V. Legal Questions

A. THE AMBATIELOS CASE (GREECE VS. THE UNITED KINGDOM)

On 19 May 1953, the International Court of tribunal for arbitration. The Court said that both Justice delivered its Judgment in the Ambatielos the United Kingdom and Greece had rested their case (Merits: Obligation to Arbitrate), between cases on the Declaration of 1926 which reads as Greece and the United Kingdom. follows: These proceedings had been instituted by an "It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of Application by the Hellenic Government, which, to-day's date does not prejudice claims on behalf of having taken up the case of one of its nationals, private persons based on the provisions of the Anglo- the shipowner Nicolas Ambatielos, had prayed Greek Commercial Treaty of 1886, and that any dif- the Court to declare that the claim which the ferences which may arise between our two Governments latter had made against the Government of the as to the validity of such claims shall, at the request of either Government, be referred to arbitration in United Kingdom should be submitted to arbitra- accordance with the provisions of the Protocol of tion in accordance with Anglo-Greek Agreements November 10th, 1886, annexed to the said Treaty." concluded in 1886 (Treaty and Protocol) and in The Protocol of 1886 referred to in the Dec- 1926 (Declaration). Following a preliminary ob- laration of 1926 contains, inter alia, the following jection lodged by the United Kingdom, the Court provision: found that it had jurisdiction to adjudicate on the question by a Judgment delivered on 1 July "Any controversies which may arise respecting the 1 interpretation or the execution of the present Treaty, 1952. or the consequences of any violation thereof, shall be The Court, which was presided over by the submitted, when the means of settling them directly by amicable agreement are exhausted, to the decisions Vice-President, held public sittings from 23 to 28 of Commissions of Arbitration, and the result of such and on 30 March 1953. It included on the Bench arbitration shall be binding upon both Governments." Professor Jean Spiropoulos, appointed by the The Court stated that the Declaration of 1926 Hellenic Government to sit as judge ad hoc. The was agreed upon for the purpose of safeguarding Court heard, on behalf of the Hellenic Govern- the interests of the parties with respect to claims ment, Henri Rolin and Sir Frank Soskice, Counsel, on behalf of private persons based on the Treaty and on behalf of the United Kingdom Govern- of 1886, for which, on the termination of that ment, G. G. Fitzmaurice, Assistant Agent and Treaty, there would have been no remedy in the Counsel, J. E. S. Fawcett, Counsel, and W. V. J. event of the failure of the parties to reach amic- Evans, Agent. able settlements. The Agreement of 1926, the Court further stated, related to a limited category 1. Judgment of the Court of differences which the Agreement of 1886 pro- vided should be settled by arbitration, namely In its Judgment,2 the Court defined the ques- differences as to the validity of claims on behalf tion before it as follows: was the United Kingdom of private persons based on the Treaty of 1886. under an obligation to accept arbitration of the But in both cases the parties had been prompted difference between that Government and the by the same motives and had adopted the same Hellenic Government concerning the validity of method of arbitration. the Ambatielos claim, in so far as this claim was Referring to its Judgment of 1 July 1952, based on the Treaty of 1886? The distinctive the Court stated that in that Judgment the merits character of the case, the Court stated, was that, of the Ambatielos claim were found to be out- quite unlike the Mavrommatis Palestine Conces- sions, decided by the Permanent Court of Inter- 1 3 I.C.J. Reports 1952, p. 28; see also Y.U.N., 1952. national Justice in 1924, the Court was called pp. 769-75. upon to decide, not its own jurisdiction, but 2 l.C.J. Reports 1953, p. 10. whether the dispute should be referred to another 3 P.C.I.J. Series A, No. 2, August 30th 1924. Legal Questions 661 side the Court's jurisdiction, which consisted only based on the Treaty of 1886; it must have been of deciding whether the United Kingdom was their intention that the genuineness of the treaty under an obligation to accept arbitration. The basis of any claim, if contested, should be authori- limited jurisdiction of the Court was to be clearly tatively decided by the Commission of Arbitra- distinguished from the jurisdiction of the Com- tion, together with any other questions relating mission of Arbitration, the Court said. The Court, to the merits. therefore, must refrain from pronouncing final The Court considered that, for the purpose of judgment on any question of law or fact falling determining the obligation of the United King- within the merits; its task would have been com- dom to accept arbitration, the expression "claims pleted when it had decided whether the difference based on the Treaty of 1886" could not be under- with regard to the Ambatielos claim was a dif- stood as meaning claims actually supportable ference as to the validity of a claim on behalf of under the Treaty. Of course, the Court declared, a private person based on the provisions of the it was not enough that a claim should have a Treaty of 1886 and whether, in consequence, there remote connexion with the Treaty for it to be was an obligation binding on the United King- based on it; on the other hand it was not neces- dom to accept arbitration. sary that an unassailable legal basis should be The Court said that the words "based on the shown for an alleged treaty violation. In its con- Treaty of 1886" indicated the character which text, the expression meant claims depending for the Ambatielos claim had to possess in order that support on the provisions of the Treaty of 1886, it might be the subject of arbitration in accord- so that the claims would eventually stand or fall ance with the Declaration of 1926. They did not according as the provisions of the Treaty were mean, the Court held, that the Ambatielos claim construed in one way or another. Consequently, had to be found to be validly based on the Treaty the Court stated, in respect of the Ambatielos of 1886. If such a meaning had been intended claim, it was not necessary for the Court to find by the Court, it would not have decided that it that the Hellenic Government's interpretation of was without jurisdiction to pass on the merits of the Treaty was the only correct interpretation; it the claim. was enough to determine whether the arguments advanced by the Hellenic Government in support The Hellenic Government had contended that of its interpretation were of a sufficiently plausible the Ambatielos claim did not "prima facie appear character to warrant a conclusion that the claim to be unconnected with the provisions of the was based on the Treaty. In other words, if an Treaty of 1886". In the view of the United King- interpretation appeared to be an arguable one, dom, it was necessary for the Court to determine, whether or not it ultimately prevailed, then there as a substantive issue, whether the claim was were reasonable grounds for concluding that the actually or genuinely based on the Treaty. The claim was based on the Treaty. The validity of Court was unable to accept either of those con- the respective arguments would, the Court held, tentions. The first, it declared, would constitute be determined by the Commission of Arbitration an insufficient reason for the obligation to accept in passing on the merits of the difference. arbitration; the second would lead to the substi- tution of the Court for the Commission of Arbi- The Court then proceeded to deal with two of tration in passing on a point which constituted the contentions of the Greek Government which one of the principal elements of the claim. The were contested by the United Kingdom. One was Court held that the Commission of Arbitration based on the most-favoured-nation clause in article alone had jurisdiction to adjudicate on the merits; X of the Treaty of 1886 which would permit and it could not be assumed that the Agreement Greece to invoke the benefits of treaties con- of 1926 contemplated that the verification of the cluded by the United Kingdom with third States allegations of fact should be the duty of the Com- and thus obtain redress for a denial of justice to mission, while the determination of the question Mr. Ambatielos—if the facts alleged were true. whether the facts alleged constituted a violation The other contention rested on an interpreta- of the Treaty of 1886 should form the task of tion of the provision in article XV of the same another tribunal. Treaty which states, inter alia, that "the subjects At the time of the signature of the Declaration of each of the two Contracting Patties in the of 1926, the Judgment of the Court stated, the dominions of the other shall have free access to British and Greek Governments had never in- the Courts of Justice..." The Greek Govern- tended that one of them alone or some other organ ment contended that Mr. Ambatielos did not should decide whether a claim was genuinely enjoy "free access" to the Courts because of the 662 Yearbook of the United Nations

"withholding" by the executive branch of the the right conferred on them by Article 57 of the United Kingdom Government of evidence con- Statute, appended to the Judgment a statement of sidered to be vital to his case. their dissenting opinion. A summary of the state- With regard to the first contention, the United ment follows. Kingdom contended that article X of the Treaty Before declaring a State to be bound to submit of 1886, dealing with matters of navigation and a dispute to the decision of an international tri- commerce, could not be invoked to claim the bunal, the Permanent Court of International Jus- benefits of provisions in other treaties concern- tice and the present Court had always considered ing judicial proceedings, which, in the Treaty of it necessary to establish positively, and not merely 1886, formed the subject of a separate article. on prima facie or provisional grounds, that the The United Kingdom also advanced a number State in question had in some form given its of other arguments designed to show that the consent to that procedure, the dissenting opinion facts alleged by the Hellenic Government, if true, stated. Since there was nothing in the Declara- would amount to a denial of justice, and that an tion of 1926 to indicate an intention that prima allegation of denial of justice must be based on facie considerations should be regarded as suf- general principles of international law and could ficient, it was the opinion of the dissenting judges, not be premised on article X of the Treaty of based on the principle referred to above, that the 1886 dealing with commerce and navigation. United Kingdom could only be held to be under an obligation to accept the arbitral procedure by As regards the second contention of the Greek application of the Declaration of 1926 if it could Government based on article XV of the 1886 be established to the satisfaction of the Court that Treaty (see above), the United Kingdom Govern- the difference as to the validity of the Amba- ment insisted on a limited interpretation of the tielos claim fell within the category of differences term "free access" and maintained that Mr. Am- in respect of which the United Kingdom had batielos must be considered as having been fully consented to arbitration. accorded that right when he was permitted to appear in the English courts for the prosecution The claims referred to by the Declaration of and defence of his rights on an equal footing 1926 were claims "based on the provisions of the with British subjects. Treaty of 1886". These words, it was stated, should be construed in their natural and ordinary Having regard to the contentions of the parties meaning, as had been said over and over again with respect to the scope and effect of the most- and, in particular, in the advisory opinion of the favoured-nation clause in article X of the Treaty Court on the competence of the General Assem- of 1886, as well as the divergence of views con- bly for the admission of a State to the United cerning the meaning of the expression "free access Nations.4 In the opinion of the dissenting judges, to the Courts of Justice" contained in article XV; the natural and ordinary meaning of those words and bearing in mind especially the interpretations was limited to claims whose legal support was of these provisions contended for by the Hellenic found in the provisions of the Treaty; that is, Government, the Court concluded that this was a claims whose validity should be appraised in the case in which the Hellenic Government was pre- light of these provisions. It excluded claims whose senting a claim on behalf of a private person support had to be found elsewhere. "based on the provisions of the Anglo-Greek Commercial Treaty of 1886". and that the differ- Thus, and by virtue of the express reference ence between the parties was the kind of differ- made by the Declaration of 1926 to the Treaty ence which, according to the Declaration of 1926, of 1886, a difference concerning a claim on be- should be submitted to arbitration. half of a private person came within the scope of the arbitration clause of the Declaration only Accordingly, by 10 votes to 4, the Court found if the examination of the claim demonstrated that that the United Kingdom was under an obliga- it fell within the framework of the Treaty. tion to co-operate with Greece in constituting a Commission of Arbitration, in accordance with Examining the origin of the claim, the dis- the Protocol of 1886, as provided in the Declara- senting judges noted that it had arisen from a contract between Mr. Ambatielos and the British tion of 1926. Ministry of Shipping for the sale of nine ships then under construction. Mr. Ambatielos had con- 2. Dissenting Opinion tended that the contract was not properly carried

Sir Arnold McNair, President, Judges Basde- 4 I.C.J. Reports, 1950, p. 4; see also Y.U.N., 1950, vant, Klaestad and Read, availing themselves of pp. 409-11. Legal Questions 663 out by the seller, but this question of the breach the case. The Treaty could have laid down certain of contract was not one which had to be decided requirements in this connexion, but it did not by international arbitration. It was submitted to do so. The free access clause in the Treaty was English courts by common accord of the parties. designed to ensure access to the courts, not to The Admiralty Court gave judgment against Mr. regulate the different question of the production Ambatielos, who appealed to the Court of Appeal, of evidence. but subsequently abandoned his appeal. The free access clause, the dissenting judges The present claim, it was stated, as formulated considered, did no more than provide for free by the Hellenic Government, related to the way access and for "national treatment" as regards in which justice was administered in the pro- conditions, restrictions, taxes and the employment ceedings in the English courts between Mr. Am- of Counsel. The complaint, as put before the batielos and the Board of Trade, as the successor Court in this case, did not allege that Mr. Am- to the Ministry of Shipping. It had been alleged, batielos was refused access to English courts, or on behalf of the Hellenic Government, that of- that he was denied "national treatment" as regards ficials of the Board of Trade wrongly failed to conditions, restrictions, taxes and the employment produce in the Admiralty Court all the evidence of Counsel. The Hellenic Government merely available and that this resulted in damage to alleged that the production of evidence was ef- Mr. Ambatielos. The Hellenic Government also fected in a manner which, in its opinion, was complained of the refusal by the Court of Appeal defective and detrimental to its national. Article of leave to Mr. Ambatielos to adduce new evi- XV of the Treaty, it was stated, was unconnected dence. The difference now existing between the with that complaint. If any legal rule had been parties, it was argued, was therefore concerned broken, it was not a rule contained in that article. with a claim based on alleged improper admini- stration of justice, in particular with regard to As regards the most-favoured-nation clause con- the production of evidence in the English courts. tained in article X of the Treaty, the dissenting The question before the present Court, therefore, judges held that it could not be extended to was to decide whether the matter of the complaint matters other than those in respect of which it thus relied upon fell within the provisions of the was stipulated, that is commerce and navigation. Treaty of 1886. For these reasons, the dissenting judges con- The relevant article of the Treaty of 1886 sidered that the Ambatielos claim did not fall (article XV) promised free access to the courts; within the category of claims in respect of which it said nothing with regard to the production of the United Kingdom had agreed to arbitration evidence, the dissenting judges stated. Questions by the Declaration of 1926. Consequently, in their as to the production of evidence were, it was opinion, the United Kingdom was not under an maintained, by their very nature, within the obligation to submit the claim to the arbitral province of the law of the Court dealing with procedure provided for in that Declaration.

