302 OBSERVATIONS OF U.S.A. (II 60)
"South of the town of Stanke Dimitrov the aircraft was inter-
cepted by two Bulgarian fighter planes which received orders to
force it to land at a Bulgarianirport.
"The fighter planes warned the aircraft, in accordance with
intemational regulations, to land. In spite of this, it did not obey
but continued to fly in a southerly direction in an attempt to
escape across the Bulgarian-Greek frontier.
"In these circumstances, the two fighter planes of the Bulgarian
anti-aircraft defense of this area, astonished by the behavior of the
aircraft, opened fire, as a result of which it caught fire shortly
th"Adopting the conclusions of the ospecial govemmental commis-
sion responsible for the investigation of the case, the Bulganan
Government admits that the causes of the unfortunate accident
sufferedby the EI-AI aircraft may be summarized as follows:
"1. The aircraft departed from its route, violated the frontier of
the Bulgarian State and without any warning penetrated deeply
into the interior of Bulgarian air space. Equipped with the most
modem aerial navigating instruments, it could not have failed to
be aware of the fact that it had violated Bulgarian air space. Even
after having been warned, it did not obey but continued to 0y
towards the south in the direction of the Bulganan-Greek frontier;
"2. The Bulgarian anti-aircraft defense units manifested a
certain haste and did not take al1 the steps required to force the
aircraft to obey and to land."
When the El Al Airlines Constellation aircraft was fired upon
by Bulgarian pilots, it caught fire, burst into flames over the town
of Petric (close to the Greek frontier), and crashed in pieces near
the village of Sherbanovo, Bulgaria. All passengers and memben
of the crew aboard the plane were killed. Among the persons on
board were nine individuais who possessed American nationality
and whose next of kin are of American nationality.
The facts with respect to the incident of July 27. 1955 as devel-
oped by the investigation of the United States are more fdy set
forth in the Memorial. For present purposes, when the case is
before the Court on jurisdictional issues, the United States believes
that the statement of facts set forth in the Memorial sbould be
accepted.
The United States Government on August 2,1955. through the
Swiss Legation in Sofia, presented to the Government of Bulgaria
an aide-mémoire protesting the Bulgarian actions of July 27, and
asking that the Bulgarian Government
"(1) take al1 appropriate measures to prevent a recurrence of
incidents of this nature and inform the United States Government
concerning these measures; (2) punish al1 persons responsible for OBSERVATIONS OF U.S.A.(II 60) 303
this incident; and (3) provide prompt and adequate compensation
to the United States Govemment for the families of the United
States citizens killed in this attack."z
On August 4. 1955, the Bulgarian Ministry of Foreign Affairs
replied in the diplomatic note which has been referred to above.
This note concluded as follows:
"The Biilgarian Government and people express once again their
profond regret for this great disaster which has caused the death of
completely innocent people. The Bulgarian Govemment ardently
desires that such incidents should never happen again. It will
cause to be identified and punished those guilty of causing the
catastrophe to the Israeli plane and will take ali the necessary stepç
to insure that such catastrophes are not repeated on Buleanan
territory
"'i'lil3iilgariaii(;orïriiriieiit syinp~thizei d.:cplyth?hrclntirrs
of tticvictims and 1s prrpnrrd to :ijsumc responsibility for com-
i>eiisntio~lucto tlitir families. as \ircll;is its sli:ircof comucnsLtion
for material damage incurred."
On December 14, 1955. Bulgaria was admitted to membership
in the United Nations after having made a series of applications
for admission.
On August 22, 1956, the United States Government, again
through the Swiss Legation in Sofia, communicated to the Bul-
garian Government a detailed claim totaling $257,875. *
On August 8, 1957, the Swiss Federal Political Department
communicated to the United States Embassy in Bern a statement
made by the Second Vice Minister of Foreign Affairs of Bulgana. 4
The Swiss communication read, in part, as follows:
"Mr. Anghelov stated that the Bulgarian Government, as the
latter has always repeated, is not responsible for this catastrophe.
The responsibility lies with the Israeli Company. However, wishing
to make a gesture with regard to the families of the victims, the
Bulgarian authorities have decided to grant to each of them and
to deposit in their favor at the National Bank of Bulgaria the amount
of 56,000 levas. This sum woiild be transferable and convertible in
currency. It seems that an identical proposa1 was submitted to the
diplomatic representatives of Austria, Great Britain and I~rael."~
The United States Govemment replied to the statement of the
Bulgarian Foreign Ministry in a note of October II, 1957, delivered
to the Bulgarian Government through the Swiss Legation in Sofia.
This aide-memoire is given in Anne1 to the United States Application.
The note embodying this daim isgiven in Annex 3 tothe United States Ap-
plication.
< At the officiarateof exchange the sumnnof 56,000levas would have beention.
approximately equivalent to 8,300dollars in United States currency.
This note is giveas Annex 5 to the United States Application.The note rejected the Bulgarian proposa1 of an ex gratin payment,
and repeated the request for payment of the sum of $257,875. The
note asserted that the Bulgarian Government was legally responsible
for the consequences of the aerial incident of July 27, 1955. and
that the United States Government could not accept"any conditions
making payment a matter of grace or arbitrarily limited in amount
withodt regard to actual damage inflicted and suffered."
As indicated earlier in the present statement, the United States
Government filed an application in this Court on October 28, 1957.
The United States embarked upon this course for two reasons.
In the first place, the United States wished to pursue remedies
available to it on account of injuries to American. nationals. The
course of the diplomatic correspondence between the United
States Government and the Govemment of Bulgaria compelied
the United States to conclude that no just settlement of the United
States claims was attainable through negotiation, the 1955 Bulgar-
ian undertakings to the United States having been repudiated by
Bulgaria in 1957.
There was a further reason for commencing these proceedings
when the negotiations with the Bulgarian Government proved
fmitless. The United States Govemment in its aide-mémoire of
August z, 1955, had asked that the Bulgarian Govemment take
al1 appropriate measures to prevent a recurrence of incidents of
this nature and punish al1 persons responsible for this incident.
The Bulgarian Govemment in its note of August 4,1955. adrnitted
that its anti-aircraft defenses had acted in haste and stated that
measures would be taken to ensure against recurrence of such action.
Upon Bulgaria's denying legal responsibility, it appeared that
the Government of Bulgaria had reversed its position and was
now denying that its action in shooting down the aircraft was
wrongful. This reversal raised crucial issues affecting the lives and
safety of large'numbers of persons on board civil aircraft as pas-
sengers or crew menibers and affecting the conduct of civil aircraft
operatious throughout the world. The United States Govemment
considered these issues so important that they should be impar-
tially adjudicated by the International Court of Justice. Impartial
adjudication would settle, by the orderly and peaceful means of
law, any doubts which might exist concerning the rights and duties
of a State when overîlown by civil aircraft.
As stated earlier, the contentions of the United States regarding
the factsand the law in the present case areset forth in the Mernorial
filed by the United States Government on December z, 1958. II.ISSUES NOW BEFORE THE COURT (RELATING TO
JURISDICTION)
Four objections to the jurisdiction of the Court have been made.
The essence of these objections, and the United States conclusions
concerning each of them, are as follows:
The Government of Bulgaria contends that its acceptance of
compulsory jurisdiction had expired and was not in force on the
date when the present proceedings were instituted, with the result
that the International Court of Justice has no jurisdiction to
consider this case. The United States believes that the Bulgarian
acceptance of jurisdiction had not then expired, since Article 36,
paragraph 5 of the Statute of the Court, read in conjunction with
the Bulgarian declaration of1921, does apply to this case; and the
United States believes that the Court has jurisdiction to hear and
determine it.
