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The Recent Judgment of the International Court of Justice in the Case Concerning the Aerial Incident of July 27, 1955, and the Interpretation of Article 36 (5) of the Statute of the Court

Published online by Cambridge University Press:  28 March 2017

Lucius C. Caflisch
Lucius C. Caflisch*
Affiliation:
LL.B., School of Law, University of Geneva
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Extract

On July 27, 1955, an aircraft belonging to El Al Israel Airlines Ltd., making a scheduled commercial flight between Vienna and Lydda (Israel), penetrated over Bulgarian territory without previous authorization and was shot down by Bulgarian military aircraft. All the crew and the fifty-one passengers were killed. The ensuing diplomatic correspondence and negotiations producing no satisfactory results, the Government of Israel decided to submit the dispute to the International Court of Justice. Proceedings were instituted against Bulgaria by Application of October 16, 1957.

Type
Research Article
Information
American Journal of International Law , Volume 54 , Issue 4 , October 1960 , pp. 855 - 868
Copyright
Copyright © American Society of International Law 1960

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References

1 In its Memorial, the Government of Israel stated that “ … the Government of Bulgaria has furthermore admitted that in so doing its armed forces displayed a certain haste and did not take all the necessary measures to compel the aircraft to land… . “ Quoted in Case concerning the Aerial Incident of July 27th, 1955, Preliminary Objections, [1959] I.C.J. Rep. 127 (hereinafter referred to as Judgment) at 130; digested in 53 A.J.I.L. 923 (1959).

2 Judgment 131-132.

3 Shachor-Landau, ‘ ‘ The Judgment of the International Court of Justice in the Aerial Incident Case between Israel and Bulgaria,” in 8 Archiv des Völkerrechts 277-290 (1960). This author emphasizes that the Court's Judgment “ … rests upon an unfortunate departure from established rules of interpretation and gratuitously introduces into the Constitution of the United Nations the notion of an unequal status of different members attended by varying rights and duties” (pp. 289-290). Shachor- Landau appears to be correct in asserting that a double consent to the jurisdiction of the I.C.J, is wholly unnecessary: “ It would seem … to be the raison d'etre of Article 36 paragraph 5 to dispense with the necessity of submitting once again to the Court's jurisdiction” (p. 286).

4 For history prior to Dumbarton Oaks, see P. De Leyrat, “L'Audience de Justice du Monde, Deux Noms—Une Cour,” in 13 Nouvelle Revue de Droit international privé (de La Pradelle) 337-359, at 347-349 (1946).

5 Aug. 21-Oct. 7. See Hudson, , “The Twenty-Fourth Tear of the World Court,” 40 A.J.I.L. 1-52, at 3-4 (1946).Google Scholar

6 April 9-20, 1945.

7 On the initiative of the United States. For the discussions of the Committee, of. Russell, and Muther, , A History of the United Nations Charter 864-875 (Washington, 1958).Google Scholar

8 April 25-June 26, 1945.

9 Russell and Muther, op. cit. 876.

10 13 U.N.C.I.O. Docs. 248.

11 Ibid. 227.

12 Ibid. 249.

13 lbid. 250.

14 For discussion, see Joint Dissenting Opinion, Judgment 161-163.

15 When twenty-nine signatory states, including all the future permanent members of the Security Council, had deposited their instruments of ratification. Cf. Art. 110, par. 3, of the Charter.

16 P.C.I.J., Series A/B, No. 63.

17 See Kelsen, , Principles of International Law 364-365 (New York, 1953).Google Scholar

18 Ibid. 364.

19 The Judges having been elected on Feb. 6-9, 1946, the Court began its first session on April 3; the Public Inaugural Meeting was held on April 18. See 1946-1947 I.C.J. Yearbook 26-27, 29-38; and Hudson, , “ The Twenty-Fifth Year of the World Court,” 41 A.J.I.L. 1-19, at 3-4 and 15 (1947).Google Scholar

20 Kelsen, , The Law of the United Nations 595 (London, 1950).Google Scholar

21 Text of the resolution: League of Nations Official Journal (1939-1946), Special Supp., No. 149, pp. 256-257 and 277-278. List of participating delegations, ibid. pp. 10-16. The enemy states (with the exception of Finland) did not participate, but later undertook “ … to accept any arrangements which have been or may be agreed for the liquidation of the League of Nations and the Permanent Court of International Justice… . “ Peace Treaty with Bulgaria, Art. 7; with Hungary, Art. 9; with Rumania, Art. 9; with Finland, Art. 11 (unnecessary, in our opinion, since Finland was represented in the last League Assembly); with Italy, Art. 39. A few other states, though invited, did not take part in the last Assembly. It is uncertain and irrelevant whether the theory of implied consent was applicable to them.