B. THE MINQUIERS AND ECREHOS CASE (FRANCE VS. THE UNITED KINGDOM)

On 17 November 1953, the International Court Court, presided over by the Vice-President, heard of Justice delivered judgment in the Minquiers Sir Lionel Heald, G. G. Fitzmaurice, E. C. S. Wade, and Ecrehos case between France and the United and C. S. Harrison, appearing for the United Kingdom. Under a Special Agreement concluded Kingdom, and André Gros for France between France and the United Kingdom on 29 The case concerned two groups of islets lying December 1950, the Court was requested to between the British Channel Island of Jersey and "determine whether the sovereignty over the islets the coast of France. The Ecrehos lies 3.9 sea miles and rocks (in so far as they are capable of appropria- from the former and 6.6 sea miles from the latter. tion; of the Minquiers and Ecrehos groups belongs to The Minquiers group lies 9.8 sea miles from the United Kingdom or the French Republic". The pleadings were filed within the time limits 5 Order of 15 January, 1952, I.C.J. Reports 1952, fixed5 and subsequently twice extended at the p. 4. 6 6 Orders of 27 August 1952 and 29 January 1953, request of the parties. Public hearings were held I.C.J. Reports 1952, p. 173 and I.C.J. Reports 1953, between 17 September and 8 October 1953. The p. 4. 664 Yearbook of the United Nations

Jersey and eight miles away from the Chausey King of 5 July 1258, the Sub-Warden of the Islands, which belong to France. Islands was ordered "to guard the islands of Ger- nere and Geresey, and the king's other islands 1. Judgment of the Court in his keeping". In Letters Patent of the English King, dated 28 June 1360, it was provided that In its Judgment,7 the Court defined its task as the "keeper of the islands of Gerneseye, Jereseye, one of determining which of the parties had Serk and Aurneye, and other islands adjacent produced the more convincing proof of title to thereto" might have the keeping for a further one or the other group, or to both of them. period. The Court also referred to the Truce of Both parties claimed an ancient or original title London of 1471, which provided, in article 3, to both groups, which had always been main- that the King of France would not make any tained and never lost. Examining the titles in- hostile act against the Kingdom of England and voked by both parties, the Court stated that the other islands specially mentioned, including the United Kingdom derived its title from the con- Islands "of guernsey, Jersey and alderney [and] quest of England in 1066 by William, Duke of other territories, islands and lordships, which are, Normandy. This conquest united England with or will be, held and possessed by the said lord Normandy, including the Channel Islands, and King of England or by his subjects". Reference this union lasted until 1204 when King Philip was also made to a Papal Bull of 20 January Augustus of France drove the Anglo-Norman 1500, transferring the Channel Islands from the forces out of continental Normandy. But his at- Diocese of Coutances to the Diocese of Win- tempts to occupy the Islands were not successful, chester, which mentioned "the islands of Jersey and Guernsey, Chausey, Alderney, Herm and except for brief periods when some of them were taken by French forces. On this ground, the Court Sark". Two commercial Treaties of 1606 and 1655 said, the United Kingdom argued that all of the mentioned only Jersey and Guernsey, the Court stated. Channel Islands, including the Ecrehos and Min- quiers, remained, as before, united with England Basing itself on facts such as these, the Judg- and that this situation of fact was placed on a ment of the Court said, the United Kingdom legal basis by subsequent treaties concluded be- Government submitted the view that the Chan- tween English and French Kings. The French nel Islands were in the Middle Ages considered Government contended, for its part, that, after an entity, physically distinct from continental 1204, the King of France held the Minquiers Normandy, and that any failure to mention by and the Ecrehos, together with some other islands name any particular island in any relevant docu- close to the continent, and it referred to the same ment, while enumerating other Channel islands, mediaeval treaties as those invoked by the United did not imply that any such island lay outside Kingdom. that entity. The Court considered that, having The Court found that none of those treaties regard to the above-mentioned documents, and (Treaty of Paris of 1295, Treaty of Calais of particularly to the Charters of 1200 and 1203, 1360 and Treaty of Troyes of 1420) specified and in view of the undisputed fact that the whole which islands were held by the King of England of Normandy, including all the Channel Islands, or by the King of France. There were other docu- was held by the English King in his capacity as ments, however, which, the Court stated, provided Duke of Normandy from 1066 until 1204, there some indications as to the possession of the islets appeared to be a strong presumption in favour in dispute. The Court then referred to the Charter of the British view. If, the Court continued, the of 14 January 1200, by which King John of Ecrehos and the Minquiers were never specific- England granted to one of his Barons, Piers des ally mentioned in such enumerations, this was Préaux, the Islands of Jersey, Guernsey and Alder- probably due to their slight importance. The ney "to have and hold of us by service of three Court, however, felt that it could not draw from knights' fees". The Court also referred to the these considerations alone any definitive conclusion Charter of 1203 by which Piers des Préaux granted as to the sovereignty over the Ecrehos and the to the Abbey of Val-Richer "the island of Ecre- Minquiers since that question ultimately depended hou in entirety", stating that the King of England on the evidence of direct possession. "gave me the islands" (insulas mihi dedit). That, The French Government, the Court stated, saw the Court held, showed that he treated the Ecre- a presumption in favour of French sovereignty hos as an integral part of the fief of the Islands in the feudal link between the King of France, which he had received from the King. The Court 7 further stated that, in an Order from the English I.C.J. Reports 1953, p. 47. Legal Questions 665 overlord of the whole of Normandy, and the King ferred to the Charter of 1200 of the English of England, his vassal for those territories. In King, whereby he granted the fief of the Channel that connexion, it relied on a Judgment of the Islands to Piers des Préaux, and the Charter of Court of France of 1202, which condemned King 1203, whereby the latter in turn granted the John of England to forfeit all the lands which Ecrehos to the Abbey of Val-Richer. The Court he held in fee of the King of France, including considered that the Charter of 1203 showed that the whole of Normandy. But the United King- the Ecrehos were treated by Piers des Préaux as dom Government contended that the feudal title an integral part of his fief. of the French Kings in respect of Normandy was The Court then dealt with the French con- merely nominal. It denied that the Channel Islands tention that the grant of the Ecrehos, being in a were received in fee of the King of France by special form of feudal tenure called frankalmoin,8 the Duke of Normandy and contested the validity, had the effect of severing the feudal link between and even the existence, of the Judgment of 1202. Piers des Préaux and the Abbey, so that the Ecre- The Court considered that, without solving those hos no longer formed part of the fief of the Chan- historical controversies, it was sufficient to state nel Islands. The view submitted by the French that even if the Kings of France had an original Government was that the Ecrehos remained subject feudal title to the Channel Islands, such a title to the Duke of Normandy through the inter- must have lapsed, and could today produce no mediary of the Abbey of Val-Richer, which was legal effect unless it had been replaced by an- situated on the French mainland, and that, when other title valid according to the law of the time the King of France succeeded to the rights of of replacement; and that the legal effects attached the Duke after the occupation of continental Nor- to the dismemberment of the Duchy of Normandy mandy in 1204, the Abbey "passed under his in 1204, when Normandy was occupied by the protection, as did the Ecrehos, whose overlord he French, had been superseded by the numerous became". events which occurred in the following centuries The Court quoted mediaeval documents and the such as the many wars and peace settlements Charter of 1203 to show that the grant in frank- between the two countries. In the opinion of the almoin to an ecclesiastical institution did not Court, what was of decisive importance was not have the effect of severing feudal ties. It held indirect presumption deduced from events in the that the grantor continued to hold the Ecrehos as Middle Ages, but the evidence which related a part of his fief of the Channel Islands, with the directly to the possession of the groups of islets. Abbot of Val-Richer as his vassal and the King Before considering that evidence, the Court ex- of England as his overlord, and that the King amined certain questions concerning both groups. continued to exercise his justice and levy his The French Government contended that a con- rights in the land "so put in alms". The relevant vention on fishery, concluded in 1839, although mediaeval documents also showed, the Court held, it did not settle the question of sovereignty, did, that there was at that time a close relationship however, affect that question. It was said that the between the Ecrehos and Jersey. From the begin- groups in dispute were included in the common ning of the nineteenth century the connexion fishery zone created by the convention. It was became closer again because of the growing im- also said that the conclusion of that convention portance of oyster fishery. The Court attached precluded the parties from relying on subsequent probative value to various acts relating to the acts as manifestations of sovereignty. The Court exercise by Jersey of jurisdiction and local ad- said that it was unable to accept these contentions ministration and to legislation. It instanced crimi- because the convention dealt with waters only, nal proceedings concerning the Ecrehos, the levy- and not the common user of the territory of the ing of taxes on habitable houses or huts built on islets. In the special circumstances of the case, the islets since 1889 and the registration in Jersey and in view of the difference of opinion of the of contracts dealing with real estate on the parties concerning the "critical date" for allow- Ecrehos. ing evidence, the Court decided to consider all The Court then dealt with the fact invoked the acts of the parties, even those subsequent to by the French Government that in 1646 the 1886 and 1888 when a dispute as to sovereignty States of Jersey prohibited fishing at the Ecrehos over the groups first arose, unless any measure and the Chausey, and restricted visits to the Ecre- had been taken with a view to improving the hos in 1692. It mentioned diplomatic exchanges legal position of the party concerned.

8 The Court then examined the situation of each Tenure of land bestowed in alms to a religious group of islets. With regard to Ecrehos, it re- institution. 666 Yearbook of the United Nations

between the two Governments, in the beginning The United Kingdom Government had, on the of the nineteenth century, to which charts were other hand, contended that the Chausey Islands attached showing part of the Ecrehos as marked belonged to England until about 1764. The Court, outside Jersey waters and treated as res nullius.9 however, did not consider it necessary for deciding These acts showed, it was contended, that the the present case to determine at what time the Ecrehos were not considered as British territory. Chausey Islands became a French possession. The Court, however, did not consider that this It referred to a correspondence which took place was the necessary or the natural inference to be in 1784 between French authorities concerning an drawn from those facts. It referred to French application for a concession in respect of the Min- documents of the nineteenth century to show that quiers made by a French national. The Court held on several occasions the French Government had the view that this correspondence did not disclose not claimed sovereignty over the Ecrehos but had anything which could support the present French treated them as res nullius. It was in 1886, the claim to sovereignty, but that it revealed certain Court stated, that the French Government for fears of creating difficulties with the English the first time claimed sovereignty over the Ecrehos. Crown. The French Government further contended Appraising the relative strength of the opposing that, since 1861, it had assumed the sole charge claims in the light of these facts, the Court found of the lighting and buoying of the Minquiers, that sovereignty over the Ecrehos belonged to the without encountering any objection from the United Kingdom. United Kingdom. The Court found that the buoys placed by the French Government at the Min- With regard to the Minquiers, the Court noted quiers were placed outside the reefs of the group that in 1615, 1616, 1617 and 1692, the Manorial and purported to aid navigation to and from Court of the fief of Noirmont in Jersey exercised French ports and protect shipping against the jurisdiction in the case of wrecks found at the dangerous reef of the Minquiers. The French Minquiers. This exercise of jurisdiction had a ter- Government also relied on various official visits ritorial character, and showed that the Minquiers to the Minquiers and the erection in 1939 of a were considered to be a part of the manor. Other house on one of the islets with a subsidy from evidence, deriving from the end of the eighteenth the Mayor of Granville, in continental Normandy. century and the nineteenth and twentieth centu- The Court did not find that the facts invoked by ries, concerned inquests on corpses found at the the French Government were sufficient to show Minquiers, the erection on the islets of habitable that France had a valid title to the Minquiers. houses or huts by persons from Jersey, who paid all property taxes on that account, and the regis- As to the above-mentioned evidence from the tration in Jersey of contracts of sale relating to nineteenth and twentieth centuries, the Court real property in the Minquiers. These various stated that such acts could hardly be considered facts, the Court said, showed that the Jersey as sufficient evidence of the intention of that authorities had, in several ways, exercised ordinary Government to act as sovereign over the islets. local administration in respect of the Minquiers The Court referred to diplomatic exchanges during a long period of time and that, for a con- between the two Governments from the begin- siderable part of the nineteenth century and the ning of the nineteenth century which, it con- twentieth century, British authorities had exer- sidered, confirmed that view. Thus, by his Note cised State functions in respect of that group. of 12 June 1820 to the British Foreign Office, The Court then dealt with the French con- the French Ambassador in London transmitted tention that the Minquiers had been a dependency a letter from the French Minister of Marine of of the Chausey Islands, which, according to the 14 September 1819 to the French Foreign Min- view held by the Government of France, had ister, in which the Minquiers were stated to be always belonged to France, and which in 1022 "possédés par l'Angleterre"; in one of the charts were granted by the Duke of Normandy to the enclosed the Minquiers group was indicated as Abbey of Mont-Saint-Michel. The French Govern- being British. ment had referred to a Papal Bull of 1179 which In such circumstances and having regard to the confirmed that Abbey in all its possessions, among view expressed above with regard to the evidence which the Bull mentioned "totam insulam de produced by the United Kingdom Government, cause cum pertinentiis suis".10 But, the Court held, the Court was of the opinion that the sovereignty no deduction could be made from this general clause about appurtenances to the Chausey Islands 9 Property without an owner. 10 with regard to the status of the Minquiers. The whole island with all its appurtenances. Legal Questions 667 over the Minquiers belonged to the United King- which there was agreement between France and dom. England that the King of England should have The Court unanimously found that the sover- the islands which he "now holds". eignty over the islets and rocks of the Ecrehos In the light of these facts, Judge Basdevant and Minquiers group, in so far as they were cap- considered that the decision of the Court was able of appropriation, belonged to the United justified. Kingdom. Judges Basdevant and Carneiro, while concur- 3. Individual Opinion of ring in the decision of the Court for different Judge Carneiro reasons, appended to the Judgment statements of their individual opinions. Judge Alvarez, while Judge Levi Carneiro stated that his observations also concurring in the decision of the Court, made related to circumstances of a general character a declaration expressing regret that the Parties which, in his view, explained, confirmed, co- had attributed excessive importance to mediaeval ordinated and lent value to the acts of occupation evidence and had not sufficiently taken into which occurred at irregular intervals throughout account the state of international law or its pres- the centuries and were not all sufficiently signi- ent tendencies in regard to territorial sovereignty. ficant if taken individually. In his Opinion, he declared, he had taken as the criterion for the 2. Individual Opinion of decision the following rules which were laid Judge Basdevant down by the Permanent Court of International Justice in the case concerning the Legal Status of 12 In the statement of his individual opinion, Eastern Greenland: Judge Basdevant said that the Judgment of the "(a) the elements necessary to establish a valid Court of France of 1202 on which the French title to sovereignty are 'the intention and will to Government had relied (see above) could not exercise such sovereignty and the manifestation of State activity' (pp. 46 and 63); be validly invoked because the forfeiture which resulted from it affected the King of England "(b) in many cases international jurisprudence 'has been satisfied with very little in the way of the actual only in his capacity as Duke of Normandy and exercise of sovereign rights, provided that the other not in his capacity as King of England. As King State could not make out a superior claim. This is of England, he gained possession of the Chan- particularly true in the case of claims to sovereignty nel Islands and acquired title jure belli11 over over areas in thinly populated or unsettled countries' them on his own behalf—a title which was later (p. 46); confirmed by certain treaties. As regards the ques- "(c) it is the criterion of the Court in each indi- vidual case which decides whether sovereign rights tion whether that title extended specifically to have been displayed and exercised 'to an extent suf- the Ecrehos and the Minquiers, Judge Basdevant ficient to constitute a valid title to sovereignty' (pp. expressed the view that the closeness of the islets 63-64)". to Jersey confirmed the probability of the Eng- Applying these criteria, Judge Carneiro ex- lish King exercising sovereignty over them by amined, first, the fief of the Channel Islands. He virtue of his naval power. was unable to accept the view that the Duke of With regard to the letter of the French Min- Normandy, having become the King of England, ister of Marine of 1819 (see above) indicating and having retained the Channel Islands when the that the Minquiers were in British possession, King of France drove him out of continental Judge Basdevant considered that the words of the Normandy, "humbly remained subject to the suze- Minister of Marine did not amount to an admis- rainty of his adversary". The same considerations, sion and that he was not entitled to make such he said, made it impossible for him to suppose an admission. Judge Basdevant also expressed hesi- that the suzerainty of the King of France ex- tation in accepting the contention that the juris- tended to the Channel Islands, all the more so diction assumed by Jersey authorities in Ecrehos since he did not conquer them at the beginning and Minquiers amounted by itself to an assump- of the thirteenth century when he conquered tion of "territorial jurisdiction". However, because continental Normandy. of the absence of similar competing action on the Another factor in the present case, Judge Car- part of the French authorities, he considered, the neiro stated, was the continuous and keen interest hypothesis seemed reasonable that the King of 11 England had "held" the disputed islets within the By right of war. meaning of the Treaty of Calais of 1360, by 12 P.C.I.J. Series A/B, Fascicule No. 53. 668 Yearbook of the United Nations shown by England in the Channel Islands, in "Anglo-Norman Islands" or the Channel Islands contrast to a "certain indifference or a much less and concluded that "This archipelago which still lively and assiduous interest shown by France". bears this name today, with its natural unity, is Judge Carneiro also referred to a secret agree- indisputably English." ment signed by King John the Good of France With regard to historical facts, Judge Carneiro when the latter was taken prisoner by England concluded that the military victories of the Eng- after the battle of Poitiers in 1356. The agree- lish and their naval power allowed them to secure ment, he said, provided for the restoration to the the domination of the Channel Islands generally. English Crown of all the Duchy of Normandy It seemed "inconceivable" to him that England, "with all the cities, castles, dioceses, lands, regions having an important interest in the Channel and places lying within the Duchy itself". In his Islands and full domination over the sea, and Opinion, Judge Carneiro held that the absence of any express reference to the islands confirmed, possessing all the principal islands, should not, in general terms, that the islands were already without some special reason, have conquered and in the possession of England. If this had not retained the Ecrehos and the Minquiers or, rather, been so, England would not have lost the oppor- that it would have left them to France. tunity to have them included in the secret agree- The Opinion then referred to acts of occupa- ment. tion and other circumstances leading to the deci- The individual Opinion also took account of the sion by the Court with which Judge Carneiro natural unity of the archipelago known as the concurred.

