Interpretation of Peace Treaties with Bulgaria, Hungary and Romania - Statement by Mr. G. G. Fitzmaurice (U.K.) - Public hearing concluded

I~RMATIONAL COURT OF JUSTICE.

nniterpeétation of Peace Treatieswith Bulgaria,
Hungary and Romnia,

Statement by Mr. G.G. Fitzmauric (U.K.) - PublicHearing concluded.

The Hague, March 2nd,1950.

The Court in public sitting, which.oecupie tde whole day, heard
Mr.GOG. FITZMAURICE ,.M.G., deputy le@ addser of the ForeLgn Office,
gfving an oraistatement on behalf of the United Kingdom

The Courthas now eoncluded the public sitting durine which atatementa
were made by the representatives of the United States and the UnitedUngdom,
as well aa by the representatlve of the Secretary-Ctenaral of the United
Nations ,

a To-morraw, Friday, at 11 olclock, theCourtwlll deliver its decision
in theadvlsory case concernin ghe cornpetenceof the General Assembly for
Admission to United Mations membership.

In hdis statementto-day, MY, Fitzmauric put before the Court ,the
followinp geints:

(1) TheCourtis competent to give an advisory Opinion ç>nthe casa
before it and should do sa.

(2) There Is a manifest dfspute between the Goverment of the United
Kingdomand each of the three "ex-enemy Governmentsl1 concerned;
is discloseb dy the exchangea of diplornaticcorreapondence. $fis dispute

(3) The dispute relates principallt ya the question whether the
three'hmmwmts h3vc viahted the hmn rights pfm4sfong of the Peaoe
Troafieaj but ftalsorelates to a number of othermtters erlaing an the Treaties.
On al1 thesematters the United Kingdom and the three Governments concerned
have taken up totally opposedattitudes, There is therefore a dispute about
boththeinterpretation and the execution of the Trcaties.

(4) The disputeia not one for which the Peace Treaties provide any
other mode of settlement than that set out in the Peace Treaties articles
providinf gor the'settleme ntdisputes, IL therefore has to be settled
under these articles,

(51 Nelther the principle of domestic jwisdîction nor thatof natio~l
sovereignte yxclude the dispute from settlemenu tnder the Peace Treatfes,
since these principles camot be appued to treaty obligations unless the
treaty itself so provldes, The United Kingdom is aeserting its own rights
under the Peace Treaties and clairriing fulfilmenof the treaty articles for
her own interest, Thiscanot constitut en interference wlth the domestic
affairs or interna1 aopreignty of the "ex-enerqy countriesil,

(6) Since there exlsts a dispute and since this dispute is subject to
the provisionfs or settlemenc tontained in the Peace Treaties, and since
furthemore al1 the neeessary prelbinary steps have been taken, the three
Government concerned ara under a legal obligation to appoint their repre-
sentative o the conmissian envisaged in the Peace Treatles for the settle-
mant of disputes,
1
Pro cedure of Peace,Treaties.

Plr.Fitzmaurice sdd that in the pastthe United Kingdom and Unfted
States bvernments had nade ewry effort and hâd takenevery stepopen to them to set the Peace Treaty machlnery in motion. In hisopinion, these endeavourr,
had they been auccessful, wauld have resulted in a completesuspension or even
cessation of artyproceedings before the United Nattons. However, at every
turn the efforts of the twp Government had been frustrated by the three Govern-
ments concerned who, supported by the Soviet Union, categoricall efused to
carry out the proccdureprovided for in the Pcacc Treatias. Furthemore, thzy
persisted in dntaining that this machinery was not applicable and on theso
grounds they refuscd to nominate their codssioners on the arbitral comissions.

Wr.Fitzmauric eointed out that it was the General Assembly of the
United Nations which had asked the Court for an advisory opinion, ft would
therefore be mislcadin o pretend, as had becn done) that the United Kingdom
,
and the United States Gevernments had been the principal ins'cigators of the
matter. Ths proceedings before the Court, fi. Fitzmaurlc eaid, arose from
nothing else but thedesire of theAssembly to obtain an authoritative legal
opinion for its om requirement snd purposes, This couid not be considered by
any means as a litigation, and this argument couid not therefore be used
against the cornpetence of the Court.

Future of arbitration.

31 the opinion of the United Kingdom Goverment, the case before the
@ Courtraises issues of considorablo significanc for the future of international
law and of the legd relationb setween States. These issues would appear to
transcend in importanc ehe particulap roints relating to the application of
the Peace Troaties. Because of the ground on wt-iich the three Governnentc son-
cerned chose to base their objections, nothing less was at stake then the hole

future of arbitrationM ,r, Fitzmaurice said, It..was uviaus that if the
Government soncerned shnply say there Is nothing to arbitrate about, arbitral
clauses in treaties are useleas. Binding obligations could then be evaded at
arry the by a pczrtywhich even in the face of the plainest facts ms prepared
blendly to deny that any dispute existed. Hoksever,mess crbitral clauses were
intended to ensure coqufsory arbitration here was no object in includlng
such clauses at all,nor wouldit be to do so in future.

Doctrine of Domestic Jurisdiçtion,

To refuse 'toarbitrate becausethe mtter was sa$d to be one of domestic
jurisdiction was ko beg the question at issue, he continued. . Acceptanco of
the doctrine of domestic jurisdictioa nnd nztional sovereignty, in cases which
werc the sub jeot of some clause in a treaty or internationa agreement, would
* produce startling consequencei sn the noml treaty relations between States,

he said. It wodd be useloss, he continued, to insert henceforth in any
treaty a provision on snythlng which would otherwisebelong to the redm of
domestic jurisdiction or interna1 sovereignty, The assertion of treaty
rights wasnatonly juriùically inevitable, but itms a necessity of inter-
national lire, wiless t,reaties were to loseal1 ubligatory charactcr and
compulsive offect. Ifit was open to parties ta a treaty to claim that
sometkdng which was slaarly the subjeetof, and segulated by, a clause in the
treaty, neverthelesa lacked aw obligetory force, or was not internationally
justiciable, because it affected the national sovereignty or domestic or
interna1 jurisdictio of the Goverment concerned, the door would be flung Mde
open to evsry Und of plausible evaston of treatyobligations,

Such an argument woiild reduce the grest majority of bi-lataral treaties
to mre gentlemen s1agreements, hordïy even thnt : it wodd reducethem to
mere unilaterae lxpression sf intention which the parties would adhere to as
a mrking arrangement, so long as it suited them both to do so, but which

either couid depart £rom at any time without the other having any ri'ghtto
conplain, or any means of procuring a settlement of the matter on the inter-
national plane, e~stence of a dispute, theae Coi~emnte also have put f orward a legal
defence to the charges made against them. These, TrlrFitzmauric eaid,
they are perfectly entitled to do, but what in his opinTon they cannot do,
is both to put f orwardthese legaZ defences and sirmrltaneous toydenythat
there is a dispute; because if there is no dispute then there 5s nothing to
put f orward a defence about. By arguingthe substance of the charges. made
against themunder the Peace Treaties, the thrce Government save ad.rdtted
'the'eestence of a dispute and it is not now open to them to deny it. It is
difficult ,e continued to regard thls process othemdse than as an attenrpt
to givc a plausible appearanc eo what 5s really a wilful refusal to-carry
out a clear obligation.