The Govemment of Bulgaria contends that, if the United States
relies upon its declaration of August 26, 1946, as an indispensable
part of the basis for this Court's jurisdiction, Bulgaria is entitled
to invoke on the basis of reciprocity a reservation made by the
United Statesin its declaration. The Governmeut of Bulgaria asserts,
accordingly, that the matters in controversy in the present case
are esseutiaily within the domestic jurisdiction of the People's
Republic of Bulgaria, as determined by the People's Republic of
Bulgaria. The United States maintains that the reservation in
question does not permit the Government of the United States, or
any other government seeking to rely on this reservation reciprocal-
ly, arbitrarily to characterize the subject matter of a suit as "es-
sentially within the domestic jurisdiction". Where a subject matter
is quite evidently one of international concern, and has so been
treated by the parties to the suit, it is not open to either of them
to determine that the matter lies essentially within domestic juris-
diction. In the view of the United States, the nature of the aerial
incident of July27,1955, andthe course of negotiationssubsequently
between the United States and Bulgana preclude a determination
that this matter is one of domestic jurisdiction beyond the compe-
tence of the International Court of Justice.30~ OBSERVATIONS OF U.S.A.(1160)
C. TERMS OF THE UNITEDSTATES APPLICATION
Altematively, the Bulgarian Government contends that, if the
United States in filingits Application has relied not upon thedeclar-
ation of August 26, 1946, but upon statements contained in the
Application inthe present case, the International Court of Justice
possesses no compulsory jurisdiction over Bulgaria. The United
States Government agrees that apart from the United States
declaration of August 26, 1946, there is not a basis for cornpulsory
jurisdiction.
D. EXHAUSTIO NF LOCAL REMEDIES
The Bulgarian Government contends that the United States
Application in the present case is inadmissible because the American
nationals onbehalf of whom claims are presented have not exhausted
local remedies under Bulgarian law. The United States does not
consider that any requirement for exhausting local remedies is
applicable to the United States Government claim in the present
case; moreover, the United States does not consider that there are
adequate remedies under Bulgarian law available to the American
nationals in question. III. SUMMARY OF ARGUMENT
A. The Bulgarian acceptance of compulsory jurisdiction had not
expired and was still in force when the present proceedings were
begun, thus giving the International Court of Justice jurisdiction
in this case by virtue of Article 36, paragraph 5 of the Statute of
the Court.
I.The Judgment ofthis Court on May 26,1959 in the casebetween
Israel and Bulgaria does not conclude the Parties in the present case.
This is made clear by Article 59 of the Statute of the Court.
Particularly where the interpretation of a constitutional text
(Article 36,paragraph 5)is in question, no doctrine of stare decisis
precludes reexamination of the holding in a previous case in this
Court.
2.The Bulgarian acceptance of compulsory jurisdiction had not
expired and was stiii in force when the present proceedings were
instituted.
a. The consent of the two Parties in this case to the Court's
junsdiction was given, on the part of the United States, in its
declaration of August 26, 1946 and, on the part of Bulgaria, in
Article 36,paragraph 5 of the Statute, read in conjunction with the
Bulgarian declaration of 1921.
b. Article 36, paragraph 5, was not limited in its operation to
"signatories" of the United Nations Charter or "original Members"
of the Organization. This is apparent from the provisions of Article
37 of the Statute and from the fact that the terms "signatories" and
"original Members" were used by the drafters at San Francisco
when these meanings were intended. The negotiating history of the
Charter does not lead to a contrary conclusion. Articl36, paragraph
5 applies "as between the parties to the present Statute" whenever
they stand in that relation to one another. There are no classes of
"parties", depending on date of admission to the Organization or
of becoming a party to the Statute. It is evident from the Charter
that States other than signatories at San Francisco were expected
to become United Nations Members and, therefore, parties to the
Statute of the Court long after the Organization came into being;
indeed, provision was even made for non-Members to become parties
to the Statute (Article 93). Thailand, which did not become a
United Nations Member until December 1946, considered dunng
the years 1947-49 that its declaration of 1940 (accepting the
compulsory jurisdiction of the Permanent Court of International
Justice) was covered by Article 36, paragraph 5 of the new Statute.
c. The liquidation ofthe Permanent Court of International Justice
before Bulgaria's admission to the United Nations did not avoidthe application of Article36, parag~aph 5 to the Bulgarian declar-
ation of 1921. Article 36, paragraph 5 did not become operative
upon the liquidation of the Permanent Court but upon a declaring
State (under Article 36 of the old Statute) becoming a party to the
new Statute. Bulgaria did not, in any event, become bound by the
dissolution of the Permanent Court until after Bulgaria had filed
an application for admission tothe United Nations stating Bulgaria's
acceptance of al1obligations devolving from membership, including,
of course, the obligations of Article36, paragraph 5 of the Statute
of the Court. The Bulgarian declaration of 1921 was without limit
of time; it had no expiration date reached before Bulgaria became
a party to the Statute of the Court, in contrast to certainother
States whose declarations under the old Statute expired before they
becanie parties to the new Statute.
B. The Govemment of Bulgaria is not entitled to determine that
its dispute with the United States concerning the aerial incident
of July 27, 1955,is a matter essentially within domestic jurisdiction
and, hence, not subject to the compulsory junsdiction of the Inter-
national Court of Justice.
I. While Bulgaria is entitled to invoke, reciprocdy, any of the
reservations contained in the United States declaration of 1946,
Bulgaria cannot exceed their proper scope in making its defense.
Bulgaria cannot detemine that the United States claim based on
the incident of 1955 is essentially within Bulgaria's domestic juris-
diction, since any such detemination would fly in the face of
actuality and would ignore the intemationai character accorded
the claim by the parties in their previous negotiations. United States
reservation (b) does not permit the United States or any other State
to make an arhitrary determination, in bad faith.
z. In the view of the United States, Bulgaria has failed to make
a showing of any valid considerations of security which would form
the basis for a conclusion that the present claim lies "essentiaily
within the domestic jurisdiction of the People's Republic of Bul-
garia". The United States is prepared to show, by evidence and
argument on the merits, that the facts of the incident belie any
threat to Bulgarian national security.
3. With respect to Bulgaria's third preliminary objection, the
United States does not rely upon any statement contained in the
application in the present case as a basis for compulsory jurisdiction
in these proceedings.
C. There are no probable, effective, and adequate remedies avail-
able to American nationals nnder Bulgarian law which must be
exhausted before the United States presses a diplomatic or legal
claim with respect to the aerial incident of July 27, 1955. OBSERVATIONS OF U.S.A. (II60) 309
I. No rule on exhaustion of local remedies by Amencan nationals
is applicable to the United States Government claim in the present
case. The United States instituted these proceedings in its own
right, and on the basis of undertakings made to this Government
by Bulgana.
2. No adequate localremedies are availablein any event. Contrary
to the assertions made in the fourth preliminary objection, Bulganan
law does not guarantee to aliens free and unrestncted access to the
courts. Furtherrnore, the Bulganan courts do not enjoy the inde-
pendence requisite for impartial discharge of judicial functions. The
rolc of the Communist Party in Bulgana, of the executive branch
of govemment, and of the government attorneyin judicial proceed-
ings, combine to make the courts a mere instrument of the political
wili of the Communist Party and the government executive. IV. ARGUMENT
A. THE BULGARIAN ACCEPTANCE OF COMPULSORY JURISDICTION
HAD NOT EXPlRED AND WAS STILL IN FORCE WHEN THE PRESENT
PROCEEDINGS WERE BEGUN, THUS GIVING THE INTERNATIONAL
COURT OF JUSTICE JURISDICTION IN THIS CASE BY VIRTUE OF
ARTICLE 36, PARAGRAPH 5,OF THE STATUTE OF THE COURT
I. TheJudgrnentof this Courton May 26,1959, in thecasebetween
Israel and Bulgaria does not concludethe Parties in thepresentcase.
The Bulgarian Government in its preliminary objections has
reliedon the Court's Judgment of May 26, 1959,in the case of Israel
against Bulgaria as being dispositive of the issue of jurisdiction in
the present case. The United States considers that the Court's
Judgment there does not govern the present proceedings.
a. This proposition is clearly set forth in Article 59 of the Statute
of the Court, which provides:
"The decision ofthe Court has no binding force except between
the parties and in respectf that particular case."