C. THE NOTTEBOHM CASE (LIECHTENSTEIN VS. GUATEMALA)

The International Court of Justice on 18 negotiations with Liechtenstein, with a view to November 1953 handed down a Judgment13 on arriving at an amicable solution, either by way a Preliminary Objection of the Guatemalan Gov- of a direct settlement, by arbitration or by judi- ernment in the Nottebohm Case.14 In its Judg- cial settlement. In the present circumstances, how- ment, the Court stated that, in a communication ever, since the jurisdiction of the International signed by the Minister for Foreign Affairs of Court in relation to Guatemala "has terminated Guatemala, dated 9 September 1952, and ad- and because it would be contrary to the domestic dressed to the President of the Court, Guatemala laws of that country", Guatemala was unable to contended that the Court had no jurisdiction in appear and to contest the claim which had been the present case. Guatemala stated that it had made. recognized the compulsory jurisdiction of the By Order of 21 March 1953,15 the Court fixed Court, which it had accepted on 27 January 1947, a time limit for the presentation by Liechtenstein but not in an absolute and general form, since of a written statement of its observations in re- this would have implied an indefinite submission gard to the communication of Guatemala. In a to the detriment of its sovereignty. Guatemala statement filed on 21 May 1953, within the time stated further that the time limit provided for limit fixed by the Court, Liechtenstein requested in its declaration had expired on 26 January 1952, the Court to assume jurisdiction over the case and from that moment the International Court and to reject the contrary contentions of Guate- "has no jurisdiction to treat, elucidate or decide mala. Liechtenstein argued that the terms of the cases which would affect Guatemala", unless declaration made by Guatemala on 27 January Guatemala prolonged its duration of its declara- 1947, submitting to the jurisdiction of the Court tion with the Secretary-General of the United for a period of five years, were sufficient to confer Nations, or signed a special protocol of submis- jurisdiction upon the Court to hear and deter- sion with any other interested State. In the absence mine any case in which proceedings were insti- of these conditions, Guatemala was unable to tuted prior to midnight, 26 January 1952. appear before the Court in any given case. The Court, having taken into account the de- Guatemala went on to state that it had taken clared intention of the parties to seek a settle- note of the claim presented by Liechtenstein on supposed official acts to the alleged detriment of 13 l.C.J. Reports 1953, p. 111. F. Nottebohm, and that the Guatemalan Ministry 14 See also Y.U.N., 1951, p. 819. of Foreign Affairs was quite willing to begin 15 l.C.J. Reports 1953, p. 7. Legal Questions 669 ment of their dispute by negotiation, but not that, since Guatemala had accepted the jurisdic- having been informed that such negotiation had tion of the Court for a period ending on 26 achieved any result, fixed a hearing for 10 Novem- January 1952, the Court, after that date, no longer ber 1953. Guatemala was not represented at the had the power of administering justice with refer- hearing. ence to Guatemala. In its Judgment, the Court declared that it Once the Court has been regularly seized, the has been generally recognized that, in the absence Judgment declared, it must exercise its powers, of any agreement to the contrary, an international as defined in its Statute, and the regularity of the tribunal has the right to decide as to its own seizing of the Court by this Application was not jurisdiction, and has the power to interpret for this disputed. purpose the instruments which govern that juris- When an Application is filed at a time when diction. The judicial character of the Court and the law in force between the parties entails the the rule of general international law, the Court compulsory jurisdiction of the Court—which was stated, were sufficient to establish that it was the case between Guatemala and Liechtenstein on competent to adjudicate on its own jurisdiction 17 December 1951—the filing of the Application in the present case. Consequently, it had to as- is merely the condition required to enable the certain and decide whether the expiry on 26 clause of compulsory jurisdiction to produce its January 1952 of the declaration by which Guate- effects in respect of the claim advanced in the mala accepted the compulsory jurisdiction of the Application. Once this condition has been satis- Court had the effect of depriving the Court of fied, the Court must deal with the claim; it has its jurisdiction to adjudicate on the claim stated jurisdiction to deal with all its aspects, whether in the Application, of which it was seized on they relate to jurisdiction, to admissibility or to 17 December 1951 by Liechtenstein. the merits. An extrinsic fact such as the subse- At the time Liechtenstein filed its Application, quent lapse of the declaration, by reason of the the declarations by Guatemala and Liechtenstein expiry of the period or by denunciation, cannot, accepting the compulsory jurisdiction of the Court the Court declared, deprive the Court of the were both in force. Article 36 of the Court's jurisdiction already established. Statute and these declarations, said the Court, The Court therefore concluded that the expiry determined the law governing the Application. on 26 January 1952 of the five-year period for The Court held that, in accordance with these which Guatemala subscribed to a declaration ac- declarations, the Application was filed in suffi- cepting the compulsory jurisdiction of the Court cient time validly to effect the seisin of the Court. did not affect any jurisdiction which the Court Guatemala's declaration of 27 January 1947 made might have to deal with the claim presented in it clear, said the Court, that it was to last for the Application of which it was seized on 17 De- five years. There could be no doubt that an Ap- cember 1951 by Lichtenstein. plication filed after the expiry of this period For the above reasons, the Court on 18 Novem- would not have the effect of legally seizing the ber 1953 unanimously rejected the Preliminary Court. But neither in its declaration nor in any Objection presented by Guatemala and resumed other way did Guatemala then indicate that the the proceedings on the merits. The Court fixed time limit provided for in its declaration meant the following time limits for the rest of the that the expiry of the period would deprive the procedure: 20 January 1954 for the filing of the Court of jurisdiction to deal with cases of which Counter-Memorial of Guatemala; 25 February it had been previously seized. The Court could 1954 for the filing of the Reply by Liechtenstein; not therefore accept the conclusion of Guate- and 10 April 1954 for the filing of the Rejoinder mala in its communication of 9 September 1952 by Guatemala. D. OTHER CASES BEFORE THE INTERNATIONAL COURT OF JUSTICE 1. Case of the Monetary Gold Removed to adjudge and declare that France, the United from Rome in 1943 (Italy vs. Kingdom and the United States should deliver France, the United Kingdom to Italy any share of the monetary gold (re- and the United States) moved from Rome in 1943 by the Germans) that might be due to Albania, in partial satisfaction Italy on 19 May 1953 filed an Application with for the damage caused to Italy by an Albanian law the International Court of Justice asking the Court of confiscation of 13 January 1945. The Court 670 Yearbook of the United Nations was also asked to adjudge and declare that Italy's 2. "Electricité de Beyrouth" Company right to receive the said share of monetary gold Case (France vs. Lebanon) must have priority over the claim of the United France on 15 August 1953 filed with the Regis- Kingdom to receive the gold in partial satisfaction try of the International Court of Justice an Ap- of the Court's 1949 judgment in the Corfu Chan- plication instituting proceedings against Lebanon nel case. regarding a dispute between France and Lebanon Italy on 19 May 1953 deposited with the concerning certain concessions for the exploita- Registry of the International Court of Justice a tion of public services in Lebanon, granted by declaration accepting the jurisdiction of the Court Lebanon to the "Electricité de Beyrouth" Com- in respect of the dispute concerned. pany.

16 In its Application, France asked the Court to By an Order of 1 July 1953, the Court fixed adjudge and declare: the following time limits for the filing of Plead- (1) that the alterations of the situation of the ings: 2 November 1953 for a Memorial by Italy; "Societé Electricité de Beyrouth" made unilaterally and 2 March 1954 for Counter-Memorials by by Lebanon were contrary to the undertaking France, the United Kingdom and the United given in an Agreement of 24 January 1948 be- States. tween France and Lebanon; On 30 October 1953, Italy filed with the (2) that Lebanon had accordingly failed to Court's Registry a document requesting the Court carry out the obligation to negotiate with the con- to adjudicate on the preliminary question of its cessionary company which it assumed under that jurisdiction to deal with the merits of the claim agreement; and set forth in Italy's Application to the Court. (3) that Lebanon was under an obligation to

17 enter into negotiations with the "Societé Elect- By an Order of 3 November 1953, the Court ricité de Beyrouth" in respect of any modifica- suspended the proceedings on the merits of the tions of its situation and to make good the case in order to give Italy an opportunity to damage suffered until the date of the Court's present a written statement defining its position, decision as the result of the measures which had together with documents in support. The Court prevented the "Societé Electricité de Beyrouth" fixed 15 December 1953 as the time limit within from operating according to the rules which Le- which Italy was to present the statement and banon was under an obligation to observe. documents. It fixed 15 February 1954 as the By an Order18 of 20 October 1953, the Court time limit within which France, the United fixed the following time limits for the filing of Kingdom and the United States might present Pleadings: 18 January 1954 for the Memorial of written statements of their observations and sub- France, and 28 April 1954 for the Counter- missions. Memorial of Lebanon.

E. THE INTERNATIONAL LAW COMMISSION

The International Law Commission (ILC) held 1. Arbitral Procedure its fifth session at Geneva from 1 June to 14 a. DRAFT PREPARED BY THE COMMISSION August 1953. It elected for a term of one year In reviewing the draft on arbitral procedure the following officers: Chairman—J.P.A. François; drawn up at its previous session20 the Commission First Vice-Chairman—Gilberto Amado; Second had before it comments received from the Gov- Vice-Chairman—F.I. Kozhevnikov; Rapporteur— ernments of the following countries: Argentina, H. Lauterpacht.19 Belgium, Brazil, Chile, India, the Netherlands,

The General Assembly at its eighth session 16 l.C.J. Reports 1953, p. 37. discussed the Commission's report (A/2456) at 17 Ibid., p. 44. 18 Ibid., p. 41. the 381st to 389th meetings and 392nd to 394th 19 For members of the Commission serving during meetings of the Sixth Committee, from 5 to 18 1953, see Appendix I; for election of members to serve from 1 January 1954, see p. 19. and from 25 to 28 November 1953, and at the 20 For the text of this draft, see Y.U.N., 1952, 468th plenary meeting on 7 December. pp. 792-95. Legal Questions 671

