The foLLo-,ving information from the Registry of the International
Court of Justice is coi?municated ta the press :
The International Court of Justice today (2.4 July 196.4 dehvered
its Jud~ent on .the Preliminaq- Objections in-the case concerning
the BarcelonaTraction, Light ad Pourer Company, Uruted (Belgiurn x.
Spain).
Thess preceedings were instituted by-an Applicatian of 19 June 1962
in wbich the Belgian Goverment seeks reparation for dmage cluJlied to
have been caused to Bel@an nationds, shareholders in the Canadlm
Barcelom Traction Company, by the conduct of various orsas of the
Spanish State . The Sp&sh Governent raisedfour Preliminary
Objection s
The Court re jected the first Preliminary Objectionby 12 votes to
4, and the second by 10 votes to 6. It joined the third Objection to
the merits by 9 votes tc 7 md the fourth by fO votes to 6,
President Sir Percy Spender aid Judges Spirogoulos, Koretsky and
Jessup appendedDeclarations to the Judgnent .
Vice -President idellington Koo and Judges Tylaka and Bustainante y
Rivero appenàed Separate Opinions.
;Iudge ?,!orel alid Judge ad hoc mnd-Ugon appended Dissenting
Opinions,
First Pitliminaqy 0b.j~ction
In its Juàgment , the Court recalled that Eelgium had on 23 September
195e filed. with the Court an earlier Agplication ag~nst Spain in re-
spect of the sme facts, and Spain had then rcised three Prelhinary
Objections., On 23 Jlarch 1961 the Qplicant, avdling itself of the
rightconferred upon it by Article 69, paragraph 2, of the Rules of
Court, had inforned the Court that it was not going on with the pro-
ceedlngs 9 notlfic ation having been recsived f romthe Flespondont that
it had no objection, the Court had removed the case from its List .
(10 Asri1 1961). In its first Freliminary Objection, the Reçponden-t
contendeci thst this discoiltinuance precluded the lipplicant from. bringing
the present proçeedings end advauiced five argumentsin support of its
contention,
The Court accepted the first arament, to the effect that discon-
tinuanceis purely procedurd act the real significance of hich mus%
be sought in the attendant circurnstances ,
On the other hand, the Court was unable to accept the second argument,
nmely thata discontinuancre nust alvrvys be taken as sik*fiifying a re-
nunciation of 'anyfurther ri@ of action unLes3 the ri&t to sta& new
As the Applicant 1s notice of dis -
proceedings Is expressly rkserved .
çontinuhce contairied no motivation and ?$asvery clearly confined to
the proceedings instituted by the firstApplic&Lan, the Court considered
thak the onus of establishing thatthe discontinuancm eeant sorizethingmore
th= a decision to terminate those proceedingswas placed upon the
bspbnclent .
The ,.., C
-2-
The Respondent, as its thirdargument, asserted thet there had been
an understanding between the Parties; it secalled that the represen-
tatives of the private Belgiân interestû concerned had made an approach
witk a viewto opening negotiations and that the r~presentütiveo sf the
Spariish interests had laid down as a prior condition the final withdrawal
of the cldu. ~ccordring to the Respondenk what was meant by this vras .
that the discontinuance wauld put an end to any furtksr right of action,
but the Applicant denied th& anything more was intended than the ter-
mination of the then current proceeàings , The Court was unable to find
at the governmentzl kvel any evidence of any such understanding as was
alleged by the Respondent; it seemed that the problem had been deliberately
avoided lest the foundation of the interchanges be shattered. Nor had
the Respondent, on hrham lay the anus of making its position clear,
expressed any condition when it indicated that it did not object to the
discontinuanc e
The Respondent Government then advanced a foiirth argument, having
the ckaracter of a plea of estoppel, to the effect thzt, independectly of
the existence of any understanding, the Applicant had by its conduct
n-hsled the Respondent about the inport of the discontinuance, but for
which the I-iespondent woulcl not have agreed to it, and would not thereby
have sufferedpre judice , The Court did not consider that the alleged
roisleading Belgian mis repre sentations had been established and could not
see what the Respondent stood to lose bg agreeing to negotiate on the
basisof a. simple discont2nuance;if it had not agreed to the discan-
tinuance , the previous proceedings wodd çimpïy have continued, where as
negotiations offered a possibility of finally settling the dispute.
