Interpretation of Peace Treaties with Bulgaria, Hungary and Romania - Advisory Opinion of the Court of 18 July 1950 on the second phase of the case

The îo llowingj.njqorma tion frorn $hc Regi stry of the International
Court of. Justlce has heen communicated %O the Press:

On July 18th, 1750, the Court gava its advisory ooinion on the
second .hase of thc Case uf the Inter-~retation of !?eaee Treaties signed
with Bulgaria, Hungary snd Eomania. Hy Resolution of October 22nd,

1949,the General Assmbly of the United Nations had submitted tçithe
Court for advisorg o ?inion the following four questions:

1 Do ,Lhe di?lom.tic exchanges betureen Bulgmia, Hungary and
Romanie on the one band and certain Allied and Associateci Pawers
signatories to the Treaties of Peacc on the 0th~~)concerning the
inplemntation of Article 2 cf thù Treatics withBulgaria a.d
Hungaryand mticle 3 of the Trcnty with Romnia, disclose disputes
subject to the provisions fir the settlement of disputes contained
in Article 36 of the Trcaty of P2ace with Bulgaria, Article 40 of

the Trcaty of Peacc with Hungary and drticle 38 of ,theTrcaty af
Peace ~dth Romanis? Il

In th¢ ment of an ai'firmtivc reply to Question 1:

IfII. Ara the Governnonts af Qulgaria, Hungary and 3o'i;ania
obligatcd tu cerry out the provisions of the Articles refcrred to
fn Question 1, including the ~rovisions .for the appointment of
their r~presant~ztive s to tllc Trcaty Comrhssions?"

In the evsnt, of'an af l"irm%ive rcply to Question IX and if within
thirty days froiîl th? date ~hen the Court dclivers its osinion,
thc Goverment o concerned hs~ not notified the Sccrctary-kncral
th~t they haw: appointed their rcprescntatives to the Trcatg
Conunissions, ad the Sccretary-Gen;.ral haisso advised the Inttr-
national Court of Justice :

TILI, If one qzrty fnila tu mpoint a represcntative to a
Treaty Commission under tho Troatics of Pcace with Bdgarla,

Hungary and rom ab niw^kre th3-t;party is cibligated to appoint a
represantativc to thc Trwty Cornmj_ssicin,is the Secrctary-General.
of the United Kations nuthorized ta a??clint the third m~mber of,
the Commissionu.iion th2 requcs* of the cther DE-rty to a dispute
according to th2 ~rovisions of Lhc resqectivc Treaties?"

In the event of an affirmative rcqly to Question III:

'TV. tlould a Treaty. Cormission composedof a reprcsentative
of one pictg and a tl-iirdnimber qpolntcd by the Sccretary-Geincral

of the United Netions constitute a Cormission, tdthin the ~n~aning
of th^ rclevant Tr~aty zrticlcs, coin$etenk to in&e a definitive
binding decision in settlcmcnt of n disputc?ll

On Warch 30th, 1950, the Court answcred the first two questions
by sayingthat diplorn;.tic exchangcs disclosed the existence of disputos
subjzct to the Treaty provisions for thc scttlernent of disputes and
thet the Govcrnments of BuLgarin, Hungary and Romania wrc undcr obligation
to appoint thclr repres~ntatives to tnc Trcaty Commissions.

On 14ay lst, 1950, th2 .kcting Sccretzrg-Gcncral of the United Nations
notified $hc Court that, within ?O days of the date of the dcliverg of'
th¢ Court s Advisory Opinion on the first two questiqns, he had not
received information thctany one of thc thrce Govzrn-~ents concarned
, had appointed it s repressntatlw to thd Reaty Codssiore. On Jme 22nd, 1950, the buzrmaent of t'ne United States of herica
sant a written atatement . The United Kingdon Cziv~rnmcnt hczd prevkously
stetzd its views on C:uestions III and IV in the uritten statcment sub-
mitted during thé first phase of the case,

At gublic sittings held on Juno 27th and 20th, 1950, the Court

heard oralstatemcnts submitted on bchalf of tho Sccretary-Gznera of
the United Nations by the Assistazt Secretary-mncral in ch~ge of the
LegalDepartment and on behalf af the Gavcrmnt of thc United States
of il.wrics and of tinc GovGrnmzn tf thc Unitcd Ilingdom,

'In its opinion th: Court 'said thct, altl-ioughthe Litcral scnse
' did not complvtclycxcludc the passibility of apsointing the third
mcmbcr bcfore appointing bath m.tional cormissionc sr, the naturzl and
ordinsry mcaning of thc toril] requircd thet the latter bc appointcd
bcfore thc third mzmbcr, This clcc.rly resultcd. from tha scquencc of
cvcntç contcmpldxd by the 4rtic3e. it tas thc normalorder
liorcov#r,
in =bitration practicc md, in thc abscncc of any exprcss provision
to tr~ contrnry, ~Iz~FL '~S nG roason. to supposg that thc prtlcs wished
to dcpart from it. a