Norway, Sweden, the United Kingdom and the to action taken in violation of its provisions. United States.21 Similarly article 10 of the draft included detailed In its report, the Commission stated that, in provisions for the drawing up of the compromis the light of the comments of governments and of by the arbitral tribunal in cases in which the par- the study of the provisional draft by its members ties had failed to reach agreement on the subject. in the intervening period between the fourth and Article 13 conferred upon the tribunal the power fifth sessions, it had adopted a number of sub- to formulate its rules of procedure whenever the stantial changes. The Commission also had before compromis, or its equivalent, failed to cover the it a detailed commentary prepared by the Secre- matter wholly or in part. tariat in accordance with a decision taken at its After giving several other examples of similar fourth session. provisions designed to ensure the effectiveness of the undertaking to arbitrate, the Commission The Commission explained that the term "ar- remarked that, while the provisions of the draft bitral procedure" as used in the title of the draft constituted procedural innovations and while, to referred to arbitral procedure in its wider sense, that extent, they fell within the orbit of develop- i.e., provisions for safeguarding the effectiveness ment of international law, they were not otherwise of arbitration engagements accepted by the par- innovations at all. ties, as well as clauses relating to the constitution and powers of the tribunal, the general rules of Dealing with the alterations which it made evidence and procedure, and the award of arbi- in the draft in the course of its fifth session, the trators. It had not considered it necessary to Commission stated that in many cases they had frame detailed rules of arbitral procedure, which been prompted by the observations of various were liable to vary according to the circumstances governments. Apart from the changes in drafting, of each arbitration. these alterations were aimed, in some cases, at simplifying the procedure previously formulated. The Commission emphasized that the present In other cases, further study had revealed certain draft on arbitral procedure had a dual aspect, rep- gaps which the Commission had now thought it resenting, on the one hand, a codification of exist- desirable to fill. For example, in article 3, which ing law on international arbitration, and, on the was concerned with the constitution of the arbi- other, a formulation of what the Commission tral tribunal, it was thought desirable to simplify considered to be desirable developments in the the procedure previously formulated and to shorten field. Thus the Commission had preserved all the delays by eliminating recourse to third States the traditional features of arbitral procedure, such for assistance in the constitution of the tribunal. as those provided for in article 1, relating to the The present draft, it was stated, completed the undertaking to arbitrate, in article 3, relating to scheme by making provision for the determina- the constitution of the tribunal, in articles 9 and tion of the composition of the tribunal by the 10, relating to powers and procedure of the President of the International Court of Justice, tribunal, and in other articles. or the judge acting in his place, in case the com- At the same time, the Commission had also promis was silent on the matter or if no agree- provided certain procedural safeguards for secur- ment could be reached between the parties on the ing the effectiveness, in accordance with the subject. Similarly, it was stated, the draft now original common intention of the parties, of the made provision for the designation of the presi- undertaking to arbitrate. For example, to prevent dent of the tribunal in cases in which the arbitra- one of the parties to an undertaking to arbitrate tors appointed by the parties failed to agree on his from avoiding arbitration by claiming that the appointment or if his appointment had not dispute in question was not covered by the under- materialized for some other reason. taking, article 2 provided for a binding decision With regard to the autonomy of the parties, by the International Court of Justice as to the the report of the Commission stated that, both arbitrability of the dispute. Similarly, in order at the fifth and at preceding sessions, the Com- to avoid the frustration that might be caused by mission was anxious to preserve what it considered one government withdrawing its arbitrator, ar- to be the essential feature of international arbi- ticles 5 to 8 provided for the immutability of the tration as distinguished from the more institution- tribunal once it had been formed, except in 21 specified cases. The article also created the The Government of Uruguay transmitted to the requisite machinery for the filling of vacancies Commission the comments of the Faculty of Law and Social Sciences in Montevideo and of the Uruguayan regardless of whether they arose in contingencies Institute of International Law. These comments were authorized in the draft or whether they were due received too late to be taken into consideration. 672 Yearbook of the United Nations alized procedure of international judicial settle- CHAPTER II ment. That essential feature, the Commission Consitution of the tribunal said, was the autonomy of the will of the parties both with regard to the choice of the arbitrators, Article 3 the law to be applied and the procedure of the 1. Within three months from the date of the re- quest made for the submission of the dispute to arbitral tribunal. That freedom, it said, was arbitration, or from the date of the decision of the limited only by the following basic considerations: International Court of Justice in pursuance of article first, that the procedure adopted must not be such 2, paragraph 1, the parties to an undertaking to as to frustrate the common intention of the par- arbitrate shall proceed to constitute the arbitral tri- bunal by appointing a sole arbitrator or several ties, as expressed in the original undertaking to arbitrators in accordance with the compromis referred arbitrate and, secondly, that there must be no to in article 9 or with any other instrument embodying impairment of the binding character of the award. the undertaking to arbitrate. Apart from these fundamental considerations, the 2. If a party fails to make the necessary appoint- procedure as formulated in the draft, the Commis- ments under the preceding paragraph within three sion stated, was, in general, of an optional charac- months, the appointment shall be made by the Pres- ident of the International Court of Justice at the ter. request of the other party. If the President is pre- To illustrate this feature of the draft, the Com- vented from acting or is a national of one of the parties, the appointments shall be made by the Vice- mission referred to a number of its provisions. President. If the Vice-President is prevented from For example, in article 2, providing for a de- acting or is a national of one of the parties, the ap- termination of the arbitrability of a dispute by pointments shall be made by the oldest member of the International Court of Justice, that procedure the Court who is not a national of either party. was made obligatory only "in the absence of agree- 3. The appointments referred to in paragraph 2 shall be made in accordance with the provisions of ment between the parties upon another procedure". the compromis or of any other instrument embodying Similarly, article 12 provided what would be the the undertaking to arbitrate. In the absence of such law to be applied by the arbitral tribunal; but this provisions the composition of the tribunal shall be was so only "in the absence of any agreement determined, after consultation with the parties, by the between the parties concerning the law to be President of the International Court of Justice or the judge acting in his place. applied". Such optional clauses, the Commission 4. In cases where provision is made for the choice said, had been included in a number of articles to of a president of the tribunal by the other arbitrators, ensure the autonomy of the parties. the tribunal shall be deemed constituted when the president is selected. If the president has not been The draft Convention submitted by the Com- chosen within two months of the appointment of the mission read as follows: other arbitrators, he shall be designated in the manner prescribed in paragraph 2. CHAPTER I Article 4 The undertaking to arbitrate 1. The parties having recourse to arbitration shall Article 1 constitute a tribunal which may consist of one or more arbitrators. 1. An undertaking to have recourse to arbitration 2. Subject to the circumstances of the case, the may apply to existing disputes or to disputes arising arbitrators should be chosen from among persons of in the future. recognized competence in international law. 2. The undertaking shall result from a written in- strument, whatever the form of the instrument may be. Article 5 3. The undertaking constitutes a legal obligation 1. Once the tribunal has been constituted, its com- which must be carried out in good faith. position shall remain unchanged until the award has been rendered. Article 2 2. A party may, however, replace an arbitrator ap- 1. If, prior to the constitution of an arbitral tri- pointed by it, provided that the tribunal has not yet bunal, the parties to an undertaking to arbitrate begun its proceedings. An arbitrator may not be disagree as to the existence of a dispute, or as to replaced during the proceedings before the tribunal whether an existing dispute is within the scope of the except by agreement between the parties. obligation to have recourse to arbitration, such pre- 3. The proceedings are deemed to have begun liminary question may, in the absence of agreement when the President or sole arbitrator has made the between the parties upon another procedure, be brought first order concerning written or oral proceedings. before the International Court of Justice by application of either party. The decision rendered by the Court Article 6 shall be final. Should a vacancy occur on account of death or 2. In its decision on the question, the Court may incapacity of an arbitrator or, prior to the commence- prescribe the provisional measures to be taken for ment of proceedings, the resignation of an arbitrator, the protection of the respective interests of the parties the vacancy shall be filled by the method laid down pending the constitution of the arbitral tribunal. for the original appointment. Legal Questions 673

Article 7 by application. If the other party refuses to answer 1. Once the proceedings before the tribunal have the application on the ground that the provisions above referred to are insufficient, the tribunal shall begun, an arbitrator may withdraw only with the con- sent of the tribunal. The resulting vacancy shall be decide whether there is already sufficient agreement filled by the method laid down for the original ap- between the parties on the essential elements of a pointment. compromis as set forth in article 9 to enable it to proceed with the case. In the case of an affirmative 2. Should the withdrawal take place without the decision the tribunal shall prescribe the necessary consent of the tribunal, the resulting vacancy shall be measures for the continuation of the proceedings. In filled, at the request of the tribunal in the manner the contrary case the tribunal shall order the parties provided for in paragraph 2 of article 3. to conclude a compromis within such time limit as Article 8 the tribunal will consider reasonable. 2. If the parties fail to agree on a compromis 1. A party may propose the disqualification of one within the time limit fixed in accordance with the of the arbitrators on account of a fact arising sub- preceding paragraph, the tribunal shall draw up the sequently to the constitution of the tribunal. It may compromis. propose the disqualification of one of the arbitrators on account of a fact arising prior to the constitution 3. If neither party claims that the provisions of the of the tribunal only if it can show that the appoint- undertaking to arbitrate are sufficient for the purposes ment was made without knowledge of that fact or of a compromis and the parties fail to agree on a as a result of fraud. In either case, the decision shall compromis within three months after the date on which be taken by the other members of the tribunal. one of the parties has notified the other of its readiness to conclude the compromis, the tribunal, at the request 2. In the case of a sole arbitrator the question of of the said party, shall draw up the compromis. disqualification shall be decided by the International Court of Justice on the application of either party. CHAPTER IV 3. The resulting vacancies shall be filled, at the request of the tribunal in the manner provided for in Powers of the tribunal paragraph 2 of article 3. Article 11

CHAPTER III The tribunal, which is the judge of its own com- petence, possesses the widest powers to interpret the The compromis compromis. Article 9 Article 12 Unless there are prior agreements which suffice for 1. In the absence of any agreement between the the purpose, the parties having recourse to arbitration parties concerning the law to be applied, the tribunal shall conclude a compromis which shall specify: shall be guided by Article 38, paragraph 1, of the Statute of the International Court of Justice. (a) The subject matter of the dispute; 2. The tribunal may not bring in a finding of non (b) The method of constituting the tribunal and liquet on the ground of the silence or obscurity of the number of arbitrators; international law or of the compromis. (c) The place where the tribunal shall meet. In addition to any other provisions deemed desirable Article 13 by the parties, the compromis may also specify the 1. All questions shall be decided by a majority of following: the tribunal. (1) The law to be applied by the tribunal, and 2. In the absence of any agreement between the the power, if any, to adjudicate ex aequo et bono; parties concerning the procedure of the tribunal, the (2) The power, if any, of the tribunal to make tribunal shall be competent to formulate its rules of recommendations to the parties; procedure. (3) The procedure to be followed by the tribunal; Article 14 (4) The number of members constituting a quo- The parties are equal in any proceedings before the rum for the conduct of the proceedings; tribunal. (5) The majority required for the award; Article 15 (6) The time limit within which the award shall 1. The tribunal shall be the judge of the admis- be rendered; sibility and the weight of the evidence presented to it. (7) The right of members of the tribunal to at- 2. The parties shall co-operate with the tribunal tach dissenting opinions to the award; in the production of evidence and shall comply with (8) The appointment of agents and counsel; the measures ordered by the tribunal for this purpose. The tribunal shall take note of the failure of any (9) The languages to be employed in the pro- party to comply with its obligations under this para- ceedings before the tribunal; and graph. (10) The manner in which the costs and expenses 3. The tribunal shall have the power at any stage shall be divided. of the proceedings to call for such evidence as it may Article 10 deem necessary. 1. When the undertaking to arbitrate contains pro- 4. At the request of either party, the tribunal may visions which seem sufficient for the purpose of a visit the scene with which the case before it is con- compromis and the tribunal has been constituted, nected, provided that the requesting party offers to either party may submit the dispute to the tribunal pay the costs. 674 Yearbook of the United Nations

Article 16 Article 26 The tribunal shall decide on any incidental or addi- The award is binding upon the parties when it is tional claims or counter-claims arising directly out of rendered. It must be carried out in good faith. the subject-matter of the dispute. Article 27 Article 17 Within a month after the award has been tendered The tribunal, or in case of urgency its president and communicated to the parties, the tribunal, either subject to confirmation by the tribunal, shall have the of its own accord or at the request of either party, power to prescribe, at the request of one of the parties shall be entitled to rectify any clerical, typographical or and if circumstances so require, any provisional measures arithmetical error or errors of the same nature apparent* to be taken for the protection of the respective interests on the face of the award. of the parties. Article 18 Article 28 When, subject to the control of the tribunal, the 1. Any dispute between the parties as to the mean- agents and counsel have completed their presentation ing and scope of the award may, at the request of of the case, the proceedings shall be formally declared either party and within one month of the rendering closed. of the award, be submitted to the tribunal which Article 19 rendered the award. A request for interpretation shall stay execution of the award pending the decision of The deliberations of the tribunal, which should be the tribunal on the request. attended by all of its members, shall remain secret. 2. If, for any reason, it is impossible to submit Article 20 the dispute to the tribunal which rendered the award, and if the parties have not agreed otherwise within 1. Whenever one of the parties does not appear three months, the dispute may be referred to the Inter- before the tribunal, or fails to defend its case, the national Court of Justice at the request of either party. other party may call upon the tribunal to decide in favour of its claim. CHAPTER VI 2. In such case, the tribunal may render an award if it is satisfied that it has jurisdiction and that the Revision claim is well-founded in fact and in law. Article 29 Article 21 1. An application for the revision of the award 1. Discontinuance of proceedings by the claimant may be made by either party on the ground of the party may not be accepted by the tribunal without discovery of some fact of such a nature as to have the consent of the respondent. a decisive influence on the award, provided that when 2. If the case is discontinued by agreement be- the award was rendered that fact was unknown to tween the parties, the tribunal shall take note of the the tribunal and to the party requesting revision and fact. that such ignorance was not due to the negligence of Article 22 the party requesting revision. 2. The application for revision must be made with- The tribunal may take note of a settlement reached in six months of the discovery of the new fact and by the parties. At the request of the parties, it may in any case within ten years of the rendering of the embody the settlement in an award. award. CHAPTER V 3. In the proceedings for revision the tribunal shall, in the first instance, make a finding as to the The award existence of the alleged new fact and rule on the admissibility of the application. If the tribunal finds Article 23 the application admissible it shall then decide on the The award shall be rendered within the period fixed merits of the dispute. by the compromis unless the tribunal, with the consent 4. The application for revision shall be made to of either party, decides to extend the period fixed in the tribunal which rendered the award. If, for any the compromis. reason, it is not possible to make the application to Article 24 that tribunal, the application may, unless the parties 1. The award shall be drawn up in writing. It shall agree otherwise, be made to the International Court contain the names of the arbitrators and shall be signed of Justice, by either party. by the president and the members of the tribunal who have voted for it. CHAPTER VII 2. The award shall state the reasons on which it is Annulment of the award based. 3. The award is rendered by being read in open Article 30 court, the agents of the parties being present or duly The validity of an award may be challenged by summoned to appear. either party on one or more of the following grounds: 4. The award shall immediately be communicated (a) That the tribunal has exceeded its powers; to the parties. (b) That there was corruption on the part of a Article 25 member of the tribunal; Subject to any contrary provision in the compromis, (c) That there has been a serious departure from any member of the tribunal may attach to the award a fundamental rule of procedure, including failure to his separate or dissenting opinion. state the reasons for the award. Legal Questions 675