Moreover, If the negotizbions were not successful and the case started
again, it would still be possible once mre to put forward the previous
Prelimimry Objections. Certainly the AppUcant had framed its second
Application with a foreknowledge of the probable nature of the &spondent1 s
reply and taking it into accoirnt but, il:.the original proceedings had
continued, the IQplicant could liketise always have ~nodified its
auhissions ,
The final argument w~s of" a àiffsrent order; The Reçpondent alleged
that the present prnceedings were contrary to the spirit, of the Hlspmo-
Bel@ an Tre~ty of Conci iiation, Judi cial Settlernent and kinbitration of .
19 July1927 which, according to the kpplicant, conferred cornpetence on
the Court, She pre-nary stages provided for by the Treaiy having
alreaày been gone thmugh in connection hiith the origiral proceedings,
the Treâty could not be invoked a secand the to seise the Court of
the same cornplaints. The Gourt considered that the Treaty processes
could not be regarded as exhausted so long as the right to bmng new
proceedlngs atherrdse existed and until the case had been prosecuted to
judpnt ,
For these reasons, the Courtrejected the first Prelïmin+ry
Ob jection,
Second P~eliminary Ob,jaction
To fond the jbrisdiction of the Court the Qplicant reLed an the
combinedeffectof Article 17(4) af the 1927 Treatg between Belgiumand
Spain, according ta wMch if the other methodl; of settlemelzt provided
for in th2k Trreaty faled either party could bring any dispute of a
legal nature before the Pemanent Court of Intern2tional Justice, and
Article 37 of the Statute of the International Court of Justice, mich
resds as followa : -3 -
T1bhenever a trea.ty or convention in force provides for
ref erence of a riut ter .. .. to the Fermanent Court of International
Justice, the natter shall, as between the parties ta the preçent
Statutc, Ise referredta the International Court of Justi~e,~~
As the principe1 aspect of its 05jection, the Respandent naintained
that a.lthouph the 1927 Treaty rdght still be in force, ,irticle 17(4) had
lapsed in i,pril 1946 on the dissolution of the Permanent Court te which
that article referrsd. No substitution of the presentfor the former,
Court had been effected .in that article before the ~ssolution, Spain
. not being than a party to ihe Statute; in comequence, the 1927 Trea&y
had ceased to contain any valici jurisdiçtiod clause when Spain was
adrr~ltted ko the United Nations and becôme ipso' fseto-a-partt yo the
Statute (Uecember 1955 ). In other words, *irticle 37 applied ody
between States which had become parties to the Stetute previpus to the
dissolutian of the Permanent Court, and that dissolution had brought
about the extinction of jurisclictioml clausesproviding for recouse to
the Permnent Court urïiess they haci,previously been transformed by the
operation of Article 37 into clausespro-dding for recourse Lo the
present Court.
The Court found thzt this linc of reasoning had first been advanced
by the Responrjent after the decision givenby the Court on 25 May 1959
in the case concermlng the fierial Incident of 27 July 1955 (1srae1v.
Bulgaria) . But that case had been eoncerned unth a dlateral
dechration in acçeptanceof the compulsory jurisdiction of the , ,
Permanent Court and not r~Lth a treata-., It thus Iiad reference not to
Article 37 Sut to Article 36, para-graph 5, of the Statute. - - . k
As regards Article 37, the Court recalled thatin 1945 itz drafters
had intended to preserve as mny jurisdictiorel clauses as possible £rom
becoming inoperative by reason of the prospective dissolution of the
Permanent Court. It was thus djfficultto suppose that they would
vllllingly have contmplated thit th€ nulllf icati on of the jurisdi çtional
clauses Fahose continuation it was desired tu preserve rmuld be brought
about by the very event the effects of which Article 37 as intended to
parry
Wy three conditioils were actuzllg stated in Article37. They -
were that there should be a treaty in force; that it shouldcontain a
provision for the reference of a matter, to the Permincnt Court; and
thatthe dispute should be between States parties to the Stztute. Ln
the present case the conclusion r~ust be $ha% the 1927 Treaty being in
force and containing a provision for refcrence to the Permanent Court,
and the parties tb the clisputc being pgrties to the Statute, the matter
vrzs one to be ref erred to the International Court of Justice which was
the competent form.
9 waç objectecl that this vicw leù to a situztion in which the
jurisd~ctioml clause concernecl was inqperative and then after a gap of
gears becme operative egain, and it was asked whetherin those circ~il-
stances any trme consent Dould hm been given by the Bespondent to the
Court s jurisdîction, The Courtobservcd that the notion of right s
and oblikations that are in zbeyancebut noh exLinguished was cormon; .