Thus, any decision in the Israel case would have no binding force
between the United States and Bulgaria in respect of separate
proceedings instituted by the United States Government.
b. No doctrine of stare decisis et noTtquieta movererequires that
the jurisdictional decision reached in the Israeli case should be
imposed on the Parties in the present proceedings. The Judgment
in the Israeli case is a recent one. The jurisdictional result amved
at there does not represent a precedent and mle of long standing
upon which governments have come to rely in their international
relations.
c. It may be recalled that, although in certain continental
countries the binding force of precedent is recognized to a limited
extent, courts in civil-law countries are ordinarily not bound by
their own decisions. Lipstein, TheDoctrineofprecedentin Continental
Law with Special Referenceto French and GermanLaw, 28 J. COMP.
LEC.& IST'L. L. (3rd ser.), Parts III and IV, 34, 38 (1946). The
judgments of courts in civil-law countries normally have no binding
force except with respect to the cases in which they are actually
rendered. This principle is enunciated in the codes of various civil-
law countries. E.g., Civil Code of Chile, 1855, Preliminary Title
Section I,Article ;Civil CodeofColombia(3rded. 1955).Preliminary
Title, Article17; Civil Code of Eczdador(1957 ed.), Preliminary
Title, Article 3; Civil Code of Uruguay, 1868, TitlI, Article12.
It is to be observed that even in jurisdictions where the doctrine
of stare decisis and reliance on precedent are more influential forces OBSERVATIONS OF U.S.A. (II 60)
311.
in the jurisprudence of courts, there is no principle or practice
standing in the way of overruling a judicial decision when it is
helieved to be erroneous. That this is tme in the case of the United
States Supreme Court has been demonstrated by a jurist of that
Court in recent years. Douglas, Stare Decisis, 49 COLUM L..REV.
735(1949). In the interval since the publication of that article, there
have been further and striking instances in the United States
Supreme Court of the overruling of decisions, particularly its earlier
decisions in the field of constitutional law. E.g., Brown v. Board of
Education of Topeka, 347 U.S. 483 (1954). In fact, the Supreme
Court has not infrequently reversed its decision in a rehearing of
the same case. E.g., Reid v. Covert, 354 U.S. I (1956).In Canada
a recent decision contains similar views about overruling previous
decisions. Rand J. in Reference re Farm Products Marketing Act,
7D.L.R. (zd)257(1957) ; see alsoJoanes, Stare decisisin theSu$reme
Court of Canada, 36 CAN.B. REV. NO. 2, 175 (1958).
d. In the present case, the provision in question which has been
the subject of earlier construction in the case of Israel against
Bulgaria is a provision in a constitutional text-Article 36, para-
graph j, of the Statute of the International Court of Justice. Unlike
legislativeenactments of national governments, such a constitu-
tional text is not subject to legislative revision for the purpose of
altering the effect of a judicial decision construing the text. Article
36,paragraph j being more analogous to a provision in a national
constitutional document than to a provision of national legislation,
it seems particularly appropriate for the Court to undertake the
reexamination of an interpretation of this provision when reexami-
nation is requested by a party in litigation.
The case is different from that where a court may conclude that
if change in the law is to be sought it ought to be sought from the
legislature. Legislative revision in this sense is not available with
respect to the Charter of the United Nations and the Statute of the
Court. These constitutional instruments can be amended only in
accordance with the provisions set forth in Chapter18 of the Charter.
The difficulty and relative unavailability of the amendment process,
for al1 practical purposes, is attested by the experience of the
United Nations.
e. In view of the considerations set forth above, the Government
of the United States appeals to the Court to consider de novo the
jurisdictional issue raised by the first Bulgarian preliminary ob-
jection in the present case.
2. The Bulgarian acceptance of compulsory jurisdiction had not
expired and was still in force when the present $roceedings were
institnted.
a. The argument of the United States to the effect that the
International Court of Justice has jurisdiction in this case rests
upon the consent of the Parties concemed, namely, the United312 OBSERVATIONS OF U.S.A. (II60)
States and Bulgaria. In the case of the United States, that consent
was given in the declaration by which the United States accepted
the compulsory jurisdiction of the Court on August 26. 1946. In
the case of Bulgaria. consent rests on Article 36, paragraph 5 of
the Statute of the Court, read in conjunction with the Bulgarian
declaration of Juiy 29, 1921.
The text of the Bulgarian declaration is as follows:
"On behalf of the Govemment of the Kingdom of Bulgaria, 1
recognizein relation to any other Memberor Statc whichacceptsthe
same obligation, the jurisdiction of the Court as compulsory, ipso
facto and without any special convention, unconditionaiiy."
6 L.N.T.S.413.
This declaration was made under the optional clause of the Statute
of the Permanent Court of International Justice. It was ratified
and came into force on August 12. 1921. Ibid. As appears from
the text of the Bulgarian declaration, Bulgaria's acceptance of
compulsory jurisdiction was without limit of time. It was to remain
in force indefinitely. No action has been taken by Bulgaria at any
time to withdraw or modify this declaration.
The Bulgarian declaration made in respect of the jurisdiction
of the Permanent Court of International Justice is relevant and
decisive indetennining the jurisdiction of the present International
Court of Justice hy reason of the provisions of Articl36, paragraph
5 of the Statutr of this Coiirt. That provision reads as follows:
"Declarations made under Article 36 of the Statute of the Per-
manent Court of Intemational Justice and which are still in force
shd be deemed, as between the parties to the present Statute, to
be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and
accordance with their terms."
The United States regards this provision as a treaty commitment
between the United States and Bulgaria, as Members of the United
Nations and parties to the Statnte of the International Court of
Justice. The United States was an original Member of the United
Nations, and thereby became a party to the Statute of the Court on
Octoher 24, 1945.Bulgaria became a Member of the United Nations,
and at the same time a partyto the Statute of the Court, on Decem-
ber 14, 1955.
The commitment of Article 36, paragraph 5 bccame binding as
between these two countries on the date of Bulgaria's admission
to the United Nations. At that time, both countries were parties
to the Statute, and as between them a declaration made under
Article 36 of the Statute of the Permanent Court of International
Justice for a penod not yet expired is to he deemed an acceptance
of the compulsory jurisdiction of the International Court of Justice
for the period which such declaration still has to mn and in ac-
cordance with its terms. As pointed out, the Bulgarian declaration OBSERVATIONS OF U.S.A. (II60) 313
of 1921has no terminal date. In the view of the United States, that
declaration was covered by Article 36, paragraph 5 of the Statute
of this Court, and, accordingly, furnishes a proper basis for com-
pulsory jurisdiction by this Court in the present case. Neither
before nor after Bulgaria became a Member of the United Nations
did the Government of Bulgaria act to withdraw or modify the
1921 declaration. Bulgaria has been free to do so at al1times since
the conclusion of the Treaty of Peace with Bulgaria following
World War II.
b. The argument has been made that Article 36, paragraph 5
applies only to declarations made by States which were signatories
of the United Nations Charter. Bulgaria, it has been reasoned, was
not represented at the San Francisco Conference in 1945 and was
not a signatory of the Charter, with the consequence that the
Bulgarian declaration of 1921 could not be covered by Article 36,
paragraph 5 of the Statute of the Court.
It is submitted that this conclusion is erroneous. Article 36,
paragraph 5 does not refer to signatory States. The provision refers
to "the parties to the present Statute". The same term is used in
Article 93 of the Charter. That Article provides:
"1. All Members of the United Nations are ipso factoparties to
the Statute of the International Court of Justice.
"2. A State which is not a Member of the United Nations may
becomea ~artv to the Statute of the International Court ot Tustice
~ii t:<,iiilitu;1~idcrrrriiiiilnicnch C~SIII!.theGCII Iil :\i;cmbly
iiponihi:rcconirii~~iiil;i~nf rhr Siciirity Coiiiiïil."
It is perfectly clear from this provision that the expression
"parties to the Statute" is not limited to signatory States, and
indeed is not even limited to Members of the United Nations.
Article 93, paragraph 2, lays down a procedure by which a State
that is not a United Nations Member may hecome a party to the
Statute of the Court.
Where the drafters of the Charter intended to refer to signatory
States, they used this very term. Examples are contained in para-
graphs 1, 2, 3, and 4 of Article 110. Where, as in Article 36, para-
graph 5 of the Statute of the Court, the drafters employed the
term "parties to the present Statute", theyshould not be held to
have intended the quite different meaning carried by the term
"signatory States".