Article 31 centred on articles 2, 3, 7, 8, 12, 28, 31 and 32, 1. The International Court of Justice shall be com- in which provision was made for referral to the petent, on the application of either party, to declare International Court of Justice of various questions the nullity of the award on any of the grounds set connected with the arbitration proceedings. It out in the preceding article. was argued that the procedure, if followed, would 2. In cases covered by paragraphs (a) and (f) of article 30 the application must be made within sixty introduce the International Court of Justice as days of the rendering of the award and in the case a court of revision and thereby detract from the covered by paragraph (b) within six months. efficacy of arbitration, an essential feature of 3. The application shall stay execution unless other- which was the finality of the award. The pro- wise decided by the Court. cedure proposed, it was argued, would also dis- Article 32 courage States from entering into arbitration agreements and would thus close an important If the award is declared invalid by the International Court of Justice, the dispute shall be submitted to a means for the peaceful settlement of disputes. new tribunal to be constituted by agreement of the Some of these representatives, in particular the parties, or, failing such agreement, in the manner representative of Poland, emphasized that the provided in article 3. draft, if accepted, would restrict the sovereignty of States by compelling them to appear before b. CONSIDERATION BY THE GENERAL the International Court of Justice against their ASSEMBLY AT ITS EIGHTH SESSION will. The Assembly's Sixth Committee decided to On the other hand, the representatives of consider first chapter II of the report of the Inter- Canada, China, Cuba, Greece, Mexico, the Nether- national Law Commission (A/2456), the chapter lands, New Zealand, Norway, Pakistan, Panama, dealing with arbitral procedure. It dealt with this Sweden and Uruguay, among others, expressed chapter at its 382nd to 389th meetings from 9 general support of the Commission's draft, which, to 18 November. they maintained, was aimed at making arbitration The Committee heard a statement by the Chair- effective and at preventing future failures to ful- man of the Commission, J.P.A. François, who fil the undertaking to arbitrate. Although, it was said that there was some degree of misunderstand- said, the draft convention would bring arbitration ing on the draft, which was merely a draft on closer to permanent jurisdiction, it would not arbitral procedure and not a draft convention on bind parties to enter into undertakings to arbi- arbitration. Some delegations, he said, seemed trate. As regards clauses providing for the inter- to be willing to accept the obligations suggested vention of the International Court of Justice, it in the draft in particular cases or in bilateral was argued that many agreements to arbitrate agreements, but were reluctant to conclude a already contained a voluntary undertaking provid- general convention. By subscribing to a conven- ing for such intervention. Further, the idea of tion, he continued, a State would not assume an arbitration did not exclude the possibility of leav- obligation to submit disputes to arbitration but ing to an impartial body acting independently of only to follow a certain procedure for the imple- the wishes of the parties the decision of such mentation of such an obligation when undertaken. questions as whether or not a dispute came within He considered that a general convention on arbi- the obligation to arbitrate, according to the terms tral procedure was needed in addition to bilateral of a particular arbitration treaty. treaties, and that it was illogical to accept pro- The representatives of the United Kingdom and cedures for arbitration in bilateral treaties but the United States, while paying tribute to the not in such a general convention. draft prepared by the Commission, reserved the During the debate in the Committee, the position of their Governments as regards a draft representatives of Afghanistan, Argentina, Bel- convention on arbitral procedure and as regards gium, Brazil, the Byelorussian SSR, Czecho- the holding of a conference to conclude such a slovakia, Egypt, France, Guatemala, India, Iran, convention. The representatives of Israel and the Poland, Syria and the USSR expressed the view United States expressed the view that the greatest that the draft presented by the International Law usefulness of the draft would be as a model for Commission was unsatisfactory in view of its procedural provisions in future arbitration agree- sharp deviation from the accepted norms of in- ments. ternational arbitration. The procedure envisaged In reply to some of the points raised during in the draft tended to convert arbitration into the debate, the Chairman of the International adjudication, it was maintained. Most of the Law Commission, Mr. François, issued an explana- criticism by these representatives of the draft tory statement (A/C.6/L.320). He conceded that 676 Yearbook of the United Nations a State in accepting article 2 of the draft pro- The Sixth Committee's report (A/2589) was viding for the submission to the International considered by the General Assembly at its 468th Court of Justice of the question of the arbitra- plenary meeting on 7 December 1953. The As- bility of the dispute, would be accepting a new sembly adopted the Committee's draft resolution, restriction of its sovereign rights, but he main- without discussion, by 45 votes to none, with 6 tained that that was the price it paid for the cer- abstentions, as resolution 797(VIII). It read: tainty that an undertaking to arbitrate would not "The General Assembly, be nullified by a disagreement between the parties "Noting the draft on arbitral procedure prepared by on that preliminary question. As regards the pro- the International Law Commission at its fifth session, visions in articles 2, 28, 29, and 31 for the inter- "Considering that the said draft includes certain im- vention of the International Court of Justice, Mr. portant elements with respect to the progressive devel- François stated that in none of the cases con- opment of international law on arbitral procedure, templated was the Court envisaged as entering into "Considering that, having regard to the importance the merits of a case or as rendering an arbitral of the topic, the governments of Member States should award. have an opportunity of making known their views on the draft on arbitral procedure in the light of the dis- If a final decision could not be taken by the cussion which has taken place at the current session General Assembly at its present session, he asked of the General Assembly, the Committee, in the interests of advancing the "1. Decides to transmit to Member States the draft work of codification, to consider resuming dis- on arbitral procedure prepared by the International cussion of the draft at the next session. Law Commission together with the observations made thereon in the Sixth Committee at the current session Two draft resolutions were introduced in the of the General Assembly, with a view to the submission Committee, one by Sweden (A/C.6/L.315) and by governments of whatever comments they may deem the other jointly by Argentina, Egypt, France, appropriate, if possible, before 1 January 1955; India and Syria (A/C.6/L.316). Since both were "2. Requests the Secretary-General to circulate to Member States any comments he may receive, and to similar in content, they were consolidated, by include the question in the provisional agenda of the agreement of the sponsors, into a single draft tenth session of the General Assembly." resolution sponsored by Argentina, Canada, Chile, Egypt, France, India, Sweden and Syria (A/C.6/- 2. Regime of the High Seas L.317). Under this draft resolution, the General As- a. DRAFTS PREPARED BY THE COMMISSION sembly noting the final draft of the International In connexion with its study of the topic Law Commission on arbitral procedure would: "regime of the high seas", the Commission exam- (1) decide to transmit it to Member States together ined once more, in the light of comments received with the observations made on the draft in the Sixth from governments, the provisional draft articles Committee with a view to the submission by govern- 22 ments of whatever comments they might deem ap- adopted at its third session. It invited J.P.A. propriate, if possible, before 1 January 1955; and François, special rapporteur on the regime of the (2) request the Secretary-General to circulate to high seas, to undertake a further study of this Member States any comments he might receive and to topic and to prepare a report on subjects within include the question in the provisional agenda of the this field which were not covered in his third and Assembly's tenth session. fifth reports (A/CN.4/51 & A/CN.4/69). At its 388th meeting on 17 November 1953, It adopted draft articles on the following sub- the Committee by 23 votes to 13, with 10 absten- jects: tions, adopted an oral Philippine amendment to (1) The Continental Shelf delete the word "final" from the preamble. By a roll-call vote of 35 to 8, it adopted a Cuban oral In considering the subject of the continental amendment to state that the draft included certain shelf, the Commission had before it a further important elements with respect to the progressive report from the special rapporteur Mr. J.P.A. development of international law on arbitral pro- François (A/CN.4/60) prepared after re-examina- tion in the light of observations from the Gov- cedure. ernments of the following countries: Belgium, The draft resolution, thus amended, was then Brazil, Chile, Denmark, Ecuador, Egypt, France, voted on by paragraphs, which were adopted in Iceland, Israel, the Netherlands, Norway, the votes ranging from 48 to none, with 2 abstentions, Philippines, Sweden, Syria, the Union of South to 43 to 5, with 3 abstentions. The draft resolu- tion was adopted, as a whole, by the Committee 22 For the Commission's work at its third session by 42 votes to none, with 9 abstentions. see Y.U.N., 1951, pp. 841-45. Legal Questions 677

Africa, the United Kingdom, the United States stances, the median line every point of which is equi- and Yugoslavia. The Commission adopted eight distant from the base lines from which the width of draft articles on the continental shelf which, it the territorial sea of each country is measured. 2. Where the same continental shelf is contiguous recommended, the General Assembly should adopt to the territories of two adjacent States, the boundary by resolution. The text of the draft articles fol- of the continental shelf appertaining to such States is, lows: in the absence of agreement between those States or Article 1 unless another boundary line is justified by special cir- cumstances, determined by application of the principle As used in these articles, the term "continental shelf" of equidistance from the base lines from which the refers to the sea-bed and subsoil of the submarine width of the territorial sea of each of the two countries areas contiguous to the coast, but outside the area cf is measured. the territorial sea, to a depth of two hundred metres. Article 8 Article 2 Any disputes which may arise between States con- The coastal State exercises over the continental shelf cerning the interpretation or application of these articles sovereign rights for the purpose of exploring and should be submitted to arbitration at the request of exploiting its natural resources. any of the parties. Article 3 (2) Fisheries The rights of the coastal State over the continental The Commission reconsidered in the light of the shelf do not affect the legal status of the superjacent observations of governments, articles on the re- waters as high seas. sources of the sea provisionally adopted at its Article 4 third session. It had before it the observations of The rights of the coastal State over the continental the Governments of the following countries: shelf do not affect the legal status of the airspace above Belgium, Brazil, Chile, Denmark, Ecuador, France, the superjacent waters. Iceland, the Netherlands, Norway, the Philippines, Article 5 Sweden, the Union of South Africa, the United Subject to its right to take reasonable measures for Kingdom and Yugoslavia. It adopted three draft the exploration of the continental shelf and the articles on fisheries covering the basic aspects of exploitation of its natural resources, the coastal State an international regulation of fisheries. The Com- may not prevent the establishment or maintenance of submarine cables. mission recommended that the Assembly adopt the Article 6 articles by resolution and enter into consultation with the Food and Agriculture Organization of the 1. The exploration of the continental shelf and the exploitation of its natural resources must not result United Nations with a view to the preparation of in any unjustifiable interference with navigation, fish- a draft convention incorporating the principles ing or fish production. adopted by the Commission. The text of the draft 2. Subject to the provisions of paragraphs 1 and 5 articles on fisheries follows: of this article, the coastal State is entitled to construct and maintain on the continental shelf installations Article 1 necessary for the exploration and exploitation of its A State whose nationals are engaged in fishing in natural resources and to establish safety zones at a any area of the high seas where the nationals of other reasonable distance around such installations and to States are not thus engaged, may regulate and control take in those zones measures necessary for their fishing activities in such areas for the purpose of protection. protecting fisheries against waste or extermination. If 3. Such installations, though under the jurisdiction the nationals of two or more States are engaged in of the coastal State, do not possess the status of islands. fishing in any area of the high seas, the States con- They have no territorial sea of their own and their cerned shall prescribe the necessary measures by agree- presence does not affect the delimitation of the terri- ment. If, subsequent to the adoption of such measures, torial sea of the coastal State. nationals of other States engage in fishing in the area 4. Due notice must be given of any such installa- and those States do not accept the measures adopted, tions constructed, and due means of warning of the the question shall, at the request of one of the interested presence of such installations must be maintained. parties, be referred to the international body envisaged 5. Neither the installations themselves, nor the said in article 3. safety zones around them may be established in narrow Article 2 channels or on recognized sea lanes essential to In any area situated within one hundred miles from international navigation. the territorial sea, the coastal State or States are entitled to take part on an equal footing in any system Article 7 of regulation, even though their nationals do not carry 1. Where the same continental shelf is contiguous on fishing in the area. to the territories of two or more States whose coasts are opposite to each other, the boundary of the con- Article 3 tinental shelf appertaining to such States is, in the States shall be under a duty to accept, as binding absence of agreement between those States or unless upon their nationals, any system of regulation of another boundary line is justified by special circum- fisheries in any area of the high seas which an inter- 678 Yearbook of the United Nations

national authority, to be created within the framework implications of the draft articles, would decide to post- of the United Nations, shall prescribe as being essential pone consideration of the parts of the report of the for the purpose of protecting the fishing resources International Law Commission dealing with those sub- of that area against waste or extermination. Such inter- jects and to include them in the provisional agenda national authority shall act at the request of any of the Assembly's tenth session. interested State. To this joint draft resolution, the United States pro- (3) Contiguous Zone posed an amendment (A/C.6/L.325), envisaging the inclusion in the provisional agenda of the ninth session The Commission adopted a single article on of the subject of the continental shelf and in that of contiguous zone. It stated that the article was the tenth session of the subject of fisheries. identical to the one adopted at the Commission's The representative of Iceland, supported by, third session except for the words reproduced in among others, the representatives of Norway, italics. Apart from some qualifications and reser- Poland, Sweden and the USSR, stated that the vations, the principle underlying the article en- regime of the high seas and that of the territorial countered no opposition from governments, the sea were closely related and should be considered Commission stated. The Commission did not together. Furthermore, the draft articles on the recommend any Assembly action in respect of this continental shelf and those on fisheries could not be article. Its text follows: studied before certain aspects of the regime of the "On the high seas adjacent to its territorial sea, high seas, such as contiguous zones, and certain the coastal State may exercise the control necessary to aspects of the regime of the territorial sea, such as prevent and punish the infringement, within its terri- the delimitation of that sea, were settled. tory or territorial sea, of its customs, immigration, fiscal or sanitary regulations. Such control may not be The sponsors of the five-Power draft resolution, exercised at a distance beyond twelve miles from the supported by the representatives of Belgium, base line from which the width of the territorial sea is measured." Brazil, Chile, Greece, India, the Netherlands, and New Zealand, among others, said that the adoption b. CONSIDERATION BY THE GENERAL of the Icelandic draft resolution would postpone ASSEMBLY AT ITS EIGHTH SESSION indefinitely the consideration of the question. They shared the view, expressed by the Chairman The Assembly's Sixth Committee considered of the International Law Commission, that the chapter III of the Commission's report (A/2456) subjects of the continental shelf and fisheries were containing these drafts at its 389th, 392nd and susceptible of independent solution. 393rd meetings on 18 and 25 November 1953. The representative of the United States said It had before it three draft resolutions: that the question of the continental shelf was (1) A draft resolution by Iceland (A/C.6/L.314) quite distinct from that of fisheries and from which provided, inter alia, that the General Assembly, other problems relating to the high seas. The considering that at its fourth session it had recom- mended that the International Law Commission study question could be considered without affecting simultaneously the regime of the high seas and the the claims of States with regard to the limit regime of territorial waters, and, having regard to the of territorial waters. fact that the problems relating to the high seas, ter- ritorial waters, contiguous zones, the continental shelf In a statement (A/C.6/L.324) circulated to and the superjacent waters were closely linked together the Committee, the Chairman of the International juridically as well as physically, would decide not to Law Commission, said that it was undesirable to deal with any aspect of the regime of the high seas postpone for such a long period consideration or the regime of the territorial waters until all the problems involved had been studied by the Inter- of the question of the continental shelf, since national Law Commission and reported upon by it to a number of States were already considering the General Assembly. unilateral legislation to regulate their rights in (2) A draft resolution by Panama (A/C.6/L.319) the continental shelf. Such unilateral laws, he which was superseded by a revised text (A/C.6/L.319/- stated, were expected to display considerable di- Rev.1), according to which the General Assembly vergencies and, once they were enacted, it would would request the International Law Commission "to continue its study of the drafts relating to the terri- be more difficult to reach agreement among States torial sea and to the régime of the high seas with a on a generally accepted body of rules. view to the harmonious co-ordination of these drafts and their inclusion in the agenda of the tenth session At the 393rd meeting of the Sixth Committee of the General Assembly". on 25 November, the Icelandic draft resolution (3) A joint draft resolution by Canada, Egypt, was voted on by roll-call and was adopted by 19 France, Syria and the United Kingdom (A/C.6/L.318). votes to 14, with 18 abstentions. providing that the General Assembly, desiring to give governments sufficient time to study the draft articles In view of the adoption of this draft resolution, on the continental shelf and those on fisheries and the the joint draft resolution submitted by Canada, Legal Questions 679

Egypt, France, Syria and the United Kingdom and Commission study simultaneously the regime of the the United States amendment to it and the draft high seas and the regime of territorial waters, resolution submitted by Panama were not put to "Having regard to the fact that the problems re- the vote. lating to the high seas, territorial waters, contiguous zones, the continental shelf and the superjacent waters The Sixth Committee's report (A/2589) was are closely linked together juridically as well as considered by the General Assembly at its 468th physically, plenary meeting on 7 December 1953. "Decides not to deal with any aspect of the regime of the high seas or of the regime of territorial waters The representative of the Netherlands sub- until all the problems involved have been studied by mitted an amendment (A/L.170) to the draft reso- the International Law Commission and reported upon lution recommended by the Sixth Committee. The by it to the General Assembly." amendment would refer to General Assembly resolution 374(IV) and would provide, in the 3. State Responsibility operative part, that, instead of postponing con- sideration of the question "until all the problems At its 393rd and 394th meetings on 25 and 28 involved had been studied by the International November, the Assembly's Sixth Committee con- Law Commission", the Assembly would postpone sidered a draft resolution submitted by Cuba consideration of the articles on the continental (A/C.6/L.311), providing that the General As- shelf and on fisheries only to the tenth session. sembly "request the International Law Commission, Explaining his amendment, the representative as soon as it considers it possible, to undertake of the Netherlands said that the preamble of the codification of the principles of international the draft resolution recommended by the Sixth law governing State responsibility and to include Committee did not represent exactly the contents it among topics to which it accords priority". of Assembly resolution 374(IV). The word Some representatives expressed the view that, "simultaneously" did not occur in that resolution. since the item was not on the agenda of the Gen- Furthermore the amendment would bring the draft eral Assembly, it could not be considered by the resolution into line with the view of the Inter- Sixth Committee. The Committee, however, de- national Law Commission as expressed in the cided, by 16 votes to 5, with 24 abstentions, to Sixth Committee by its Chairman. Supporting the consider the question. amendment, the representative of the United Kingdom said that the draft resolution recom- In explaining the draft resolution, the rep- mended by the Sixth Committee was negative in resentative of Cuba pointed out that "State character and would indefinitely postpone the responsibility" was one of the fourteen topics of consideration of the Commission's work on fisher- international law which the Commission, at its ies and the continental shelf—subjects whose im- first session in 1949, had provisionally selected portance was increasing every day. He would vote for codification. In his view, the topic was now against the Sixth Committee's draft resolution if ripe for codification. He emphasized that many the amendment proposed by the Netherlands were disputes between States arose out of claims based not carried, he said. on real or alleged infringements of international obligations involving the responsibility of the Opposing the amendment, the representative State. A systematic formulation of the relevant of Iceland said that its substance had already been principles would, he considered, facilitate the rejected by the Sixth Committee. Instead of reach- establishment of peaceful and friendly relations ing a quick decision on the question, it would be between States. The representative of Cuba added far better if the question was thoroughly investi- that the adoption of his draft resolution would not gated by the Commission. He would therefore compel the Commission to undertake such codi- vote against the amendment. fication immediately. The Netherlands amendments were rejected by In the course of the Committee's consideration 19 votes to 17, with 14 abstentions. of the question, the representative of Cuba ac- The draft resolution recommended by the cepted the suggestion of the Chairman of the Sixth Committee was adopted by the Assembly by International Law Commission to substitute for 30 votes to 9, with 11 abstentions, as resolution the word "possible" the word "advisable" in 798(VIII). It read: the operative part. He also accepted an oral amend- "The General Assembly, ment by New Zealand to delete the words "and "Considering that at its fourth session the General to include it among the topics to which it [the Assembly recommended that the International Law Commission] accords priority". 680 Yearbook of the United Nations