22 Kelsen, The Law of the United Nations 595.

23 Schwarzenberger, 1 International Law 534 (London, 1957), seems to affirm that the termination of a treaty by common consent requires unanimity unless otherwise provided. The unanimity rule, however, is possibly weakened by considerations of a political order: a convention may cease to exist because of lack of effectiveness if politically influential Powers withdraw their further participation. This was one of the reasons for the disappearance of the old Court. Cf. also Hudson, loo. cit., 41 A.J.I.L. 3 (1947): “Though some of the parties to the 1920 Protocol of Signature were not represented in the Assembly when this resolution was adopted, the authority of the resolution has passed without challenge.”

24 Moreover, the Assembly could determine, on proposal of the Council, under what conditions non-member states parties to the Statute could participate in the election of the Judges. Cf. the revised Statute of the P.C.I.J., Art. 4, par. 3 (1936).

25 Apparently of the same opinion: Hoyt, The Unanimity Rule in the Revision of Treaties. A Re-examination 61-62 (The Hague, 1959), who points to the fact that “All of the parties to the Court's Statute except Albania, Siam, Spain and the defeated enemy States also went through the form of recording their assent to the Court's dissolution” (p. 62). See also note 21 above.

26 13 U.N.C.I.O. Does. 307-308.

27 Joint Dissenting Opinion, Judgment 180-182.

28 Judgment 143.

29 Ibid, (emphasis added).

30 2 Traité de droit international public 136 (Geneva, 1954).

31 Quotation from Judge Goitein's Dissenting Opinion, Judgment 203.

32 This conflict was practically irrelevant: see above, p. 858, and note 19.

33 2 Manuel élémentaire de droit romain 282-287, pars. 205-209 (4th ed., Paris, 1948); quotation from p. 282, par. 205.

34 lbid. 373, par. 206.

35 (1) A state has to be a “party to the present Statute.” (2) Its declaration accepting the Optional Clause under Art.

36 of the old Statute must be “still in force.” 36 See Judgment 142, referring to the Case of the Monetary Gold removed from Rome in 1943,‘[1954] I.C.J. Rep. 32. The fact that pars. 2 and 5 of Art. 36 were always regarded in San Francisco “ … as two aspects of the same wider question at the same meetings, in the same speeches, in the same reports” (Joint Dissenting Opinion, Judgment 160, referring to 13 U.N.C.I.O. Docs. 246-250 and 557-559) entirely confirms our thesis.

37 [1950] I.C.J. Rep. 128; 44 A.J.I.L. 757 (1950).

38 The difference between Arts. 36 (5) and 37 is well expressed in the respective French versions of these two provisions. Art. 36 (5): “Les déclarations faites … pour une durée qui n'est pas encore expirée… . “ (The original French text referring to “déclarations qui sont encore en vigueur” had ultimately been changed by Committee IV/1, undoubtedly in order to emphasize the difference with Art. 37. Cf. p. 857 above, and note 11.) Art. 37: “Lorsqu'un traits ou une convention en vigueur. . . .” (Emphasis added.) The term “en vigueur” relates to the validity of such conventions as a whole. See Cecehetto, “ L a posizione dell'Italia rispetto all'art. 37 dello Statuto della Corte internazionale di Giustizia,” in 39 Eivista di Diritto Internazionale 339- 343, at 342 (1956): “L'espressione ‘ trattatio convenzioni vigenti’ contenuta nell’ articolo 37 deve essere intesa nel senso che il rinvio ha per oggetto trattati che siano vigenti nel loro insieme.” The wording of Art. 36 (5) merely refers to the expiry of a certain period of time. If Art. 36 (5) concerned the validity proprio sensu of the declarations, it would say so, by also using the term “en vigueur.” Contra: Cecehetto, loc. cit., esp. 343. Apparently, this author does not distinguish the different terms used in the French texts of Arts. 36 (5) and 37, and seems to favor a restrictive interpretation of Art. 36 (5).

