tutorial video tutorial video Discover the CiteMap in 3 minutes
Source(s) of the information:

Lawyers, other representatives, expert(s), tribunal’s secretary

    Advisory Opinion (second phase) - including the text of the declaration of Judge Krylov)

    222
    On 22 October 1949, the General Assembly of the United Nations adopted the following Resolution :

    "Whereas the United Nations, pursuant to Article 55 of the Charter, shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,

    Whereas the General Assembly, at the second part of its Third Regular Session, considered the question of the observance in Bulgaria and Hungary of human rights and fundamental freedoms,

    Whereas the General Assembly, on 30 April 1949, adopted Resolution 272 (III) concerning this question in which it expressed its deep concern at the grave accusations made against the Governments of Bulgaria and Hungary regarding the suppression of, human rights and fundamental freedoms in those countries; noted with satisfaction that steps had been taken by several States signatories to the Treaties of Peace with Bulgaria and Hungary regarding these accusations; expressed the hope that measures would be diligently applied, in accordance with the Treaties, in order to ensure respect for human rights and fundamental freedoms ; and most urgently drew the attention of the Governments of Bulgaria and Hungary to their obligations under the Peace Treaties, including the obligation to co-operate in the settlement of the question,

    Whereas the General Assembly has resolved to consider also at the Fourth Regular Session the question of the observance in Romania of human rights and fundamental freedoms,

    Whereas certain of the Allied and Associated Powers signatories to the Treaties of Peace with Bulgaria, Hungary and Romania have charged the Governments of those countries with violations of the Treaties of Peace and have called upon those Governments to take remedial measures,

    Whereas the Governments of Bulgaria, Hungary and Romania have rejected the charges of Treaty violations,

    Whereas the Governments of the Allied and Associated Powers concerned have sought unsuccessfully to refer the question of Treaty violations to the Heads of Mission in Sofia, Budapest and Bucharest, in pursuance of certain provisions in the Treaties of Peace,

    Whereas the Governments of these Allied and Associated Powers have called upon the Governments of Bulgaria, Hungary and

    223
    Romania to join in appointing Commissions pursuant to the provisions of the respective Treaties of Peace for the settlement of disputes concerning the interpretation or execution of these Treaties,

    Whereas the Governments of Bulgaria, Hungary and Romania have refused to appoint their representatives to the Treaty Commissions, maintaining that they were under no legal obligation to do so,

    Whereas the Secretary-General of the United Nations is authorized by the Treaties of Peace, upon request by either party to a dispute, to appoint the third member of a Treaty Commission if the parties fail to agree upon the appointment of the third member,

    Whereas it is important for the Secretary-General to be advised authoritatively concerning the scope of his authority under the Treaties of Peace,

    The General Assembly

    1. Expresses its continuing interest in and its increased concern at the grave accusations made against Bulgaria, Hungary and Romania ;

    2. Records its opinion that the refusal of the Governments of Bulgaria, Hungary and Romania to co-operate in its efforts to examine the grave charges with regard to the observance of human rights and fundamental freedoms justifies this concern of the General Assembly about the state of affairs prevailing in Bulgaria, Hungary and Romania in this respect ;

    3. Decides to submit the following questions to the International Court of Justice for an advisory opinion :

    T. Do the diplomatic exchanges between Bulgaria, Hungary and Romania, on the one hand, and certain Allied and Associated Powers signatories to the Treaties of Peace, on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania ?’

    In the event of an affirmative reply to question I :

    ‘II. Are the Governments of Bulgaria, Hungary and Romania obligated to carry out the provisions of the articles referred to in question I, including the provisions for the appointment of their representatives to the Treaty Commissions ?’

    In the event of an affirmative reply to question II and if, within thirty days from the date when the Court delivers its opinion,

    224
    the Governments concerned have not notified the Secretary-General that they have appointed their representatives to the Treaty Commissions, and the Secretary-General has so advised the International Court of Justice :

    ‘III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, is the Secretary-General of the United Nations authorized to appoint the third member of the Commission upon the request of the other party to a dispute according to the provisions of the respective Treaties ?’

    In the event of an affirmative reply to question III:

    ‘IV. Would a Treaty Commission composed of a representative of one party and a third member appointed by the Secretary-General of the United Nations constitute a Commission, within the meaning of the relevant Treaty articles, competent to make a definitive and binding decision in settlement of a dispute ?’

    4. Requests the Secretary-General to make available to the International Court of Justice the relevant exchanges of diplomatic correspondence communicated to the Secretary-General for circulation to the Members of the United Nations and the records of the General Assembly proceedings on this question;

    5. Decides to retain on the agenda of the Fifth Regular Session of the General Assembly the question of the observance of human rights and fundamental freedoms in Bulgaria, Hungary and Romania, with a view to ensuring that the charges are appropriately examined and dealt with."

    In an Opinion given on March 30th, 1950 (I.C.J. Reports of Judgments, Advisory Opinions and Orders, 1950, pp. 65 et sqq.), the Court answered :

    To question I :

    "that the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories to the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania

    To question II :

    "that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles referred

    225
    to in Question I, which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions."

    On March 30th, the Registrar notified the substance of the Court’s answers to the foregoing two questions by telegrams to the Secretary-General of the United Nations and to the Governments of all the signatories of the Peace Treaties,

    By telegram of May 1st, 1950, confirmed by letter of the same date and filed in the Registry on May 2nd, the Acting Secretary-General of the United Nations notified the Court that he had not received information, within thirty days of the date of the delivery of the Court’s Advisory Opinion quoted above, that any one of the three Governments had appointed its representative to the Treaty Commissions.