For a further reason the expression appearing in Article 36,
paragraph 5 could not mean "signatory States" rather than
"parties to the present Statute". The signatory States were those
represented at the San Francisco conference which signed the
Charter. The Charter could have andhad no legal effect as between
its signatones. They could and did become bound by it only in
accordance with the provisions set forth in Article IIO concerning
ratification and entry into force.
22 OBSERVATIONS OF U.S.A. (II 60)
314
Nor does the expression "parties to the present Statute" appearing
in Article 36, paragraph 5 mean "original Members of the United
Nations". This is not what the provision says. When the drafters
of the Charter meant "original Members", they so stated, as in
Article 3. Article 3 of the Charter reads as follows:
"The originalNembers of the United Nations shall he the states
which, haaing participated in the United Xations Conference on
International Organization at San Francisco, or having previously
signed the Declaration by United Nations of January 1,1942, sign
the present Charter and ratify it in accordance with Article110."
It was anticipated when the Charter and the Statute of the
Court were drafted tliat there would be United Nations Members
other than original hIembers. This is made clear by the provisions
of Article 4,which states:
"1. Membershipin the United Nations is open to al1othcr peace-
loving states which accept the obligations contained in the present
Charter and, in the judgrnent of the Organization, are able and
ivillingto carry out these obligations.
"z. The admissionof any such state to mernbershipin the United
Nations will be effected by a decision of the General Assembly
upon the recornmendation of the Security Council."
From Article 93, paragraph I, it is clear that United Nations
Members other than the original Members are automatically par-
ties to the Statute of the International Court of Justice. The ex-
pression "parties to the present Statute" appearing in Article 36,
paragraph 5 of the Statute, cannot properly be held to be limited
to those parties which were original Members of the United Nations.
The point has been made that to construe Article 36, paragraph 5
as applying to States not represented at the San Francisco con-
ference would be to impose treaty obligations on such States
without their consent. The United States does not contend for any
such proposition, and does not consider that the construction of
Article 36, paragraph 5 which it espouses involves any such pro-
position. We do not contend that Article 36, paragraph 5 operated
to bind Bulgaria when the provision was written, when the Charter
was signed. or when the Charter came into force. We contend that
it operated to bind Bulgaria when Bulgaria upon its own application
became a Member of the United Nations and a party to the Statue
of the Court. It was the act of becoming a United Nations Member
and a party tothe Statute that imposed the obligation of Article 36,
paragraph 5, not anything done at San Francisco or aftenvard,
prior to Bnlgaria's admission to the United Nations.
Arguments based on the negotiating history of the United
Nations Charter have been made in support of the conclusion that
Article 36, paragraph 5 cannot cover the xgzr declaration of Bulga-
ria. For example, the Australian representative in Committee IV/I
at the San Francisco conference called attention "to the fact thatnot 40 but about 20 States would be automatically bound as a
result of the compromise" (contained in Article 36, paragraph 5).
13 U.N.C.I.O. DOC. S 250 (1945). This Australian statement,
correcting an earlier United Kingdom staternent in the Cornmittee,
should not be interpreted as indicating that only about zo States
would ever be bound hy Article 36, paragraph 5, but rather as
referring to the situation which would autoniatically exist upon the
coming into force of the Charter. The Australian statement pointed
out that certain States not represented at the Conference had made
dcclararions accepiiiigtlic(:oinl~ulsury]urisdictioii of tlic Perninniiit
C~~rt of Intcrrintioiinl lu~tic~..?'II<::\rritralinri reurt:st:rit.îcii~cclid
not Say thatthese tat tew ould rernain for al1 tiGe unaffected by
the provisions of Article 36, paragraph 5. He merely indicated that
they would not automatically become subject to the cornpulsory
jurisdiction of the neur Court upon the entry into force of the
Charter and Statute.
Another element in the legislative history of the Charter which
has been cited in support of a limited construction of Article 36,
paragraph 5, was a passage in the report of Committee IV/I,
approved June II, 1945. This passage read:
"(c) Acceptances of the jurisdiction of the old Court over dis-
putes arising between parties to the new Statute and other States,
or betaeen other States, should also hc covered in some way and
it seernsdesirable that negotiationshonld be initiated with a view
to agreement that such acceptances will apply to the jurisdiction
of the new Coiirt. Thisrnattcr cannot be dealt with in the Charter
or the Statiitc, biit it mayer be possiblefor the GeneralAssernbly
to facilitateiichnegotiations."13 U.N.C.I.O.Doc. S384-8j (1945).
The passage has been rend as implying that a country such as
Bulgaria coulcl not and would not be coverecl by the provisions of
Article 36, parngraph 5. Actually, the San Francisco Comniittee
was only speaking of the necessity of dealing outside the Charter
and the Statute with States other than parties to the new Statute.
The Committee's conclusion, therefore, woulcl apply to Bulgaria
so long as it was not a Memher of the United Nations or a party to
the Statute of the Court; it would not apply to the situation when
Bulgaria had become a party.
In considering the proper interpretation and application of
Article 36, paragraph 5 of the Statute, it may be helpful to consider
the situation of certain States other than Bulgaria whose accept-
ances of the compulsory jurisdiction of the Permanent Court of
International Justice were still in force at the time of the establish-
ment of the United Nations and which did not becorne Members of
the United Nations uiitil later, if at all. These countries include
Finland, Ireland, Portugal, Sweden, Switzerland, and Thailand. It
is of interest in this connection to note a statement made hy Pro-
fessor Manley O. Hudson in commenting during 1946 on the
operation of Article 36, paragraph 5. He said at that time: "On the other hand, declarations made hy the followingStates
under Article 3h,wliich werealso in forceon October 24, 1945,will
not be covered by the provision unless these States hecome parties
to the new Statute: Bulgaria, Finland, Ireland, Portugal, Siam,
Sweden, and Switzerland". Hudson, The Twenty-Fozcrth Year of
the IV-orldCourt, 40 A.J.I.L.1,34 (1946).
A declaration by Finland accepting the compulsory jurisdiction
of the Permanent Court of International Justice expired by its
terms April 7, 1947. Finland was not adrnitted to the United
Nations until more than eight years later. Hence Article 36, para-
graph 5 has no application in its case.
Ireland on July II, 1930 deposited a declaration accepting juris-
diction for a period of 20 years. The expiration date of this de-
claration was thns Jnly II, 1950. Ireland did not become a United
Nations Member until 1955. Hence Article 36, paragraph 5 has had
no application to Ireland.
Portugal deposited on October 8, 1921, a declaration accepting
the compulsory jurisdiction of the Permanent Court without limit
of time. When Portugal became a Member of the United Nations
in Decernber 1955, Article 36, paragraph 5 operated with respect
to the Portuguese declaration for a short period of tirne until that
declaration was replaced by a new one dated December 19, 1955.
A Swedish declaration accepting compulsory jurisdiction expired
by its terms August 19, 1946. Since Sweden had not by that time
become a Member of the United Nations, Article 36, paragraph 5
did not operate with respect to the Swedish declaration. After
becoming a United Nations Member ou November 19, 1946,
Sweden deposited a fresh declaration on April 5, 1947.
In the case of Switzerland a declaration accepting compulsory
junsdiction expired by its terms April17.1947. Switzerland became
a party to the Statute of the Court only on July 28, 1948. Accord-
ingly Article 36, paragraph 5 did not operate. After becorning a
party to the Statute, Switzerland deposited a fresh declaration.
Thailand originally deposited a declaration accepting the com-
pulsory jurisdiction of the Permanent Court of International
Justice on September 20, 1929. This declaration was renewed
May 3. 1940 for a period of ten years as from May 7, 1940. It was
renewed again on May zo, 1950 for a period of ten years as from
May 3, 1950. At least during the period between Thailand's ad-
mission to the United Nations (Decernher 16, 1946) and May 3,
1950, Article 36, paragraph 5 of the Statute of this Court operated
with res~ect to the Thai declaration.
