIRST PHASE)

Advisory Opinion of 30 March 1950

The question concerning the Interpretation of Peace Treat-

ies with Bulgaria, Hungary and Romania had been referred

to the Court for an advisory opinion by the General Assem-

bly of the United Nations (G.A. rsolution of 19 October,

1949).

By eleven votes to three the Court stated that disputes

existed with those countries subject to the provisions for the

settlement of disputes contained in the Treaties themselves;

and that the Governments of the three countries were obli-

gated

to

carry out

the

provisions of the A rticles of those Treat-

ies which relate to the settlement of disputes, including the

provisions for the appointment of their representatives to the

Treaty Commissions.

between the parties, the third mem ber of the Treaty Co mm is-

sions, were not submitted to the Court for an immediate

answer. The C ourt would have to consider them only if the

appointment of national members to the Comm ission had not

been effected w ithin one month after the delivery of the opin-

ion on Questions I and II.

The following are the circumstances in which the Court

was led to deliver its opinion:

In April, 1949 the question of the observance of human

rights in Bulgaria and Hungary having been referred to the

General Assembly, the latter adopted a resolution in which it

expressed its deep concern at the grave accusations made

against the Governments of Bulgaria and Hungary in this

connection, and drew their attention to their obligations

under the Peace Treaties which they had signed with the

Allied and Associated Powers, including the obligation to

co-operate in the settlement of

all

these questions.

On 22nd O ctober, 1949 the Assembly, confronted by the

charges made in this connection by certain Powers against

Bulgaria, Hungary and Romania, which charges were

rejected by the latter, and noting that the Governments of

these three countries had refused to designate their represen-tatives to the Treaty Comm issions for the settlement of dis-

putes on the grounds that they were not legally obligated to

do so, and deeply concerned with this situation, decided to

refer

the

following question

to

the International Court of

Jus-

tice for an Advisory O pinion:

I. Do the diplomatic exchanges between the three States

and certain Allied and Associated Powers disclose disputes

subject to the provisions for the settlement of disputes con-

tained in the Treaties?

II .

In the event of an affirmative reply, are the three

States obligated to carry out the provisions oftheArticles in

the Peace Treaties for the settlement of disputes, including

the provisions for the appointment of their representatives to

the Commissions?

III.

In the event of

an

affirmative reply to question II and

if within thirty days from the date when die Court delivered

its opinion the designation has not been made, is the

Secretary-General of the United Nations authorised to

appoint the third M ember of the Comm issions?

IV. In the event of an affirmative reply to Question III,

would a Commission so composed be competent to make a

definitive and binding decision in settlement ofadispute?

However, Questions III and IV which refer to a clause in

the Peace Treaties under which the S ecretary-General of the

United Nations is charged to appoint, failing agreement

In its Opinion the Court answered Questions I and II.

The Court first considered whether A rticle 2, paragraph 7

of the Charter, which preve nts the United N ations from inter-

vening in matters which are essentially within the domestic

jurisdiction of a State , barred it from delivering

an

Opinion in

the present case. It noted on the one hand that the General

Assembly justified the examination w hich it had u ndertaken

by

relying upon A rticle

55

of

the

Charter, which

states

that theUnitedNa tions shall promote universal respect for and observ-

ance of human rights and on the other that the request for an

Opinion did not call upon the Court to deal with the alleged

violations of the provisions of the Treaties concerning hum an

rights: the object of the Request is directed solely to obtain-

ing certain clarifications of a legal nature reg arding the a ppli-

cability of the procedure forthesettlement of disputesaspro-

vided for in the Treaties. The interpretation of

the

terms of a

Treaty for this purpose could not be considered as a question

essentially within the domestic jurisdiction of a State, it is a

question of international law which, by its very nature, lies

within, the comp etence of the Co urt.

The Court considered, on the other hand, wh ether the fact

that Bulgaria, Hungary and Romania had expressed their

opposition to the advisory proceedings should not determine

it, by the application of the principles which govern the func-

tioning of a judicial organ, to decline to give an answer. It

pointed out that contentious procedure resulting in a judg-

ment, and advisory procedure were different. It considered

that it had the power to examine w hether the circumstances

of each case were of such a character as should lead it to

decline to answer the Request. In the present case, which

was clearly different from the Eastern Carelian case (1923)

the Court held that it should not decline because the requ est

was made with a view to enlightening the General Assembly

on the applicability of the procedure for the settlement of

disputes, and the Court was not asked to pronounce on the

merits of these disputes. The Court gave an affirmative

answer to Question I, pointing out on the one hand that dis-

putes existed because certain charges had been brought

against certain States, which the latter rejected, and on the

other hand that these disputes were subject to the p rovisions

oftheArticles for the settlement of disputes contained in the

Peace Treaties.

Taking up Question I I, the Court determined its meaning

and pointed out that it referred solely to the obligation upon

Bulgaria, Hungary and Romania to carry out the Articles of

the Peace Treaties concerning the settlement of disputes,

including the obligation to appoint their representatives to

the Treaty Com missions. The Court found that all the condi-

tions required for the commencem ent of the stage of the set-

11


19/236

tlement of

disputes

by the Com missions, had been fulfilled.

Consequently,itgaveanaffirmativeanswer toQuestion II.

The Opinion of the Court was delivered in public, the

Secretary-General of the United Nations and the States sig-

natories to

the Treaties

having been duly notified. The text of

theconclusions oftheOpinion wa s cabled to those signatory

States which were not representedatthe Hearing.

Judge Azevedo, whilst concurring in the Opinion,

appended to it his individual opinion. Judges Winiarski,

Zoricic and Krylov, considering that the Court should have

declined to giv e an Opinion, appended to the Opinion state-

ments of

their

dissenting opinion.

8. INTERNATIONAL STATUS OF SOUTH -WEST AFRICA

Advisory Opinion of

11

July 1950

The question con cerning the International States o f South

West Af