States becoMing parties to the Statute after thç dissolution of the
Permanent Court must be taken to have knovm that une of the resultsof
their adr~cssion would, be the reactivatioq Sg reason of Article 37 of
cerhim? juriçdictional clauses, The conkrary "position dntained by
the Respondent would create cliscriminz.tion between Statesaccorciing as
to whether th~y becme pc?rties to the Statute be$ore or after the
dissolution of the Permafient Court,
,' As *... : 1
. , . .. . ... . .
. .uksi4regar '.sfirti~Ti1714) more partiçularly, the Courtconsidered
that. rit was an integral part of the 1927 Treaty. It wouldebe difficult
ta assert-'chat. the basic obligation to submit to compulsory adjudicakLon
provided for in the Treaty was exclusively dependent on the existence of
aparticular'forum. If it.happenedth?t the:foswn-mnt-out 8f existence,
the obligaii on %came inoperativé but remained substantively. in éxiste nce
and could be nendered operative oncemore if a new tribunal tvas supplled
by the automaticoperation of sonie other instrument'. Article 57 of the
Statute had preciselgr that ef fect , Aecordingly, l1Pnternational Court of
Jus.ti ce must no%'be read for "Permanent Court of ~nternationaJ lustice .
As a subsidiary pie-a,...the Respondent contendedthat if Article 37,of
the Statute operated to rkactivate 'Article l7(4) of the Treaty in December
1955; dat came into existence at that date was a new obligation between
the Parties; and that jwt as the original applied only to disputes
arising after the Treaty date, ço the new obligation could apply oriiy to
disputes. arisink ailter December ,19 55* The ,dispute .was accordingly .not
çoveredsince it had arisen previous to December 1955. In the opinion
of the Court, when the obligation to submit to compulsory adjudication
.ras revived as to its operation, it couldonlyfunction in accordance
with the Treatg providing for i-t and it continued to relate to any as- ,
putes .arising after'the Treaty date ,
. .. " = . .-
For these r&ans the CO-ut re jected the second Preliminary .. ,..
Ob jcctbn both in itsprincipalt and in its subsidiary aspects.
Third and Fourth' Prellminary Ob,jections
'.
The Respondentts third and fourthPrelhinar~r Objections involved
the of wh~ther the clab was admissible. The kpplicznt had
submitted alternative slsas tkat these 'objectionsu ,nlessre je'kted by
the Court7should 'De joined to .the mrits .
By its third Prelbinmy Objectionthe Respondent denïed the legal
capacity of the AppUcant to protect the Belgian interests on behalf .of
which it hed submitted its clah. The acts complained of had t&en
place net in relation to any Beldan natural or jusisticperson but in
relation to the ~a'rcelona Traction Company,a.juriçtic entity registered .
in Canada, the Belgian interests concerned being in the nature of share-
holding' interests in that Company, The .Respondentcontended thatinter-
national law does not re,cpgnize, in respect of injury caussd by a StaLe
to the+ foreign company,any diplornatic .protaction of shaseholders exer-
cised'by a Stste ether,than the national.St;ate of'the company. .The
~pplicht contekted tv;s view,
The Court found that the question of the .jus standi of a government
to protect the interestsof shareholders raisedan antecedent question
of what was the jurichcai situation in respect of shareholding interests,
as recognized by internationa l aw. The Applicôntthus necessarily
invoked righk,s which, so it contended, were conferred on it in respect
of its natiomls by the mlea of international law conûernlng the treat-
ment of foreigners, Elence a finclii~g.by.the Court that ii tad na jus
standi would be tant mount to a finding !.that thos e ri ghbs did not '.exis t
and that the daim tas not well-fauncled in substdnce. - 8
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I r The third Cbjeçtion had certain aspects which were of a preliriiinsry
chzracter, but involved a nwriber of clossly interwoven strandsof riiixed
l~w, fact and stztus to a degree such that the Court coulà not pronomce
upon it at the present stage in full confidence that It w2s in possession
of aU. the ~lements th& nmight have a bearing on its decisions, The
proceedings on the merits would thus place the Court in a better p~sition
to adjudicate Fnth a full knowledge of the facts.
The foregoing considerations applied a fortiori to the fourth Pre- -
l:'Lminary Objection, wh~rein the Respondent alleged f~lure to exhaust
local i-medies. This dlegationwas in factinextricablyinterwoven
with the Issues of denial of justice which constit~ted Ghe major part
of the mzrits af khe case.
Accordlngly, the Court joined. the third and fourth PrelimLnary
Objections ta the r~erits,
The Herne, 24 July 1964 ,
Barcelona Traction, Light and Power Company - Judgment (Preliminary Objections)