111ciiiistruing Arriclc 36, p:rr;igrig,the provisions vf Article 37
of rhc Srntut~ of the Coiirr iiiay LILu.f ii~.iis~iincr.'l'hat hrticlu r~.;ids
as follows:
"Whenever a treaty or convention in force provides for reference
of amatter to a tribunal to have been instituted ùy the League of
Nations, or to the Permanent Court of International Justice, the OB~ERVATIONS OF U.S.A. (II 60) 317
matter shall, as between the parties to the present Statute, be
referredto the'Intematioria1 Court of Justice."
Itseems clear from the drafting history of this provision that the
intention of the San Francisco conference was to give the Article
a broad scope. The effect of Article 37 was not to be limited to
treatiesbetween parties tothe Statute-it was to cover any treaties
iiisufar as obligations under them between parties to the Statute
should be concemed. It wonld be anomalous indeed if Article 37
should be held to apply only as between parties to the present
Statute which were signatories of the Charter or original Members
of the United Nations. It has not been suggested that Article 37
has so narrow a coverage. Similarly, it would defeat, in part, the
purposes of the drafters to conclude that Article 36, paragraph 5,
does not operate with respect to the declarations of any and al1
parties to the present Statute. The Charter provides no warrant for
different classes of parties ta the Statute. They are al1 on an equal
footing, once they have become parties. It would be contrary to
the Charter to hold othenvise in the construction of Article 36,
paragraph j.
c. The first preliminary objection of the Government of Biilgaria
is based in part also upon the contention that the Bulgarian declar-
ation of 1921 expired with the liquidation of the Permanent Court
of International Justice on April 18, 1946. Hence, the argument
runs, when Bulgaria became a party to the Statute of the Court on
December 14, 1955, there was no longer a Bulgarian declaration in
force which could be subject to the operation of Article 36, para-
graph j of the Statute. This argument asserts that liquidation of the
Permanent Court had the effect of terminating the Bulgarian
declaration of 1921-although that declaration was unlimited in
time-unless Bulgaria had before April 18, 1946become a party to
the Statute of the IntemationalCourt of Justice. The United States
considers the above analysis unsound for several reasons.
The argument advanced by Bulgaria assigns a crucialimportance
to the date of the liquidation of the Permanent Court-April 18,
1946-and the Bulgarian preliminary objection speaks of declara-
tions accepting the compulsory jurisdiction of the Permanent Court
as being "transferred to the ne,w International Court of Justice".
The concept of "transfer", particularly in relation to the date of
April18, 1946, does not seem accurate. In the case of original Mem-
bers of the United Nations, their declarations with respect to the
Permanent Court did not hecome operativeupon the liquidation of
the Permanent Court, but rather npon the date when the United
Nations Member in question became a party to the Statute of the
new Court: either October 24,1945, or such subsequent date as the
State in question became a Member of the United Nations and
therefore a party to the Statute of the new Court. In the interim
between that time and April 18, 1946, the State's acceptance of the318 OBSERVATIONS OF U.S.A. (II 60)
jurisdiction of the Permanent Court had not been terminated.
Instead, the State had accepted a new and additional obligation
under Article 36, paragraph j of the new Statute in relation to other
parties to the Statute. The obligation was independent of the liqui-
dation of the League of Nations and the Permanent Court.
The dissolution of the Permanent Court was effective on April 18,
1946 as between those parties to its Statute who could and did
agree to its dissolution at thattime. Bulgaria was not among those
parties. On April 18, 1946, Bulgaria was a defeated enemy country
under military occupation. Its treaties of a political character were
in a state of suspension. Bulgaria was not in a position to act inter-
nationally except through the powers which occupied it. These
powers did not purport to agree on behalf of Bulgaria to liquidation
of the League of Nations and the Permanent Court in April 1946.
Bulgaria did not give itsassent to these actions, and did not become
bound hy them, until the entry into force of the Treaty of Peace
with Bulgaria on September 15, 1947. Article 7 of the Treaty of
Peace required Bulgaria to accept the arrangements already made
for the liouidation of the Permanent Court of International "Tustice.
41 u.N.~s. 21, 56.
Prior to September 15, 1947, the Council of Ministers of the
Buleurian Govemment had sent to the United Nations Secretarv-
General, on August j, 1947, a letter applying for Bulgarian memh&-
ship in the United Nations. That letter stated, in part:
"In the name of the Bulgarian Government and in conformity
with Article4 of the United Nations Charter, we have the honor to
submit the request of the People's Republic of Bulgaria for admis-
sion to Menihership in the United Nations.
contained in the United NationsCharteraswellas al1the obligations
which ,~villdevolve upon the People's Republic of Bulgaria by
reason of its admission to Membership in the United Nations."
U.N. DOC.No. SI467 (1947).
This application was filed in the light of a provision in the Peace
Treaty which had been signed and was soon to enter into force.
That provision, contained in the preamhle of the treaty, read as
follows:
"Whereas thc Allied and Associated Powers and Bu!garia are
desirous of concluding a treaty of peace, which, conforming to the
resnlt of the events hereinbefore recited and form the basis ofas a
friendly relations between them, thereby enabling the Allied and
Associated Powers to support Rulgaria's application to hecome a
Member of the United Nations and also to adhere to any Con-
vention concluded under the auspices of the United Nations."
41 U.N.T.S. 21, 50-52.
There was nothing in the peace treaty nor in the Bulgarian
application for memhership in the United Nations to suggest that OBSERVATIONS OF U.S.A. (II60) 319
Bulgaria was seeking to he relieved of any obligation of the United
Nations Charter or the Statute of the International Court of Justice
when Bulgaria should become a Member of the United Nations.
On the contrary, Bulgaria stressed in its application thatit accepted
"al1 the obligations which will devolve upon the People's Republic
of Bulgaria by reason of its admission to Membership in the United
Nations". One of those obligations was set forth in Article 36,
paragraph 5 of the Statute of the International Court of Justice.
The fact that Bulgaria became bound by the earlier liquidation
of the Permanent Court of International Justice when the Treaty
of Peace entered into force on Septemher 15; 1947, should not be
held to remove the Bulgarian declaration of 1921from the operation
of Article 36, paragraph 5 upon Bulgaria's admission to the United
Nations. The first prelirninary objection of the Bulgarian Govem-
ment acknowledges that the Bulgarian declaration was in force
"up to the dissolution of the old Court, thats, until18 Aprilrg46".
As shown above, the declaration was also in force until Septemher
15. 1947. In the view of the United States Govemment, the entry
into force of the Treaty of Peace with Bulgaria did not have the
effect of extinguishing the 1921 declaration.
The argument has been made that Article 36, paragraph 5 of
the Statute of the Court, in employing the words "still in force",
speaks as of the time when a particular declaring State becornes a
party to the Statute of the Court. It is then contended that under
Article 36, paragraph 5 the Bulgarian declaration of 1921 must have
been in force on December 14.1955-the date upon which Bulgaria
was admitted to Membership in the United Nations. The argument
continues that the declaration could not have been in force in
December 1955 because the Permanent Court of International
Justice, to which the declaration related, had been effectively
liquidated several years earlier.
The United States Government believes that this is not the proper
meaning to be accorded to thetext of Article 36, paragraph j. The
intended and effective meaning of the words "still in force" is to
be seen in the French text of the provision: "pour une durée qui
n'est pas encoreexpirée". The declarations referred to in Article 36,
paragraph 5 were those made for a duration not yet expired. As
applied to the Bulgarian declaration of 1921, the import of Article
36, paragraph j is clear: when Bulgaria became a party to the
Statute of the Court, no period had come to an end within which
the Bulgariaii declaration was limited; for, as we have seen, the
declaration of 1921 was without limit of time.
This construction is confirmed by the negotiating bistory at San
Francisco. The Rapporteur of Committee IV/I, who submitted his
report in English, had the following to Say concerning Article 36,
paragraph 5:
"A new paragraph 4 [nowparagraph 51was inserted to preserve
declarations made under Article 36 of the old Statute for periods applicable to the jurisdiction of the new Court."declarations
The words "still in force" and "pour une durbe qui n'est pas
encore expirée" were used in Article 36, paragraph j to distinguish
declarations made for periods of time not yet expired from declar-
ations which, according to their own terms, had come to an end.