The Scerctary-Gei:eral 's powcr to appoint a third mcm'ûcrdcrived
sokcly from the agrciement of t11c ?artios, as cqressed in the disputes
clause of thc trsatics. By its vcry neturo such a clause was to be
strictly construed and could bo zp?licd only in thc cssc ex~rcssly
~roddcd thcreby. Tho case znvisegcd in thc Trmtics ?\ras that of the
fxilure of the partics to zgco upon th6 sslection of th tMrd fi~ernbar

and not thc rnuch more scrious onc of a com?l:t~rcfusal of cooyeration
by one of them, talung thc Torm of refus in^ to zgpoint its own Commissioncr:

changc in the normalskquoncc of ap*ointmcnts could only be
justified i.fit w~c sho~m by th2 ettitudz of th2 ?7,xrtics that thoy
desircd such a rzvzrsal tri facilitate thcconstitutio nf Conmissions
in nccordai~co ~lith th^ tzrms of the Trcaiies. But such Iras not the
~rescnt c.s¢, In thzsd circunstanccs the appointm~nt of the third
member by thz SecretmpGcncral, instcad of bringisg about the con-
stitutlo nf .a thrcc-mcmb~ Commission ~rovidcd for bg the Trdaties,

would r csult only in the constitution of a two-n~mbcr Codssian, not
thc kind of Cormiosion for which the Troatics had ~ro~ded, The 0
oppositionof th2 onc n;:tional Coinmissionx could 2r cvcnt thc Csimmission
fron rcaching nny dccision. It could decide only by unsninity, whereas
the dislutcs clausc! ;irodded for a ma jority dccision. Thc;rc was no
doubt that Gl-iedecisions of a 'cm-mcmber .Com.rissioi~, one of wi~ich was
designatcd hg ons prty only, muid nat havc the smc desec of mord
zuthority as thosc of a thrte-mcmbor Co~ssion,

In shortt the Sccrctary-Gcncra w uld bc authorizud to procccd
to thc appointm~nt of a tliird rncmbcr only if it wcrc possible to con-
stitute a Commission in conforfitg with the Truaty?ravisions,

The Cowt had dwlared in its Opinion of Ifnrch 30th tkt thc
kvorm~nts of Bulg~ria, Hungary Ramania parc undcr ~,,nobligation
to appoint thcir rcprcsentative to tic: Troaty Commissions. Ecfusal to
fulfil a Treaty obligation would involvc intcrn~ttond rcsponsibility.
hÏcv~rthcless, such a r ofusal çauld not alter Lhc conditions coi~tcnq~latcd
in thc Trcatlcs for thc cxercise of Uha Secratary-Gcnara17 psrfdr of
appointment. Thosc conditions wcre not prcsent in this c asc and thcir
lsck wzs not suppllsd by the faetthat thci' nbsancc was duc t~ the
'oreach of a Troaty obkiga.ti.on, Thc failure of ,mchinc;ry for scttllng

diarutes by rcasnn of tk: practical impossibility of creating thc
Godssion srovidcd for in tha Trmtics ms one thing; int~rnztional
resnonsibility anothar . One could not rcincdy the brcach of a Trcaty
obligation by crcating a Commission whicl~ was not the End of
., Commission ,, ,Commissioncontemplated by t11~ Tr~aties. It was the Court'sduty to
intdrprat Trcatlcs, nat to rcvisc tbern,

Nor could thc yriiiciplc th& a clause must bc intùrpreted so as to
@,ive it rirnctic~LL cffcct justify th2 Court ir!attributing to the provisions
a mcaning which muld bc contrary ta thoir lçttcr zrid s-rilrié.

The Tact tlxt an zrbitratio nomxission may rmkc! a mlid dccision
although thcoriginal numbcrof its mcmborsis latcr reduced, for instance,
by dthdi.awal of one oi thc arbitrctars, did not p2dt drzwing an
annlagy with thc czse of thc appointnlcnt of a tkird ~crnber by khc Sccrctnryc
Gcnercl in circumstancos other thnn thosc contcraplztsd in thc Trcatics,
bccccusc this rz.ised yrcciscly th; qucstion of thc initial validity of .
the constitution of th^ Co~iv~lissicin.

Nor could it bc said that n agativc anzwr to Question III muld
scriously jcopxdize the futiirc of the Rmny similar arbitrntion clzuscs
in othùr treeties, Thc practicc' of a-bitr~tion showcd that, whcrca:
àraftsmcn of srbitrztion conwntions oPGcn took czrc to provi_de for the
çonsoqucnc6s of thc inabilitg of the ;x,rtics to zgcc uyon the aygoint-
ment of c Lhird mcmbcr, they had, ~<aart fron cx~c~tioilsl cases, Yi>- .
frriincd f rom contcmpl;~.ting th2 possibility of 3 refusal by G pcrty éo
appoint its own Commissionor, The faw Trcctizs cuatzining ùxpress
?ravisions on Ghc rv,-,tter indicated thct tho siPtory Stztes In thosc
casos fclt thc im3ossibility 3f reme@:ing the situation sinply by wy

of intcr;x-etntion of thu Srentias, In fsct, thc risk was a smll one
as, normlly, each ?rrty 11~da direct intcrcat in the appointndnt of
its Commissione rd must, in any casc, bc :7-irosnwdta obscrve its
Trcsty obligations. Thzt this was not so in th< ;>rcscnt casc did nat
justify thc! Court in @X%cding its judicinl finction on th< prctexf, of
ramedjring a defmlt for tha occurrùncc of which th2 Tryctties h2d made
no povision.

For thos3 ro?sans tho Court dccided to znsmr 12uastion III in
thb n~gativc: and thcrefore it was not ndcosszry for it to considzr

Ouestion IV.

Tho. Court's ar,smr was givcn by 11 votzs to 2.

Judgc Xrylov, whilc joining in the conclusions of thc Opinion ad
tkc gancral linsof zrgmi~nt, dcc1:rcd hii:ï~~lf unzblù to concur in the
rcasons doaling with intdrnztional rcsponçibility as, in his opinion,
this problcr,! wnt bcyond th^ scopc of thc: question put tcith2 Court.

Judgcs Rend and Azcvcdo appcnded stntcmcnts of thoir disscnting

opinions.

Thc Hague, July 16thj 1950,