The Cuban draft resolution, as amended, was draft conventions and what course of action it adopted by the Committee, by 30 votes to none, should recommend. with 16 abstentions, and, on the Committee's During the fifth session, the special rapporteur recommendation (A/2589), by the General As- prepared an interim report and drafts of conven- sembly, without discussion, at its 468th plenary tions bearing upon the problem of elimination or meeting on 7 December 1953, by 36 votes to none, reduction of existing statelessness (A/CN.4/75). with 16 abstentions. The resolution (799(VIII)) The Commission asked the special rapporteur to read: devote further study to the matter and to prepare "The General Assembly, a report for the next session. "Considering that it is desirable for the maintenance and development of peaceful relations between States b. OTHER DECISIONS that the principles of international law governing State responsibility be codified, (1) The Commission rejected a proposal "Noting that the International Law Commission at whereby a dissenting member of the Commission its first session included the topic 'State responsibility' might attach a statement of his opinion to any in its provisional list of topics of international law decision by the Commission on draft rules of in- selected for codification, ternational law. It also rejected a proposal "Requests the International Law Commission, as soon whereby, in cases other than those covered by the as it considers it advisable, to undertake the codification previous decision, a dissenting member might of the principles of international law governing State responsibility." briefly explain his views in a footnote if a decision had been taken on a question of principle affecting the work of the Commission. During the discus- 4. Others Matters Considered sion, it was proposed that members should be by the Commission entitled to record, in an annex to the final report, their dissent from all or part of a report adopted a. NATIONALITY INCLUDING by the Commission and to append a brief state- STATELESSNESS ment of the reason for their dissenting opinion. At the end of its fourth session, the Commis- This proposal, also, was not accepted by the sioner appointed Roberto Cordova (Mexico) to Commission, the vote being equally divided. In- replace Manley O. Hudson (United States) as stead the Commission confirmed the rule adopted special rapporteur on the topic of "Nationality at its third session that detailed explanations of including statelessness". It also appointed Ivan dissenting opinions should not be inserted in Kerno as an expert to assist the special rapporteur. the report, but merely a statement to the effect The special rapporteur presented a report (A/- that, for the reasons given in the summary records, CN.4/64) to the Commission's fifth session, con- a member was opposed to the adoption of a parti- taining articles accompanied by detailed comment, cular passage of the report. for two draft conventions: one on the elimination (2) The Commission requested its special of future statelessness and the other on the reduc- rapporteur on the law of treaties, H. Lauterpacht, tion of future statelessness. The Commission also to continue his work on the subject and to present had before it a "Report on Nationality including a further report to the next session. Statelessness" (A/CN.4/50) presented by Mr. (3) The Commission requested Jean Spiro- Hudson to its fourth session, a memorandum pre- poulos, special rapporteur on the Draft Code of pared by Mr. Kerno on national legislation con- Offences against the Peace and Security of Man- cerning grounds for the deprivation of nationality kind, to undertake a further study of the question (A/CN.4/66) and two reports of the Secretary- and to submit a report to the Commission's next General, namely, "A Study of Statelessness" (E/- session. 1112 & Add.1) and "The Problem of Statelessness" (A/CN.4/56 & Add.1). (4) In view of the forthcoming periodical election of its members,23 the Commission de- The Commission adopted both draft conventions cided to postpone a decision on General Assembly and decided to request the Secretary-General to resolution 685(VII)24 by which the Commission issue them as a Commission document. It also was asked to undertake the codification of the decided to invite governments to submit their topic "diplomatic intercourse and immunities" and comments on the draft conventions as formulated to accord it priority. by it. The Commission would then, it stated, 23 consider whether and in what form it should See p. 19. 24 submit to the General Assembly one or more final See Y.U.N., 1952, p. 803. Legal Questions 681 F. THE QUESTION OF DEFINING AGGRESSION

By resolution 688(VII)25 of 20 December 1952, text specified acts which when first committed by the General Assembly established a Special Com- a State would constitute attack. Such acts would mittee of fifteen members26 and requested it to include: declaration of war; invasion by armed submit to the Assembly's ninth session draft forces even without such a declaration; bombard- definitions of aggression or draft statements of ment; landing or leading of armed forces into the the notion of aggression and to study on the as- boundaries of another State without the permis- sumption of a definition being adopted by a reso- sion of its government; violation of conditions of lution of the General Assembly: such permission; naval blockade and support of (1) the various forms of aggression; armed bands organized in its own territories which (2) the connexion between a definition of aggres- invaded the territory of another State. sion and the maintenance of international peace and The USSR proposal would also include defini- security; tions of "indirect" aggression such as: promotion (3) the problems raised by the inclusion of a definition of aggression in the Code of Offences against of civil war in another State; economic aggression, the Peace and Security of Mankind" and by its appli- such as exercising economic pressure violating a cation within the framework of international criminal State's sovereignty and threatening its economic jurisdiction; independence; and ideological aggression, such as (4) the effect of a definition of aggression on the encouraging war propaganda or propaganda in exercise of the jurisdiction of the various organs of the favour of using atomic, bacterial, chemical and United Nations; other weapons of mass destruction. The proposal (5) any other problem which might be raised by a definition of aggression. also stated that an act other than those specified might constitute aggression if, in a particular case, The Special Committee on the Question of the Security Council so resolved. Defining Aggression met at United Nations Head- quarters, New York, from 24 August to 21 Sep- The Soviet proposal then listed considerations tember 1953. which might not be used as justifications for an attack or for acts of indirect, economic or ideo- It elected Enrique de Marchena (Dominican logical aggression. These included "arguments" of Republic) as Chairman, B. V. A. Rolling (Nether- a political, strategic or economic nature, such as lands) as Vice-Chairman and S. Tarazi (Syria) as the amount of capital invested in the State at- Rapporteur. tacked or other particular interests in the territory. To facilitate the Special Committee's work, the The proposal stated, in particular, that the internal Secretary-General submitted a memorandum (A/- position of any acts, legislation or orders of any AC.66/1) entitled "Some Aspects of the Defini- State might not be used as a justification. tion of Aggression" containing an analysis of the The two working papers submitted by China 28 views expressed at the seventh session of the (A/AC.66/L.3 & A/AC.66/L.7/Rev.2) stated General Assembly on the question of defining that aggression consists of the employment of aggression together with the comments of Gov- force, open or covert, armed or unarmed, by a ernments on the draft code of offences against the State for the violation, impairment or destruction peace and security of mankind and on the question of the territorial integrity or political independence of aggression. of another State, or for the subversion of its In addition, the following texts were submitted political or social order, or, in a case of dispute to the Committee by members: (1) a draft with another State, for the coercion of that State definition of aggression submitted by the USSR in place of pacific settlement. Among other acts (A/AC.66/L.2/Rev.1); (2) two working papers included in the definition of aggression were: submitted by China (A/AC.66/L.4/Rev.3 and waging war; arming organized bands or third A/AC.66/L.7/Rev.2); (3) a working paper sub- States for offensive action against a State; planting mitted by Mexico (A/AC.66/L.8); and (4) a fifth columnists or subversive agents; inciting civil working paper submitted by Bolivia (A/AC.66/- strife; and imposing a naval or economic blockade. L.9). 25 For text see Y.U.N., 1952, p. 791. The USSR definition was in the form of a draft 26 For members see Appendix I. resolution (A/AC.66/L.2)29 by which the Gen- 272 See Y.U.N., 1951, pp. 841-42. 8 eral Assembly would formulate "directives" with See Y.U.N., 1952, pp. 785-91. 29 For the text submitted by the USSR to the sixth a view to determining which party, in an inter- session of the General Assembly, see Y.U.N., 1951, national conflict, was guilty of aggression. The p. 837. 682 Yearbook of the United Nations

The Chinese text characterized as legitimate the types of definitions of aggression; the Charter employment of force in self-defence or reprisal, concept of aggression; the notions of indirect, subject to the conditions laid down in international economic and ideological aggression; the connexion law and in carrying out a decision or recommenda- between a definition of aggression and the main- tion of a competent organ of the United Nations. tenance of international peace and security; the The working paper submitted by Mexico effect of a definition of aggression on the exercise (A/AC.66/L.8), stated that the proposed USSR of the jurisdiction of the various organs of the definition could be improved and would be ac- United Nations; and the problems raised by the ceptable to the Mexican delegation if certain inclusion of a definition of aggression in the Draft changes were incorporated. Among the changes Code of Offences Against the Peace and Security suggested were the insertion in the preamble of a of Mankind. provision to the effect that aggression was the As regards the various types of definitions, the direct or indirect use of force by the authorities of report stated that some representatives favoured one State against the territory or political inde- a general definition which, instead of listing acts pendence of another State or for any purpose other of aggression, would contain general formulae than legitimate individual or collective defence applicable to all the cases contemplated. This or in compliance with a decision or recommenda- type of definition, however, was criticized by tion of a competent organ of the United Nations. other members. The representative of Poland, It stated further that acts constituting "so-called" for example, maintained that it would be useless indirect, economic or ideological aggression should to have a general definition as it would not refer be regarded as aggression only if they involved to the elements constituting the crime. or were accompanied by the use of force. How- The representatives of China and the United ever, it was stated, such acts, even if they did not Kingdom, in particular, the report said, criticized constitute aggression, might justify enforcement the enumerative or "analytical" type of defini- measures by the Security Council in the same tion which, they maintained, was incomplete and manner as if aggression had been committed, if capable of being circumvented, a point to which by their effect on the victim State or for any other the USSR representative replied by stating that reason, they constituted a threat to peace. This his proposed definition (see above) was both an- point, the Mexican representative considered, alytical and synthetic and included a provision should be particularly stressed in the Assembly's whereby the Security Council would be enabled report. to decide that an act not listed would, in a parti- The working paper submitted by Bolivia (A/- cular case, constitute aggression. AC.66/L.9) was in the form of a draft resolution, The United States representative held that whereby the General Assembly would resolve that instead of trying to establish a general formula independently of acts of aggression designated as which would probably be incomplete, it would be such by the competent organs of the United better to offer the competent United Nations Nations, the following would constitute acts of organs, particularly the Security Council, a list aggression: invasion across the frontiers estab- of factors to be taken into account in deciding a lished by treaties or judicial or arbitral decisions given case. or, in the absence of marked frontiers, an inva- sion affecting territories under the effective juris- A majority of members, the report stated, agreed diction of a State; declaration of war, armed attack that it was the duty of the Committee to define against the territory, ships or aircraft of another aggression in the sense of the Charter. However, State; support given to armed bands for purposes the relevant Articles of the Charter were in- of invasion; incitement to rebellion; the threat terpreted differently by them. Some members, or use of force against the territorial integrity or including the representatives of France, the Nether- political independence of any State or in any lands and the United Kingdom, were of the other manner incompatible with the purposes of opinion that the notion of aggression in the sense the United Nations, including unilateral action of the Charter was limited solely to armed aggres- whereby a State was deprived of economic re- sion. The representatives of Bolivia, China, Iran, sources or its basic economy was endangered. Mexico, Poland and the USSR maintained that it In its report (A/2638) to the ninth session of extended to other forms of aggression not neces- the General Assembly, the Special Committee sarily involving the actual use of armed force. noted the different points of view which had Yet other members expressed views that could not emerged during its discussion on: the various be identified with either of the two positions. Legal Questions 683

As regards the connexion between a definition on a case of aggression brought simultaneously of aggression and the maintenance of international before both of them. He suggested that, to obviate peace and security, the report noted the following that difficulty, the text of the definition of aggres- points of view which had emerged during dis- sion should include a provision under which the cussions. international court would be bound by the Se- The representatives of Bolivia, the Dominican curity Council's decisions, which would be taken Republic, France, Iran, Mexico, Poland, Syria and on the basis of that definition. It might, however, the USSR expressed themselves in favour of defin- well be that the crime of aggression would be ing aggression, maintaining that such a definition considered, for the time being, less comprehensive than the concept of aggression in the sense of was possible and would be desirable for the main- 30 tenance of peace and security. Others took the Article 39 of the Charter. If that were the case, view that such a definition would not only not be the representative of the Netherlands said, an useful, but would in fact be dangerous to the international criminal court might find an act, maintenance of peace. The absence of such a considered as aggression by the Security Council, definition had never been felt, the members oppos- not criminal in the sense of a code of international ing a definition stated. Some of these representa- criminal law. tives asserted that a definition of aggression would In its observations on the draft Code of Offences actually assist an aggressor by enabling him to Against the Peace and Security of Mankind and circumvent it. on the question of defining aggression, the Nether- The report stated that the representative of lands Government proposed that the concept of France favoured the inclusion of a definition of aggression should be defined as follows: aggression in the Code of Offences Against the "Aggression is the threat or use of force by a State or government against the territorial integrity or Peace and Security of Mankind and its application political independence of another State or against a within the framework of international criminal territory under international regime in any manner, jurisdiction. However, pending final decisions on whatever the weapons employed and whether openly, those questions, his delegation, believing that a or otherwise, for any reason or for any purpose other than individual or collective self-defence against such definition of aggression would serve a useful pur- a threat or use of force or in pursuance of a decision pose in United Nations activities, was prepared to or recommendation by a competent organ of the United collaborate in the Committee's work to that end. Nations". The representative of the Netherlands stated As to the effect of a definition of aggression on that the objections that could be raised to a the exercise of the jurisdiction of the various definition of aggression intended to be applied organs of the United Nations, the report of the under a system of collective security would not Special Committee stated that members were all apply to a definition to be used in the more agreed that any definition of aggression included in restricted field of international criminal jurisdic- a General Assembly resolution would merely have tion. He stressed, however, that two problems the status of a recommendation. It would not have might arise from the application by an interna- a binding character. However, the report said, tional criminal court of a definition of aggression: some members stressed that such a definition would first, a decision by such a court bearing on a case exercise great moral authority over the interna- of aggression might hamper the Security Council tional organs called upon to pronounce on a case of in its essential function, which was to maintain aggression. peace and security; it might hinder its action in The Special Committee decided unanimously the peaceful settlement of a dispute. Secondly, the not to put the various draft definitions of aggres- Security Council and the international criminal sion to a vote but to transmit them as they stood court might pronounce two contradictory decisions to Member States and to the General Assembly.