By the time ofthe San Francisco couference some declarations were
known already to have expired: for exarnple those of China, Egypt,
Ethiopia, France, Greece, Peru, Turkey, and Yugoslavia. See Case
concerning the Aerial Incident of July 27th, 1955 (Israel v. Bul-
garia), I.C.J. Ke$ortsr959,127, atp. 161 (Joint Dissentig Opinion).
Reference has been made earlier to the situation of Thailand.
Although Thailand had not become a United Nations Member and
party to the Statute of the Court until a number of months after
April 18, 1946, Thailand considered that its declaration accepting
the jurisdiction of the Permanent Court was carried over to the new
Court upon Thailand's becorning a party to the present Statute.
3. ln constrfkingArticle 36, +arqra$h 5 of flteStntufe of the Col~rt
-whizh is the?tubof theissue raisedby thefirstBulgarian .preliminary
objection-attention should be kePt joctcssedon the fundamental ob-
jective and $ur$ose of the provision in question.
Article 36, paragraph j was included in the Statute of the Court
in order to prevent retrogression with respect to international
judicial jurisdictionsimply becanse a new International Court of
Justice was taking the place of the old Permanent Court. In draft-
ing the new Statute, it was decided not to include a provision con-
ferring automatic compulsory jurisdiction. In order not to lose the
effectiveness of declarations made under the optional clause of the
old Statute, Article 36, paragraph j wa inserted. To hold, in
construing this paragraph, that the Bulgarian declaration of 1921
is not covered, on technical and conceptual grounds, would be to
defeat the constructive purposes of the provision in the new Statute.
To deprive the provision of vigor it was intended to have would
not be the right choice in a decision interpreting and applying
Article 36, paragraph j.
This interpretation of the provision does not impose any undue
hurden on a State admitted to membership in the United Nations.
It is tobe noted that Bulgaria, both before and after its admission
to membership, was fully at liberty to modify or withdraw its
acceptance of compulsory jurisdiction. Bulgaria had merely to Say
the word, and its acceptance of jurisdiction would have been
terminated or limited. Bulgaria never took such a step. Instead,
Bulgaria reiterated its applications for Membership in the United
Nations, repeating its undertakings regarding the obligationsarising
from the United Nations Charter. For example, on September zz,
1948, the Foreign Minister of Bulgaria sent a telegram to the United
Nations Secretary-General in which he said: OBSER\'ATIOh'S OF U.S.A. (II60) 321
"1 hereby renew Bulgarian Governinent's request for admission
of the People's Repuhlic of Bulgaria to membership in United
Nations ...uring year which has passed since coming into force of
Peace Treaty, Bulgaria has concluded with several countries treaties
of friendship, collaboration andmutual assistance, which are based
on fundamental principles of United Nations and in virtue of which
Bulgaria bas undertaken to observe statutes of that Organization ..."
U.N. Doc. No. S/~orz (1948).
In October 1948 the Vice President of the Council of Ministers
and Minister of Foreign Affairs of Bulgariamade a statement during
the third session of the General Assembly in Paris which read:
"In the name of the People's Rcpublic of Bulgaria, 1,the under-
signed, Vassil Kolarov, Vice-President of the Council of Ministers
and Minister of Foreign Affairs. duly authorized under the full
powers given for the purpose by the Presidium of tlieGrandNational
Assembly, declare that the People's Republic of Bulgaria hereby
accepts without reserve the 'obligations arising from the United
Nations Charter and promises to observe them as inviolable from
the date of its accession to the United Nations." U.N. Doc. No.
S,korz/add. I (1948).
In a cablegram to the United Nations General Assembly dated
September 23, 1954, the following was stated :
"The Bulgarian Govemment, moved by the desire to make its
contribution to international cooperation and understanding.
reiterates its request for the admission of the People's Republic of
Bulgaria to membership in the United Nations ...The Govemment
of Bulganan Republic has frequently stated and now states again
that it unreservedly accepts the obligations arising from the United
Nations Charter and that it fulfils ail the conditions required by
Article 4 of the Charter.
During al1 this time, the Govemment of Bulgaria made no move
to change or terminate its declaration accepting compulsory juris-
diction of the Court. It wasagainst the background of these repeated
and unqualified representations that Bulgaria was elected to United
Nations membership.
4. The important and indeed the central consideration is that
Article 36, paragraph 5 applies as between parties to the Statzite
wheneverthey have thatrelationsltip one to another.
Bulgaria became a Member of the United Nations and a party
to the Statute of the Intemational Court of Justice within the
transitional period after World War II when the defeated enemy
states were again taking their place in the community of nations.
That transitional period, during which the membership of the United
Nations was increased, may have been longer than was anticipated
at the time of the founding of the United Nations: But the period
was not longer for Bulgaria than for other defeated enemy States.
When Bulgaria entered the United Nations and became a partyto3Zz OBSERVATIONS OF U.S.A.(II60)
the Statute of the Court, the duration for which the Bulgarian
declaration of1921 was made had still not expired. That declaration
was sweeping and unlimited as to duration. The normal and in-
tended consequence of Article 36, paragraph 5 was that the Bul-
garian declaration should from that time onward be treated jnst
asthe other iinexpired declarations,as between the parties to the
Statute.
B. THE GOVERNMEN OTF BULGARIA IS NOT ENTITLED TO DETER-
MINE THAT ITS DISPUTE WITH THE UNITEDSTATES CONCERNING
THE AERIALIXCIDEXT OF JULY 27, 1955,IS A MA~TER ESSEXTIALLY
\VITHIS THE DOMESTIC JURISDICTION OF THE PEOPLE'SREPUBLIC
OF BULGARIAAND, HESCE, SOT SUBJECT TO THE COAIPULSORY
JURISDICTION OF THE INTERNATIOSA CLOURT OF JUSTICE.
1.The third preliminary objectionneed not be considered.
The second and third preliminary objections advanced by the
Bulgarian Government relate to the United States submission to
the jurisdiction of the Court in relation to the present case. In the
third objection, the Bulgarian Government maintains that the
United States has not, by virtue of any statement contained in its
application inthis case, effectively accepted compulsoryrisdiction
under Article 36, paragraph 2of the Statute of the Court so as to
provide a basis for compulsorv iurisdiction bv the Court in the
In this connection, the third Bulgarian preliminary objection
refers to the following statement contained in the Application:
"The United States Govemrnent, in filing this application with
the Court, submits to the Court's jurisdiction for thepases of
thiscase."
The United States does not contend that this statement con-
stituted a declaration under Articl36, paragraph z of the Statute,
providing a basis for compulsory jurisdiction.For this reason it is
not necessary to consider further the third Bulgarian preliminary
objection.
2. The second$reliminuvy objectionis not well tuken.
The second preliminary objection of the Bulgarian Govemment
is based on a reservation containedin the United States declaration
acceptiug the compulsory jurisdiction of the International Court of
Justice. That reservation is contained in the declaration filed by
the United States on August 26, 1946.The reservation in question
is as follows:
"Providing,that this declaration shall not apply to
***
"(b)Disputes with regard to rnatters whichare essentially within
the domestic jurisdiction of the United States of America as deter-
mined by the United States of America;..." OBSERVATIONS OF U.S.A. (II 60) 323
The United States agrees that Bulgaria is entitled to avail itself
in the present case of this reservation on the basis of the principle
of reciprocity. It is now necessary to consider the scope of the
reservation in deciding whether Bulgaria can defeat the jurisdiction
of the Court in the present case by characterizing the matter in
dispute as "essentially within the domestic jurisdiction".
a. Bulgaria by its second preliminary objection asserts that it is
entitled to declare the subject matter of the present case to be
essentially within the domestic jurisdiction of Bulgaria. Bulgaria
contends that, once it has made this declaration, the Court is ousted
of jurisdictioii by virtue of Bulgaria's reciprocal invocation of the
United States reservation quoted above. Thiscontentionis apparent-
ly premised on the proposition that there are no limits upon
the right and ability of a Stateto determine, under the reservation
in question, that a matter lies essentially within domestic juris-
diction.
The United States Government, which was the author of the
reservation now sought to be invoked by Bulgaria, is unable to
agree with this view. The United States does not consider that re-
servation (b) authorizes or empowers this Government, or any
other governinent on a basis of reciprocity, to make an arbitrary
determinatioii that a particular matter is domestic, when it is
evidently one of international concern and has been so treated by
the parties.