39 Joint Dissenting Opinion, Judgment 169.

40 Ibid. (emphasis supplied).

41 An expired declaration cannot be renewed. Cf. 1 Lauterpacht 's Oppenheim, International Law 949 (8th ed., London, 1955): “Kenewal of treaties is the term used in connection with the prolongation, before their expiration, of such treaties as were concluded for a limited period of t i m e . “ This can be done either by a new convention or by tacit renewal.

42 Joint Dissenting Opinion, Judgment 170.

43 Ibid. 168.

44 Ibid. 166.

45 1 Guggenheim, op. cit. 132-133 (Geneva, 1953) and references indicated there.

46 According to the majority opinion, Art. 36 (5) would have to be read as follows: “Declarations made under Article 36 of the Statute of the Permanent Court shall be deemed as between parties to the present Statute who have become parties thereto prior to the dissolution of that Court to be acceptances of the compulsory jurisdiction of the International Court of Justice… . “ Quotation from Joint Dissenting Opinion, Judgment 157-158.

47 13 U.N.C.I.O. Docs. 384.

48 Separate opinion of Judge Badawi, Judgment 148. This Judge was also of the opinion that Art. 36 (5) could only apply to original Members of the United Nations and thus rejected the alternative argument of the majority, whereas Vice President Zafrulla Khan thought that only the second alternative was correct. Judgment 146.

49 Ibid. 155.

50 Cf. Joint Dissenting Opinion, Judgment 192-193, mentioning, inter alia, the Persian declaration of 1930.

51 Judgment 177-178.

52 Cf. Engel, “ The Compulsory Jurisdiction of the International Court of Justice,” 40 Georgetown Law Journal 41-66, at 50-51 (1951-1952).

53 See Joint Dissenting Opinion, Judgment 184.

54 Finland is omitted in the enumeration made by the Joint Dissenting Opinion, Judgment, ibid.

55 Portugal v. India (Preliminary Objections), [1957] I.C.J. Rep. 125. Since the pleadings of the ease are not yet available, we do not know whether the issue was effectively raised by the parties.

56 Admission of Portugal to the United Nations: Dec. 14, 1955; “ n e w “ declaration of Dec. 19, 1955.

57 See Rosenne, , The International Court of Justice 322-323 (Leiden, 1957)Google Scholar. The circumstances under which such declarations may be terminated are far from being clear. Cf. Hambro, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice,” in 25 Brit. Yr. Bk. of Int. Law 133-157, at pp. 142-143 (1948), where the case of Paraguay under the League of Nations is mentioned; see also Hudson, The Permanent Court of International Justice 1920-1942, p. 476 (New York, 1943), and Kelsen, “Withdrawal from the United Nations,” in 1 Western Political Quarterly 29-43, at 35-37 (1948).

58 1946-1947 I.C.J. Yearbook 112, esp. note 1 (qualifying Siam's acceptance under the old Statute as “Declaration made under Article 36 of the Statute of the Permanent Court and deemed to be still in force [Article 36, 5 of the Statute of the present Court] “) . 1947-1948 ibid. 38; 1948-1949 ibid. 37; 1949-1950 ibid. 41. It goes without saying that the Yearbooks published by the I.C.J, are not authoritative and do not involve the Court's responsibility.

59 Joint Dissenting Opinion, Judgment 182 (emphasis supplied). Cf. also 1950- 1951 I.C.J. Yearbook 203.

60 General Assembly, Resolutions, 1946-1949, Res. 171 (II), p. 104 (emphasis added).

61 Charter of the United Nations 480 (2nd ed., Boston, 1949).

62 The Law of the United Nations 524.

63 “reorganisation des Nations Unies et la Cour Internationale de Justice,” in 78 Hague Academy Recueil des Cours 511-574, at 558 (1951, I ).

64 '’ The Jurisdiction of the International Court of Justice,” in 34 Grotius Society Transactions (1948) 127-140, at 128 (London, 1949, emphasis supplied).

65 “Preservation” in the material sense.

66 Loc. cit. 49 (emphasis added).

67 Ibid, at 50.

68 This term also may be used in the material sense only.

69 Together with Guerrero, last President of the old, and first President of the new, Court.

70 LOC. cit., in 40 A.J.I.L. at 34 (1946). Concerning Siam, see also Hudson, loc. cit., in 41 A.J.I.L. at 10 (1947).

71 Cf. note 65 above.

72 Loc. cit., 40 A.J.I.L. at 34-35 (1946). The terms “transfer” and “lapse” should not be taken literally.