G. INTERNATIONAL CRIMINAL JURISDICTION

The 1953 Committee on International Criminal (A/2645) was to be considered at the Assembly's Jurisdiction established by General Assembly reso- ninth session. 31 lution 687(VII) to make a further study of 30 Article 39 states that the Security Council shall problems relating to an international criminal determine the existence of any threat to the peace, jurisdiction met at United Nations Headquarters breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall from 27 July to 20 August 1953. In accordance be taken to maintain or restore peace and security. with resolution 687(VII), the Committee's report 31 See Y.U.N., 1952, p. 806. 684 Yearbook of the United Nations

The Committee elected George Maurice Morris held that the unanimously affirmed principles of (United States) as Chairman, Victor Perez Perozo Nürnberg, for example, made international crimi- (Venezuela) as Vice-Chairman and B.V.A. Röling nal jurisdiction desirable, and the institution of (Netherlands) as Rapporteur32. It also elected a such jurisdiction should be promoted by establish- standing drafting sub-committee, consisting of the ing its possibility as far as present inter-State Chairman and the Rapporteur of the Committee relations would permit. Consequently these mem- and the representatives of Argentina, Australia, bers favoured the establishment of a court, the Belgium and the Philippines. The sub-committee jurisdiction of which, they said, would depend on held two meetings and, on the basis of decisions voluntary submission to that jurisdiction by States of principle taken by the full Committee, prepared which were willing so to submit. drafts for the Committee's consideration. As to the kind of court to be established, some members believed it necessary that it should be The Committee had before it the following stable, permanent, independent, effective and uni- documents: versal. They considered that it would be better not (1) the report (A/2136) of the Geneva Com- to have any court at all than to have one of in- mittee on International Criminal Jurisdiction estab- 33 ferior quality. Other members considered, how- lished by the General Assembly at its fifth session and the draft statute for an international criminal court ever, that it was unrealistic to insist on perfection prepared by that Committee and annexed to its report; at the outset and that it was better to have a court (2) a "Compilation of Comments and Suggestions with limited powers than to have none at all. All relating to the Draft Statute for an International members agreed that there should be some degree Criminal Court" (A/AC.65/1) prepared by the Sec- of sponsorship by the United Nations for the crea- retariat on the basis of comments and suggestions on tion of the court, if it were ultimately found the Geneva Committee's report by eleven governments (A/2186 and Add.1); desirable and possible to have one. However, some expressed the view that the court and the United (3) comments on the subject by the Belgian Gov- ernment (A/AC.65/3) placed before the Committee Nations should operate as separately as possible. in the course of its meetings; and Most of the members recognized international (4) a memorandum entitled "Historical Survey of criminal justice as a positive factor in the main- the Question of International Criminal Jurisdiction" tenance of peace. (A/CN.4/7/Rev.1) originally prepared by the Secretary- General for the International Law Commission. As regards the methods by which an interna- tional criminal court might be established mem- The Committee dealt with the main problems bers agreed that various combinations among the relating to the establishment of an international following three methods were possible: (1) the criminal court and re-examined the Geneva draft establishment of the court through the amend- statute. ment of the United Nations Charter; (2) estab- During its discussions, the Committee's report lishment by a multilateral convention; and (3) said, some members expressed the view that the establishment by a resolution of the General As- sembly. The Committee also discussed in some establishment of an international criminal court detail the method of creating the court by a was inadvisable at the present stage in the develop- General Assembly resolution, followed by multi- ment of international organization. Such a court lateral conventions conferring jurisdiction. The would not enjoy the general support of the inter- Committee voted, as follows, on the best method national community and its establishment was of establishing the court. impracticable since States were not prepared to recognize its jurisdiction. In the present interna- By 8 votes to 2, with 3 abstentions, it decided tional situation States could not be expected to that the best method of establishing an interna- accept the limitations on their sovereignty which tional criminal court would be by means of a the establishment of such a court would involve. convention prepared by an international diplomatic conference convened under the auspices of the Other members expressed the view that the United Nations. idea of international criminal jurisdiction was By 6 votes to 1, with 8 abstentions, it decided to gaining ground, as was evidenced by the establish- recommend to the General Assembly that the ment of ad hoc tribunals such as those of Nürnberg court should not come into existence until juris- and Tokyo. The tendency to judge an international activity by common standards of morality would 32 For members, see Appendix I. be strengthened by the existence of an international 33 For a summary of this Report, see Y.U.N., 1951, criminal court, these members believed. They pp. 852-54. Legal Questions 685 diction had been conferred upon it by a certain The proceedings of the court might be initiated number of States (the precise number to be de- only by States. A State initiating proceedings cided later). would present evidence of international crime to a Committing Chamber of five judges, appointed By 5 votes to 4, with 6 abstentions, it decided annually for one year by the court. A judge who to recommend to the General Assembly that the had dealt with a case in the Chamber might not court should not come into existence until a try it in the full court. The Chamber would give certain number of States (the precise number to the accused reasonable opportunity to be heard be determined later) had ratified the convention and, if necessary, might order further inquiry or containing the statute of the court. investigation. If the Chamber was satisfied that The Committee then drew up a revised draft the evidence was sufficient to support the com- statute for an international criminal court the plaint, the Chamber was so to certify to the court main features of which were as follows. and to the complainant. A prosecuting attorney, appointed by the complainant State, would then Under the revised draft statute, a permanent file with the court an indictment based on the international criminal court would be established findings of the Committing Chamber and he to try natural persons, whether constitutionally would be responsible for conducting the prosecu- responsible rulers, public officials or private in- tion. dividuals accused of crimes generally recognized under international law. The court would apply The indictment would contain a concise state- international law and, where appropriate, national ment of the facts which constituted each alleged law. It would consist of fifteen independent offence and a specific reference to the law under judges, elected regardless of nationality, no two which the accused was charged. It would be served of whom might be nationals of the same State. upon the accused and brought to the notice of the Stateless persons might be elected as judges. State or States of which he was a national, of Judges would be elected by the States which con- the State where the crime was alleged to have ferred jurisdiction on the court. An alternative been committed and, as far as possible, of the text provided that the judges would be elected by States of which the victims were nationals. the Members of the United Nations and those Trials would be without jury, except where non-member States which conferred jurisdiction otherwise provided in the instrument by which on the court. The term of office of the judges jurisdiction had been conferred upon the court. would be nine years and they would be eligible The accused would be presumed to be innocent for re-election. until proved guilty and would have all guarantees Jurisdiction of the court was not to be pre- for a fair trial. sumed. A State might confer jurisdiction on the The accused would have the right to be heard court by convention, special agreement or uni- but would not be compelled to speak. If the court lateral declaration. No person, however, might be tried before the court unless jurisdiction had considered it impossible to ensure a fair trial, it been conferred on it by the State or States of might suspend proceedings. If proceedings were which he was a national and by the State or States not resumed within a time limit determined by in which the crime was alleged to have been the court, it would dismiss the case and the ac- committed. States which conferred jurisdiction on cused would be automatically released. The court the court would jointly bear the expenses neces- was not to proceed with the trial unless satisfied sary for its operation. A State might withdraw its that the accused had had the indictment and any conferment of jurisdiction. amendment thereof served upon him and had had sufficient time to prepare his defence. Proceedings before the court might be insti- tuted by a State which had conferred jurisdiction The court would sit in public unless there were upon the court over such offences as were involved exceptional circumstances in which it found that in those proceedings; an alternative text provided public sittings might prejudice the interests of that, in the interest of the maintenance of peace, justice. Its deliberations would be in private and a United Nations organ to be designated by the were not to be disclosed. The court would have United Nations might stop the presentation or the power to issue warrants of arrest relating prosecution of a particular case before the court. to crimes over which it had jurisdiction to deter- Penalties imposed by the court were to be subject mine the provisional liberty of the accused. It to limitations in the instrument conferring juris- would have the authority necessary for the proper diction. conduct of a trial. If the complainant State with- 686 Yearbook of the United Nations drew its case, the court alone was to decide nature as to be a decisive factor and which was whether the accused should be discharged. unknown to the court and the applicant. The The court would be constituted by seven judges draft statute made provision for granting clem- ency, which included pardon and reduction of and decisions would be by a majority of judges participating in the trial. The judgment would sentence, and parole to convicted persons. This power was to be exercised by a Board of Clem- set forth the reasons for the findings and contain ency and Parole which would be independent of the names of the judges who took part in the the court. The Board, consisting of five persons, decision and any separate opinion of individual would be elected by the States conferring juris- judges. The judgment of the court would be diction on the court. An alternative text provided final and without appeal. that the Board should be elected by Members of No person who had been tried and acquitted the United Nations and those non-member States or convicted before the court, might be subse- which had conferred jurisdiction upon the court. quently tried for the same offence in any court The draft statute finally provided that nothing within the jurisdiction of any State which had contained in it would prejudice the right of two conferred jurisdiction upon the court with respect or more States which had conferred jurisdiction to that offence. Sentence would be executed in on the court jointly to set up special tribunals accordance with relevant conventions; it might, to try the perpetrators of crimes over which each however, be subject to revision if a fact were of those States had jurisdiction according to the subsequently discovered which was of such a general rules of international law.

H. CONTINUATION OF THE FUNCTIONS OF THE UNITED NATIONS TRIBUNAL IN LIBYA

By its resolution 388(V) of 15 December 1950, the expenses of the Tribunal should continue to the General Assembly set up a United Nations be borne by the United Nations. Tribunal in Libya composed of three persons The memorandum also referred to a communi- selected by the Secretary-General to: (1) give, cation from the President of the Tribunal in- upon request, to the Administering Powers, the forming the Secretary-General that a considerable Libyan Government and the Italian Government part of the Tribunal's time in 1954 would be such instructions as might be required to give taken up by the consideration of a request for effect to the economic and financial provisions instructions made by the Government of Italy, set out in the resolution; and (2) to decide all and that both the Government of Italy and that disputes arising between the authorities concern- of Libya had under consideration a large number ing the interpretation and application of those of requests by their nationals for the submission provisions. of cases to the Tribunal. The memorandum fur- Sub-Committee 1 of the Ad Hoc Political Com- ther stated that it was also likely that both mittee which studied the question at the Assem- Governments might require consultation with the bly's fifth session recommended (A/AC.38/L.70) Tribunal on the interpretation of various agree- that the question of the continuation of the Tri- ments provided for under Assembly resolution bunal be considered by the Assembly at its seventh 388(V). or eighth session. Accordingly it was placed on A joint draft resolution was submitted by Ar- the agenda of the eighth session and was con- gentina and Egypt (A/C.6/L.294), recommending sidered at the 368th meeting of the Sixth Com- that the Assembly continue the Tribunal and re- mittee on 10 October and at the 453rd plenary quest the Secretary-General to report on its con- meeting on 23 October 1953. tinuation to the tenth session of the General In considering the question, the Sixth Com- Assembly. The United Kingdom submitted an mittee had before it a memorandum (A/2459) amendment (A/C.6/L.301) to request the Sec- by the Secretary-General which contained replies retary-General to report to the ninth rather than from the Governments of Italy and Libya to his the tenth session of the Assembly. The representa- letter requesting their views on the subject. Both tive of the United Kingdom stated that his amend- Governments considered that the Tribunal should ment was not aimed at preventing the continua- continue for a further period of time. The Gov- tion of the Tribunal beyond the ninth session if ernment of Libya also expressed the view that this was necessary. But it was expected that the Legal Questions 687

Tribunal would complete its work in about twelve as those for which funds were appropriated in to fourteen months and therefore, he considered, 1953, she added. it would be better if the Assembly reviewed the The draft resolution recommended by the Sixth question at its ninth session. Committee was adopted, without discussion, by The representative of France as well as the 51 votes to none, with 6 abstentions, as resolution sponsors of the draft resolution opposed the 792(VIII). It read: United Kingdom amendment on the ground that "The General Assembly, the Secretary-General could be expected to make "Recalling its resolution 388(V) of 15 December a comprehensive report only after the Tribunal 1950 on the economic and financial provisions relating had completed its work. to Libya, article X of which set up a United Nations Tribunal in Libya and defined its functions, The United Kingdom amendment was rejected "Noting that the Governments of Italy and Libya by 20 votes to 10, with 16 abstentions. The joint are conducting negotiations for the conclusion of the draft resolution was adopted, with textual amend- various agreements provided for in resolution 388(V), ments, by 43 votes to none, with 6 abstentions. "Noting that both those Governments, in their replies to a letter from the Secretary-General, state that When the Sixth Committee's report (A/2513) they consider that the Tribunal should be continued for was considered by the General Assembly at its a further period, 453rd plenary meeting, the President stated that "Having noted the explanatory memorandum by the the Secretary-General would continue to make Secretary-General concerning the continuation of the financial provision for the United Nations Tri- functions of the Tribunal, bunal in Libya in his estimate for Section 5 of "1. Resolves that the United Nations Tribunal in the budget and would submit a detailed 1954 Libya shall continue its existence; "2. Requests the Secretary-General, after consulta- budget for the Tribunal to the Fifth Committee tion with the Governments concerned regarding the for its review and approval during the session. future of the Tribunal, to report to the General As- The requirements would be generally the same sembly at its tenth session."