When reservationfb) was being debated on the floor of the United
States Senate in August 1946, the author of the reservation here
considered made the following statement :
"Several Senators have argued that by this amendinent the
United States would put itself in the position of corruptly and
improperly claiming that a question is domestic in nature when it
is not, thereby taking advantage of an international dispute and
saying that since the question is domestic, we will not abide by
Governmentonthan that. 1 do not believe the United States would
adopt a subterfuge, a pretext, or a pretense inorder to block the
judgment of the Court on any such grounds." 92 CONGR . EC.10695
('946).
In fact, the United States has given a practical construction to
reservation (b) which is altogether consistent with the statement
just quoted. For example, in the Interhandel case, the United
States invoked reservation (b) with respect to the issue of title to
shares of stock in an American corporation, while agreeing that
the issue of its liability to compensate certainaliens for a taking of
these shares was not essentially a matter of domestic jurisdiction.
The United States considers that the practice followed by a State
with respect to its own reservation is entitled to great weight in
the construction of that reservation when it is invoked by another
State.324 OBSERVATIONS OF U.S.A.(II60)
b. It is the view of the United States that reservation (b) does
not confer a power to nullify the jurisdiction of this Court through
arbitrary determination that a particnlar subject matter of dispute
is essentially domestic. In the present case it is perfectly clear that
the subject matter of litigation is one of international concern and
is not essentially within the domestic jurisdiction of Bulgaria. A
civil aircraft of an Israeli Company strayed over Bulgarian territory
and lvas shot daim by the amed forces of Bulgaria, causing the
death of al1persons on board including nine United States nationals
survived by next of kin having American nationality. The question
of iiability for these deaths and the question of fixing compensation
to be paid to the next of kin are plainly matters of international
concern affecting both the United States and Bulgaria, as well as
other countries. Bulgaria is not entitled to declare these questions
to be essentially within its domestic jurisdiction.
Moreover, the Government of Bulgaria by its conduct and
statements has characterized the subject matter of the present
dispute as intemational. As indicated in the facts set forth earlier
in the present statement, the Government of Bulgaria engaged in
diplomatic correspondence with the United States Government con-
cerning the aerial incident of July 27, 1955, for a period of more
than two years. The contents of that correspondence have been
snmmarized in the statement of facts. For exarnple, in its note
dated August 4, 1955 he Bulgarian Foreign Ministry included the
following statements:
profoundregret for thisgreat disaster whichhas caiisedthe death of
completely innocent people. The Bulgarian Government ardently
desiresthat such incidents should never happen again. It willcause
to be identifiedandpunished those guilty of causingthe catastrophe
to the Israeli plane and will takel1the necessary steps to insure
that such catastrophes are not repeated on Bulganan temtory.
"The Bulgarian Government sympathizes deeply with the re-
latives of the victims and is prepared tossume responsibility for
compensation due to their families, as well as its share of compen-
sation for material damage incurred."
Thus, the Government of Bulgaria entered into diplomatic
correspondence with the United States Government concerning the
s,ubject matter of the present proceedings, and made international
undertakings to the United States. These undertakings were to (a)
"cause to be identified and punished those guilty of causing the
catastrophe to the Israeli plane"; (b) "take al1 the necessary steps
to insure that such catastrophes are not repeated on Bulgarian
territory"; and (c) "assume responsibility for compensation due to
..families, as well as its share of compensation for material damage
incurred."
After taking these steps and entering into the international
engagements referred to above, the Govemment of Bulgaria is notentitled now to determine that these matters are "essentially within
the domestic jurisdiction of the People's Republic of Bulgaria".
c. Nor can it be validly asserted that security considerations
alleged to be involved in this incident bring the matter within those
subject to the domestic jurisdiction of Bulgaria. Security consider-
ations would have to be based on facts establishing the proposition
that overflight of the unarmed Israeli civil aircraft in question
threatened Bulgarian security to the point that it was necessary
to shoot the aircraft down without wamin~. -o such facts have
been adduced.
Furthemore, even if it could be established that Bulgarian
securitv was involved. it does not automaticallv follow that this
would cause the matter to lie essentially within ihe domestic juris-
diction of Bulgaria. The question whether a particular matter is
or is not essentially within themestic jurisdiction of a State is a
relative question;it depends on the development of international
relations. Case of the Tunis-Morocco Nationality Decrees, P.C.I.J.,
ser. B, No. 4 (1923) T he United States considers that, in al1 the
circumstances of the 1955 incident, the present claim based upon it
could not properly be characterized as lying essentially within
Bulgaria's dornestic jurisdiction.
If the Court shouldonsider that this conclusion is less clear than
the United States believes, and that the point requires evidentiary
material and fuller argument to be presented, the United States
would wish to make an extended presentation in connection with
hearing of the case on the merits.
C. THERE HAVE BEEN NO PROBABLE E,FFECTIVE, AND ADEQUATE
REMEDIES AVAILABLE TO AMERICAN NATIONALS UNDER BULGARIAN
LAW WHICH MUST BE EXHAUSTED BEFORE THE UNITEDSTATES
PRESSES A DIPLOMATIC OR LEGAL CLAIM WITH RESPECT TO THE
AERIALINCIDENT OF JULV 27,1955.
I.No rule on exhaustionof local remedies by American nalionals
is applicableto the UnitedStates Governmentclaim in thepresent case.
In its fourth preliminary objection the Bulgarian Government
has quoted a rule formulated as follows by the Institute of Inter-
national Law in 1954:
"When a State allegesthat injury to the person or to the property
of one of its nationals has been caused in breach of international
law, any diplomaticor legalclaim which it may be entitled to put
fonvard on this ground is inadmissibleif, within the municipal
system of the State, then: exist remedies available to the injured
person which are probable, effective and adequate and so long as
normal resort to these remedies has not been exhausted."
The Bulgarian Govemment alleges that American next of kin of
the United States nationals killed on July, 1955have not pursued326 OBSERVATIONS OF U.S.A. (II 60)
remedies available to them under Bulgarian law. Accordingly, the
Bulgarian Govemment argues, "the Application in the present
case is inadmissible". The fourth preliminary objection then con-
tains the following statement:
"In reçorting, hy its Application, direetly to the International
Court, without the slightest attempt having been made by the
interested persons tohtain satisfaction from the Bulgarian Courts,
the Government of the United States has eompletely ignored the
existence of therule relating to the exhaustion of local remedies,
and the practice to which thatrule has given rise."
The United States Govemment is unable to concur in the argu-
mentation put forward in the fourth Bulgarian preliminary ob-
jection. If there were any local remedies available in Bulgaria to
the next of kin of Americans killed in the shooting down of the
El Al Airlines Constellation on July 27,1955, the Bulgarian Govern-
ment never adverted to them nor to the desirability or necessity
of their being exhausted when the United States presented its
diplomatic claim to the Government of Bulgaria in 1955 and 1957.
Instead, the Bulgarian Government entertained the diplomatic
claim and undertook to discharge it, as has been noted earlier in the
present statement. In view of these facts, Bulgaria is not entitled
now to raise, for the first time, the assertion of a requirement that
local remedies be exhausted.
The United States Govemment also wishes to point out that, in
the present case, the United States has instituted proceedings
against Bulgaria both on account of injuries to American nationals
and on the basis of undertakings made to the United States by the
Bulgarian Govemment in 1955. In these circumstances a defense
to the effect that private parties have failed to exliaust local reme-
dies is not properly interposed against the government instituting
the case.