    By Order made on May 5th, 1950, the President of the Court, as the Court was not then sitting, decided: (1) to fix Monday, June 5th, 1950, as the date of expiry of the time-limit for the submission by the States concerned, of written statements on Questions III and IV of the foregoing Resolution ; (2) to reserve the rest of the procedure for further decision.

    A certified copy of this Order, the operative part of which had been notified by telegram of May 5th to the Secretary-General and the Governments concerned, was sent to all these Governments by letter of May 9th.

    By letter of May 16th, 1950, the Secretary-General of the United Nations sent to the Registrar additional documents including new diplomatic correspondence on the present case, transmitted to the United Nations by the delegations of Canada, of the United Kingdom of Great Britain and Northern Ireland and of the United States of America. These documents are listed in an annex hereto.

    By letter of June 2nd, 1950, a written statement from the Government of the United States of America relating to Questions III and IV was transmitted to the Registry of the Court.

    The United Kingdom Government had previously stated its views on Questions III and IV in the written statement submitted during the first phase of this case.

    By letter of May 5th, 1950, the Assistant Secretary-General of the United Nations in charge of the Legal Department informed the Registry of his intention to take part in the oral proceedings.

    By letters of June 12th and 22nd, 1950, respectively, the Government of the United States and the United Kingdom Government stated their intention of submitting oral statements.

    At public sittings held on June 27th and 28th, 1950, the Court heard oral statements submitted :

    226
    on behalf of the Secretary-General of the United Nations by Dr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department;

    on behalf of the Government of the United States of America, by the Hon. Benjamin V. Cohen ;

    on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser of the Foreign Office.

    Having stated, in its Opinion of March 30th, 1950, that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles of the Peace Treaties which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions, and having received information from the Secretary-General of the United Nations that none of those Governments had notified him, within thirty days from the date of the delivery of the Court’s Advisory Opinion, of the appointment of its representative to the Treaty Commissions, the Court is now called upon to answer Question III in the Resolution of the General Assembly of October 22nd, 1949, which reads as follows :

    "III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, is the Secretary-General of the United Nations authorized to appoint the third member of the Commission upon the request of the other party to a dispute according to the provisions of the respective Treaties ?"

    Articles 36, 40 and 38, respectively, of the Peace Treaties with Bulgaria, Hungary and Romania, after providing that disputes concerning the interpretation or execution of the Treaties which had not been settled by direct negotiation should be referred to the Three Heads of Mission, continue :

    "Any such dispute not resolved by them within a period of two months shall, unless the parties to the dispute mutually agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member selected by mutual agreement of the two parties from nationals of a third country. Should the two parties fail to agree within a period of one month upon the appointment of the third member, the Secretary-General of the United Nations may be requested by either party to make the appointment.

    227
    2. The decision of the majority of the members of the Commission shall be the decision of the Commission, and shall be accepted by the parties as definitive and binding."

    The question at issue is whether the provision empowering the Secretary-General to appoint the third member of the Commission applies to the present case, in which one of the parties refuses to appoint its own representative to the Commission.

    It has been contended that the term ‘‘third member" is used here simply to distinguish the neutral member from the two Commissioners appointed by the parties without implying that the third member can be appointed only when the two national Commissioners have already been appointed, and that therefore the mere fact of the failure of the parties, within the stipulated period, to select the third member by mutual agreement satisfies the condition required for the appointment of the latter by the Secretary-General.

    The Court considers that the text of the Treaties does not admit of this interpretation. While the text in its literal sense does not completely exclude the possibility of the appointment of the third member before the appointment of both national Commissioners it is nevertheless true that according to the natural and ordinary meaning of the terms it was intended that the appointment of both the national Commissioners should precede that of the third member. This clearly results from the sequence of the events contemplated by the article : appointment of a national Commissioner by each party ; selection of a third member by mutual agreement of the parties ; failing such agreement within a month, his appointment by the Secretary-General Moreover, this is the normal order followed in the practice of arbitration, and in the absence of any express provision to the contrary there is no reason to suppose that the parties wished to depart from it.

    The Secretary-General’s power to appoint a third member is derived solely from the agreement of the parties as expressed in the disputes clause of the Treaties; by its very nature such a clause must be strictly construed and can be applied only in the case expressly provided for therein. The case envisaged in the Treaties is exclusively that of the failure of the parties to agree upon the selection of a third member and by no means the much more serious case of a complete refusal of co-operation by one of them, taking the form of refusing to appoint its own Commissioner. The power conferred upon the Secretary-General to help the parties out of the difficulty of agreeing upon a third member cannot be extended to the situation which now exists.

    Reference has been made for the purpose of justifying the reversal of the normal order of appointment, to the possible advantage that might result, in certain circumstances, from the appointment of a third member before the appointment by the parties of their respective commissioners. Such a change in the normal sequence could only

    230
    of remedying a default for the occurrence of which the Treaties have made no provision.

    Consequently, Question III must be answered in the negative. It is therefore not necessary for the Court to consider Question IV, which requires an answer only in the event of an affirmative answer to the preceding Question.

    For these reasons,

    The Court is of opinion,

    by eleven votes to two,

    that, if one party fails to appoint a representative to a Treaty Commission under the Peace Treaties with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, the Secretary-General of the United Nations is not authorized to appoint the third member of the Commission upon the request of the other party to a dispute.

    Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this eighteenth day of July, one thousand nine hundred and fifty, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

    Whole document
    page.
    Click on the text to select an element Click elsewhere to unselect an element
    Select a key word :
    1 /