I. ACCELERATION OF RATIFICATION OF THE GENOCIDE CONVENTION

The Sub-Commission on Prevention of Discri- The Council at its sixteenth session discussed mination and Protection of Minorities at its fourth the question during its consideration of the sub- session in October 1951 had submitted (E/CN.- ject of prevention of discrimination and protec- 4/461) to the Commission on Human Rights a tion of minorities,34 at the 250th to 256th meet- draft resolution concerning the Genocide Con- ings of its Social Committee from 24 to 31 July vention. The Commission on Human Rights, at and at its 746th plenary meeting on 3 August its ninth session, from 7 April to 30 May 1953, 1953. A Turkish oral amendment, to replace the decided (E/2447) not to take action on the sec- word "Governments" by the word "States", on the ond part of the resolution, which would have ground that it was States, not Governments, that requested the General Assembly to give effect ratified conventions, was adopted by 13 votes to to the wish of the Committee on International none, with 5 abstentions. The draft resolution, Criminal Jurisdiction, established by the General proposed by the Commission, as amended, was Assembly in December 1950, to have drawn up, adopted by the Social Committee (E/2449 E) together with the instrument establishing an inter- at its 255th meeting on 30 July, by 14 votes to national penal tribunal, a protocol empowering none, with 4 abstentions, and by the Council at the tribunal to deal with the issue of genocide. The its 746th plenary meeting on 3 August 1953 by Commission, however, approved the first part of the same vote. The representatives of India and the proposal, by which it expressed the opinion Argentina indicated that they had abstained pri- that genocide, one of the gravest forms of dis- marily because their Governments had not yet crimination, constituted a crime under inter- been able to ratify the Convention. national law and that widespread knowledge of In this resolution (502 E (XVI)), the Coun- the nature and importance of the Convention cil drew the Assembly's attention to the resolution would further its humanitarian and civilizing adopted by the Commission on Human Rights purpose. It recommended to the Economic and and requested the General Assembly to reiterate Social Council a draft resolution (E/2447 E) to request Assembly action. 34 See also p. 391ff. 688 Yearbook of the United Nations

its appeal to States to accelerate their ratifications Referring to the second paragraph of the draft or adherences to the Convention and to undertake resolution which would request the Secretary- all necessary measures to assure the widest pos- General to undertake all necessary measures for sible diffusion of its nature, contents and purposes, the diffusion of the Convention, the representa- in particular the list of States which had voted tive of Yugoslavia said that the Secretary-General for, signed, ratified or adhered to the Convention. had already given considerable publicity to it through information media and other publications. The question was placed on the agenda of the He suggested that some acknowledgment should eighth session of the General Assembly and was be made of that fact in the draft resolution. He discussed by the Sixth Committee at its 368th therefore proposed orally that in its second para- meeting. The Committee had before it a note graph the draft resolution should request the by the Secretary-General (A/2458) giving the Secretary-General "to continue to take" all neces- text of the Council resolution, some background sary measures. The suggestion was adopted by the information on the Convention on Genocide and Committee without vote. the steps leading to the adoption of the Council resolution. The representative of India said that his dele- gation would abstain in the vote on the draft The representatives of Cuba, France, Haiti, resolution, not because his Government in any Liberia, Panama and Uruguay submitted a draft way disagreed with the principles set forth in the resolution (A/C.6/L.300), by which the Assem- Convention, but because it had not yet been able bly would reiterate its appeal to States to accele- to ratify the instrument. rate their ratifications of or accessions to the The draft resolution was adopted by the Sixth Genocide Convention. It would also request the Committee by 44 votes to none, with 6 absten- Secretary-General to undertake all necessary meas- tions. ures to ensure the widest possible diffusion of the nature, contents and purposes of the Convention. The representative of the United Kingdom stated that his delegation had voted in favour Statements in support of the joint draft reso- of the General Assembly's resolution 260(III) lution and of the Council resolution were made approving the Convention for signature and rati- by the representatives of Brazil, Canada, Cuba, fication. However, technical and constitutional Egypt, Ethiopia, France, Lebanon, Nicaragua, Pan- difficulties had thus far prevented its ratification, ama, Peru, Poland, Syria, Uruguay and the USSR. and he had therefore abstained on the voting on the draft resolution. A similar statement was made The representative of Canada said that his by the representative of New Zealand. Government had not only ratified the Convention but had also adopted the necessary legislation for The Sixth Committee's report (A/2507) was its implementation. considered by the General Assembly at its 455th plenary meeting on 3 November 1953. The representative of France said that the Con- In explanation of his abstention, the representa- vention on Genocide represented an important tive of the Netherlands reaffirmed his country's advance in the matter of the definition of inter- traditional interest in the development and codi- national offences, since it had dispelled the vague- fication of international law which had led his ness surrounding the concept of genocide and had Government to take an active part in the final made it a punishable crime. He said that France drafting of the Genocide Convention. He stated had been among the first 20 States to ratify the that his Government had always advocated the Convention and had therefore helped to bring institution of an international criminal court. How- it into force. As French legislation contained the ever, the provision for the punishment of political provisions necessary for the application of the genocide had been deleted from article II by an Convention, France was complying fully with the amendment which the Netherlands had strongly obligations it had assumed under the Convention. opposed. This, as well as the reservations of several States in regard to the compulsory jurisdiction The representative of Uruguay said that, al- of the International Court of Justice in disputes though his country had not yet ratified the Con- relating to the Convention, had weakened that vention, the necessary action had been initiated. instrument. His Government had therefore not His delegation had therefore co-sponsored the ratified the Convention on Genocide and could joint draft resolution. not join in inviting others to do so. Legal Questions 689

The draft resolution recommended by the Com- and believing that the Convention represents a valuable mittee was adopted by 50 votes to none, with 8 contribution to the development of international law, "1. Reiterates its appeal to States to accelerate their abstentions (resolution 795(VIII)). It read: ratifications of, or accessions to, the Convention on the Prevention and Punishment of the Crime of Genocide; "The General Assembly, "2. Requests the Secretary-General to continue to "Considering its resolution 260 A (III) of 9 Decem- take all necessary measures designed to ensure the ber 1948, by which it approved the Convention on the widest possible diffusion of the nature, contents and Prevention and Punishment of the Crime of Genocide, purposes of the Convention."

J. ACCESSIONS TO THE CONVENTION ON THE DECLARATION OF DEATH OF MISSING PERSONS

The Government of Italy, on 20 and 26 March The Council decided, by 15 votes to 2, with 1953, in notes (E/2350/Add.5) addressed to the 1 abstention, to include the additional item in Secretary-General, expressed its desire to accede the agenda. During the discussion of the substance to the Convention on the Declaration of Death of the question, a number of representatives, in- of Missing Persons,35 which was opened for ac- cluding those of Argentina, Australia, Belgium, cession, at Lake Success, on 6 April 1950. Article Cuba, Turkey and the United States, favoured the 13 of the Convention provides that States which accession of the Federal Republic of Germany to are neither Members of the United Nations nor the Convention, stressing, inter alia, the humani- parties to the Statute of the International Court tarian aspects of the question. The representatives of Justice may accede to the Convention if they of Poland and the USSR, however, held that only are invited by the Economic and Social Council a government representing a unified Germany passing upon the request of the State concerned. would have the right to accede to an international Accordingly, the Secretary-General proposed that convention and that it would be wrong for the this item be placed on the agenda of the fifteenth Council to deal with only one part of the whole session of the Council. problem of unification. Moreover, the Polish rep- resentative stated, it would be a mockery for a On the basis of a joint draft resolution by Ar- government largely composed of people respon- gentina, Uruguay and Venezuela (E/L.490), the sible for the slaughter of the victims to be allowed Council, at its 681st plenary meeting on 10 April, to accede to the relevant convention. The repre- without discussion, unanimously adopted resolu- sentative of India emphasized that he would tion 479(XV), inviting the Government of Italy support the joint draft resolution by Argentina to accede to the Convention. and Cuba (E/L.569), inviting the Federal Gov- During the Council's sixteenth session, the Gov- ernment to accede to the Convention, only on the ernment of the Federal Republic of Germany, by understanding that the accession of the Federal communications dated 8 July 1953 and 21 July Republic of Germany to the Convention was 1953 addressed to the Secretary-General, expressed authorized on purely humanitarian grounds, and its desire to accede to the Convention on the would not establish on behalf of that Government any claim to have jurisdiction over the whole Declaration of Death of Missing Persons at the of Germany. He also emphasized that adoption earliest possible date, in order to be able to issue of the draft resolution would have no relevance declarations of death having general effect even to the future four-Power negotiations on the prob- in cases where this was impossible at the moment lem of Germany. under current German law. The joint draft resolution was adopted by 15 The Council, at its 750th plenary meeting on votes to 2, with 1 abstention. By this resolution 5 August 1953, considered a memorandum by (508(XVI)), the Council invited the Govern- the Secretary-General (E/2495), in which he ment of the Federal Republic of Germany to transmitted the texts of the communications, re- accede to the Convention on the Declaration of ferred to article 13 of the Convention and pro- Death of Missing Persons. posed that the item be added to the Council's 35 See Y.U.N., 1950, pp. 881-82. agenda. 690 Yearbook of the United Nations

K. MULTILATERAL CONVENTIONS

1. New Conventions Concluded under Secretary-General exercises depositary functions, the Auspices of the United Nations and 101 instruments of ratification, accession or notification were transmitted to the Secretary- The following conventions, protocols, agree- General. ments or other instruments of which the Secretary- The following agreements entered into force General is the depositary were drawn up under during 1953: 36 the auspices of the United Nations during 1953. International Convention to Facilitate the Crossing Final Act of the Third United Nations Technical of Frontiers for Passengers and Baggage carried by Assistance Conference, signed at New York on 27 Rail, signed at Geneva on 10 January 1952 (entered February 1953." into force on 1 April 1953). Convention on the Political Rights of Women, signed International Convention to Facilitate the Crossing at New York on 31 March 1953. of Frontiers for Goods carried by Rail, signed at Convention on the International Right of Correction, Geneva on 10 January 1952 (entered into force on signed at New York on 31 March 1953. 1 April 1953). Protocol for Limiting and Regulating the Cultivation Fifth Protocol of Rectifications to the General Agree- of the Poppy Plant, the Production of, International ment on Tariffs and Trade, signed at Torquay on and Wholesale Trade in, and Use of Opium, New 16 December 1950 (entered into force on 30 June York, 23 June 1953. 1953). Third Protocol of Rectifications and Modifications to the Texts of the Schedules to the General Agreement Second Protocol of Supplementary Concessions to on Tariffs and Trade, signed at Geneva on 24 October the General Agreement on Tariffs and Trade (Austria 1953. and Federal Republic of Germany), done at Innsbruck on 22 November 1952 (entered into force on 30 Declaration of 24 October 1953 on the Continued August 1953). Application of Schedules to the General Agreement on Tariffs and Trade. First Protocol of Rectifications and Modifications to Final Act of the Fourth United Nations Technical the texts of the Schedules to the General Agreement Assistance Conference, signed at New York on 13 on Tariffs and Trade. Done at Geneva on 27 October November 1953." 1951 (entered into force on 21 October 1953). Protocol amending the Slavery Convention signed at Geneva on 25 September 1926, opened for signature 2. Status of Signatures, Ratifications and acceptance at New York on 7 December 1953 and Accessions: Entry Into Force (entered into force on 7 December 1953). Protocol on Road Signs and Signals, signed at The number of international agreements for Geneva on 19 September 1949 (entered into force on which the Secretary-General exercises depositary 20 December 1953). 38 functions had risen by 31 December 1953 to 109. European Agreement supplementing the 1949 Con- vention on Road Traffic and the 1949 Protocol on Road During 1953, a total of 281 signatures were Signs and Signals, signed at Geneva on 16 September affixed to international agreements for which the 1950 (entered into force on 20 December 1953).

L. REGISTRATION AND PUBLICATION OF TREATIES AND INTERNATIONAL AGREEMENTS

During 1953, a total of 855 agreements were The texts of treaties and agreements registered registered with the Secretariat—81 ex officio, 576 or filed and recorded are published by the Sec- by 21 governments, and 198 by five specialized 36 This list includes all agreements which have been agencies. A total of 42 treaties and agreements deposited with the Secretary-General from 1 January— were filed and recorded—nine by the Secretariat 31 December 1953 but excludes other conventions, of the United Nations, 22 at the request of three protocols and agreements which were drawn up under the auspices of the specialized agencies and of which governments and eleven at the request of three the Secretary-General is not the depositary. specialized agencies. 37 Opened for signature at United Nations Head- quarters but not constituting an international agreement. This brought up to 4,106 the total of treaties 38 This number does not include those agreements and agreements registered or filed and recorded concluded under the auspices of the League of Nations for which the Secretary-General of the United Nations by the end of 1953. exercises depositary functions. Legal Questions 691 retariat in the United Nations Treaty Series in a General Index. Four volumes of the General the original languages, followed by translations Index were published by the end of 1953: No. 1 in English and French. Seven volumes (82 to 88) covering the first fifteen volumes of the Treaty of the Treaty Series were published in the course Series, No. 2—volumes 16 to 30, No. 3—volumes of 1953. 31 to 50 and No. 4—volumes 51 to 75. A cumu- In order to facilitate reference to the United lative General Index No. 5 covering volumes 1 Nations Treaty Series, the Secretariat publishes to 100 of the Treaty Series was being prepared.

M. PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS.

During 1953, the following five States deposited Date of deposit of instrument their instruments of accession to the Convention Brazil 15 December 1949 on the Privileges and Immunities of the United Bolivia 23 December 1949 Nations: the Byelorussian SSR, Paraguay, Syria, Yugoslavia 30 June 1950 the Ukrainian SSR and the USSR. This brought Turkey 22 August 1950 USSR 22 September 1953 to 43 the number of States which had deposited Syria 29 September 1953 their instruments of accession to the Convention Paraguay 2 October 1953 by the end of 1953. The States acceding to the Byelorussian SSR 22 October 1953 Convention and the dates of deposit of their Ukrainian SSR 20 November 1953 instruments of accession are: During 1953, one instrument of accession to Date of deposit of instrument the Convention on the Privileges and Immunities of the Specialized Agencies was deposited with 17 September 1946 United Kingdom the Secretary-General, by Cambodia. Three noti- Dominican Republic 7 March 1947 Liberia 14 March 1947 fications from States already parties to the Con- Iran 8 May 1947 vention, namely Denmark, Ecuador and Sweden, Honduras 16 May 1947 extending the application of the Convention to Panama 27 May 1947 further specialized agencies were also received Guatemala 7 July 1947 during the year. £1 Salvador 9 July 1947 Ethiopia 22 July 1947 By 31 December 1953, seventeen States (in- Haiti 6 August 1947 cluding three States not Members of the United France 18 August 1947 Nations) had acceded to the Convention; in ad- Norway 18 August 1947 dition, two States, Egypt and Italy, had submitted Sweden 28 August 1947 instruments subject to reservations. The States Afghanistan 5 September 1947 acceding to the Convention and the dates of de- Philippines 28 October 1947 posit of their instruments of accession are: Nicaragua 29 November 1947 New Zealand 10 December 1947 Date of deposit of instrument Greece 29 December 1947 Netherlands 2 December 1948 Poland 8 January 1948 India 10 February 1949 Canada 22 January 1948 United Kingdom 16 August 1949 Iceland 10 March 1948 Denmark 25 January 1950 Netherlands 19 April 1948 Norway 25 January 1950 India 13 May 1948 Philippines 20 March 1950 Denmark 10 June 1948 Austria 21 July 1950 Egypt 17 September 1948 Luxembourg 20 September 1950 Pakistan 22 September 1948 Hashemite Kingdom of Jordan 12 December 1950 Belgium 25 September 1948 Ecuador 8 June 1951 Chile 15 October 1948 Guatemala 30 June 1951 Luxembourg 14 February 1949 Pakistan 23 July 1951 Australia 2 March 1949 Sweden 12 September 1951 Lebanon 10 March 1949 Chile 21 September 1951 Iraq 15 September 1949 Yugoslavia 23 November 1951 Israel 21 September 1949 Haiti 16 April 1952 Costa Rica 26 October 1949 Cambodia 15 October 1953 692 Yearbook of the United Nations N. STATUS OF CLAIMS FOR INJURIES INCURRED IN THE SERVICE OF THE UNITED NATIONS

The following action in respect of such claims retary-General, by a letter of 9 December 1952, occurred during 1953. submitted the additional claim to the Government On 11 September 1952, the Secretary-General of Israel. wrote to the Government of Israel requesting In reply to the Secretary-General's communi- payment to the United Nations of the sum of cations, the Permanent Representative of Israel $US 25,233.00 as reparation for the monetary to the United Nations, by a note verbale dated damage borne by the Organization as a conse- 2 April 1953, remitted the sum of $US 25,233.00 quence of the death of the United Nations mili- in payment of the claim for damage to the United tary observer Colonel André Sérot, who was assas- Nations, and $575.00 (equivalent to 200,000 sinated with the United Nations Mediator Count French francs) in payment of the claim for Folke Bernadotte in Jerusalem on 17 September damage to Colonel Sérot's father. 1948. Subsequently, the Secretary-General was re- quested by Colonel Sérot's father to present a Negotiations with Jordan for the death of Ole claim on his behalf for the payment of 200,000 Helge Bakke and with Egypt for the deaths of French francs for the monetary damage caused Lt. Col. Joseph Quéru and Captain Pierre Jeannel to him by the death of Colonel Sérot. The Sec- were still pending at the end of the year.