2. No ailequatelocal remedies have been available in any event.
The United States Govemment does not ivish to leave the fourth
preliminary objection without commenting on the Bulgarian
Government's assertion that probable, effective, and adequate
remedies are available in Bulgaria. In the view of the United States,
any attempted recourse in Bulgaria against the Bulgarian State,
on account of the wrongful death of nine Americans killed on July
27, 1955. would have been entirely futile.
a. The action of the Bulgarian armed forces in shooting down the
El Al Constellation on which the nine Americans were passengers
was the deliberate action of govemmental authorities. This was
not a case of negligent conduct on the part of public officiais or
instrumentalities. No Bulgarian law authorizing legal actionsagainst
the State to recover damages for wrongs such as those involved in
the aerial incident of July 27, 1955, has heen cited in the Bulgarianfourth preliminary objection. The t\vo cases referred to in that
objection and in the annexes to that document filed by Bulgaria
are quite evidently two isolated cases of negligentconduct. They are
not in point with respect tothe facts underlying the present proceed-
ings.
b. Moreover. American nationals who are next of kin of the nine
Americans killecl have not been guaranteed free and unrestricted
access to Bulgarian courts, under the same conditions as would
obtain for Bulgarian citizens-contrary to the allegation made in
the Bulgarian fourth preliminary objection. That objection, and
annexes 3 and 4 of the objection, cited Section 4 of the La~von the
Organization of the Courts of November 7, 1952 for the propoition
that free and unrestricted access to the courts is open to "al1
persons". The objection and annexes ernploy the French term
"toutes les personnes". But when one consults the Bulgarian original
text of the law, one finds that the Bulgarian term given this trans-
lation in French is "grazhdani", meaning citizens It is further to
be noted that the Bulgarian Constitutional provision underlying
Section 4 of the Law on the Organization of the Courts proclaims
equality before the law for "al1 citizens of the People's Republic of
Bulgaria".a Neither the Constitution nor the Law speaks of equality
hefore the law for "al1 persons".
c. Failure of next of kin to bring suit in the Bulgarian courts
cannot bar a claim before an international trihunal when it is clear
that the judicial authorities of the People's liepublic of Bulgaria
are under the control of the very executive agencies whose acts led
to the claim now pressed hy the United States. In considering the
status of the courts in Bulgaria, the following factorsare relevant:
constitutional structure and organization of the State;the relation-
ship among agencies of the government ;the role of the government
attorney; the manner in which the jndiciary is administcred in
Bulgaria; and the tenure of judges.
It is evident from the laws, from officially sanctioned statements,
and from other comments that the courts in Bulgaria do not enjoy
judicial independence. ln the first place, the Bulgarian Commnnist
Party is the supreme directing force in the State. As \irasstated in
an article in the official Bulgarian legal periodical Socialist Law:
"The Bulgarian Communist Party is the 'directive force'in the
system of the people'sdemocratic state and it cannot be controlled
by the State, which is oneof the 'transmission belts'in the system
of dictatorship ofthc pr~letariat."~
Law on the Organizvtion of the Courts $ piirar,[!<)plIzvrstiina Prezi-
diurna naNaroùiiotoSiil>raniï [liereinaitenscll'SS] No.y2(People'sRepublic
of BCONSTITUTIO NF THE PEOPLE' SEPUBLIC OF RULGARIA, 5 71,para.I.(1947).
Durzhaven vcstnik,No. 284. Decernber 6, 1947.
Buzov, Za niakoiko poniafiuaNokaratelniin ankon (On Certain Nofions of the
Criminal Code).So~si~risric~~s~ PRAVO (Sacr~risrLAW) SO. 2.34, 39 (1953).328 OBSERVATIONS OF U.S.A. (II60)
In similar vein, the secretary general of the Communist Party in
Bulgaria stated in his report to the Party's Central Committee in
January 1950 :
"
...No institution, organization, or person in Ourcountry could
or should stand above the Central Committee, above its Politbureau.
No decision of importance to the country, no action affecting Our
country and the workers should be made without the Central Com-
mittee of the Rulgarian Communist Party, without its consent and
approval. This must hecome the iron law for all."'O
Another article in Socialist Law points out that the Communist
Party directs the adoption of al1 legislation in Bulgaria and can
change statutory law at will:
"...in the people's democratic state, the Communist Party is the
directive force of the entire economic, political, social and cultural
life. The decisions of its higher agencies must form the hasis of al1
legislation and al1activities of the agents of the state power.""
A 1951 work published in Bulgaria had the following to Say
concerning the status of judges:
"The independence of judges, however, must not he understood
as independence from the people's governmcnt. Our courts, as we
have already seen, are an agency of the government and cannot be
independent froni it or serve some other purpose except that of
people's democracy or some other policy except that of the Com-
munist Party and the Fatherland Front. The independence of the
court discussed here does not signify a position above the classes,
party and politics. True court impartiality ..s predicated on the
proletanan class character of the court and its conversion into an
agent of the proletarian dictatorship and instrument for imple-
mentation of the interests of the working masses."12
It is also to be observed that sections 46-48 of the Bulgarian Law
onthe Organization of the Courts of November 7, 1952, provide for
the recall of judges at any time if their attitude endangers the
authority of the administration of justice or the public interest, or
if they have "fascist or restorationist attitudes".
Another feature of the judicial systemin Bulgaria is the institution
of the "government attorney". Under section z(d) of the Law on
the Government Attorney's Office of November 7, 1g5z,I3 the
government attorney is entitled to participate in civil suits when
this is necessary to defend governments and public interests. Under
'OOtechestvenFront. Xo. 1678, February 5,1950, p.4, col.2.
No. IO.9.12v(1g5z). i Politika (Law and Polilics),Sorsi~~rsr~cx~s~o Pn~vo,
laPavlov Nakazatel+zo pravosudie na Narodnn Republika Rulgariia: klarova
sushtnost. zadachi, osnovni nachala(AdminidratO/Criminal Justice in thePeople's
Republic ofBulgaria; Class Nature, Purposes and Fundamental Principles). 67-68
('95').
laLaw on theGovernment Attorney's Offic of thePeople'sRepublic of Bulgaria
§ 2,para. (d)[IQ~Z]IPNS No.g? (People's Republic ofBulgaria). OBSERVATIOSS OF U.S.A. (II 60) 329
section 27 of the Code of Civil Procedure of February 8, 1952, the
government attorney may intervene in a civil suit on his own initi-
ative at any stage." He may also appeal even without having
participated in the trial.16 One authority has commented as follows
on the role of the government attorney:
"... this requires every government attorney of the People's Re-
public of 13ulgariato develop himself through his work to the high
level of a statesman of Leninist-Stalinist style ...trongly party
minded, irreconcilable as a Bolshevik, possessing higher Marxist-
Leninist culture ..."le
Another authority, in discussing the manner in which the speech
of the government attorney shoiild be prepared and pronounced in
the court room, has stated that:
".. , ,, . . . .? . ..
'"PEOPLE'S REPUBLIC OF BULGARIA CODE OF CIVILPROCEDURE 8 27.para. I
(1952). IPNS NO. 12.
'"ection 30 of the Code of Civil Procedure.
'6 Dionisiev, Obshtiiat nadaorna prohuraturala (General Supervision [exercised]
by the Gouernment Attorney's Office)SoTsrALlsTIcHEs KRAVO,No. 3. 29 (1953).
" Petrov, Rechta na prohurara vrudebno rasedanie (The speechof the government
attorney a! the trialSOTSInLISTiCHESKO PRAVO. NO. 1.56. 61 (1954).
'Wsvetkov, Prokuraturata v grarhdanskiin pvotrerr (Goventment Attovney'r
Officeinthe Cioil Suit)SOTSIALIÇTICHBSKO PRAVON , O.12. 34. 37 (1952).
'9 Ibid.
23 V. SUBMISSIONS
The Govemment of the United States of America makes the
follouing submissions, in view of the considerations which have been
advanced in the present written observations:
TO ADJUDGE AND DECLARE
I. That the Court has jurisdiction in the present case concerning
the Aerial Incident of July 27, 1955;
z. That the first, second, and fourth preliminary objections of
the Government of the People's Republic of Bnlgaria are overruled,
and that the third preliminary objection, stated as an alternative
to the second preliminary objection. need not he considered; or
3. That, as an alternative to the foregoing, the consideration of
such preliminary objections as are not now disposed of be joined to
the hearing of the present caçe upon the merits, in case the Court
considers there are issues with respect to jurisdiction which require
trial and hearing.
February 1960. Respectfuily submitted,
(Signed)Eric H. HAGER,
Agent of the United States of America.
Observations and Submissions of the Government of the United States of America on the Preliminary Objection of the Government of the People's Republic of Bulgaria