3. STATEXIENT
OF THE OBSERVATIONS OF THE GOVERNXENT
OF THE PKINClP-4LITY OF LIECHTESSTEIX
CONTENTS
Page I'aragraphs
Introductory ............... 170 1-3
1. The nature of tlie commiinicntion of the9th Sep-
tember 1952. ............. 170 4-6
Il. The effect othe cxpiry of the declarations accepting
the comp~ilsoryji~risdictiofthe Coirrt . , . . 172 7-17
II 1.. The cornpetence of Court to detemine questions
affecting its juridiction ........ . 177 18-24
1V. The relevarlceof the muiiiciyallaw of Guateinala 180 zj-28
V. Conclusions of the Government of 1-iechtenstein . 181 29
I.In pursuance of the Order of the Court dated the z~st blarch
1953 ,he Governmeiit of Liechtenstein submit the follon-ingObser-
vations upon the communication dated the 9th Seytember 1952
adùressed by the Government of Guatemala ta the President of the
Court.
z. She communication of the Government of Guateniala apyears
to advance the following three contentions :(1) In the first place,
the Government of Guatemala assert that the Court fias no juris-
diction to considcr the present dispute between Liechteitçtein and
Giiatemala on the ground that the period laid down iil the Declara-
tion made by Guatemala under Article 36 (2)of the Statute of the
Court has expired. (2) Secondly, the Governmeiit of Guatemala
seem to contend that the Court is not cornpete~lt to decide upon
that objection to its jurisdiction for the allcgeclreason that the power,
conferred upon the Court in paragraph 6 of Article 36of the Statute,
to settle disputes as to its jurisdiction refers only to questions as
to whether any particular dispurc faits within orrc of the four
categories of disputes enumerated in paragraph 2 of Article 36.
(3) Finallp, tlie Government of Guatemala appear to put fonvard
the argument that the assumptioii of jurisdiction hy the Court
would be contrary to certainnotions arid provisions of the municipal
law of Guatemala. STATEhlENT OF LIECHTENSTEII: (IIV 53) I7I
,. Iliaccordance with the Order of the Court, the Government
of Liechtenstein now propose to make observations on these three
principal contentions of the Government of Guatemala. However,
before doing so, the Government of Liechtenstein deem it necessary
to cornnient oii the juridical character of the communication of the
Government of Guatemala of the 9th September 1952.
4. The Government of Liechtensteiri observe that the communi-
cation of the 9th September 1952 does not expressly and afirma-
tivdy indicatc in the accepted language of the Statute and of the
Rules of the Court what part that communication is intended to
play in the present proceedings. Sub-paragraph VI of paragraph 22
of the communication states (and thcreby purports to limit the'
effect of the communication) : "That in no case should ail or aily
par: of this note be considered as a reply, 3.ffirmative or negative,
or s default or voluntary absence, but as astatement of the reasons
for the irnyossibjlity of appearaIice bcfore this High Tribunal."
The corrimunication, hoivever, nowhere expressly states that it is
not to be considercd as a Preliminary Objection. It isclear that
the incliision or exclusion of any particular term, in the cornmuni-.
cation cannot afiect wha.t, upon proper interpretation, may be its
true naturc. The Government of Liechtenstein further observe
th:tt in its Order of the ~1st March 1953 the Court summarizes the
tenor of the communication in the foI1owing terms : "...by reason
of the expiry on January 261h, 1952, of the Dcclaration of accep-
taiice of the compulsory jurisdiction of the Court, liis Government
ïthe Government of Guatemala] conçidered that the Court had no
jurisdiction to deal tvith a case affecting Guatemala, and that
consequently the said Government \vas unable, for the moment,
to appear before the Court". Accordingly, while the Government
of Liechtenstein find thernselves in some doiibt as to the precise
nature of the conimunication of the 9th September 1952, they are
prepared,,in conformity with the language of the Ordcr of thc Court;
to treat that communication as constitutirlg s Preliminary Objec-
tion to the jurisdictiori of the Court.
j. In fact, it is dificult to see what other course is open to the
Government of Liechtenstein and, indeed, to the Court. The com-
munication of the Government of Guatemala is clearly not the
Counter-Mernorial which that Government, by Order of the Court
dased the 7th March 1952,wascalled upon to deliver by the
15th September 1952. The only other alternative which the Statute
and the Rules of Court contemplate in this coliiiection that the
document submitted to the Court constitutcs a Preliminary Objec-tion unless,incieed,itamounts to a default iri the sense of Artic53
of the Statute. Without yrejudice to any rights which thcy might
be abliged to daim undcr Article 53 of the Statute of the Court,
the Governmetit of Liechtenstein arcprcparcd totreatthe comrnani-
cation of the 9th September 1952 as a Preliminary Objection.
6. At the same tirne, evcn mhile treating the communication as
a Preliminary Objection, the Gol~ernrnen tof Liechtenstein desire,
should any other objections be raised tothe cxerciseof the jurisdic-
tion of the Court, to reserve their right to deal with them as and
when they ma' tic made.
THE EITFECT OF THE EXI'IRI' OF THE DECL.~RATIO XCCEI'TING THE
COMPULSOK JYRISDICTIQX 01; THE COURT
.7. The principal objection raised by the Government of Guate-
mala to the jurisdiction ofthe Court is exprcssed in sub-paragrapli
(a) of paragraph IT of the communicatio~~ofthe 9th Septemher
1952 inthe following terms : ".... the effect of its [the Government
of Guatemala] Dcclaration of Jariuary z7tIi, 1947, expircd with
the last hour of January 26th, 1952, and that from this moment
the International Court of Justice has no jurisdiction to treat.
elircidate or dccidc cases ~vhichmould affect Guatemala.. ..".This
objection raises clearly the issue whethcr the Court ha5 jurisdiction
to hear and decide the case upon its mcrits when the period of
acceptance of the jurisdiction of the Court by the defcndant State
expires subsequcnt to the date of the application instituting pro-
ceedings. III the submission of the' Gavernrneiit of Liechtenstein
it is clear, both on authority and in principle, that ifat the date
on which an application is filed there is in existence s valid Decla-
ration by the defendant Statc, made under Articlc 36 (2) of the
Statute, accepting the jurisdiction of the Court, the Court has
jurisdiction to hear and finallp determine the dispute irrespective
of the date ori which the Declaration may subse(luent1y expire.
S. So far as the Goï-ernment of LiecIiteiisteiii are asvare, the
only jiidicial authority bearing directly upon the point isa state-
merit made by Judge Hiidson in the coursc of 1% Dissenting
Opinion in thc case of the Electricity Company of So$u (P.C.I.J.,
Series AJB, No. 77, at p. 123). The issue before the Court \vas
whether it possessed jurisdiction over thedispute betwcen Belgiiim
and Bdgaria by virtue of the Declaration ofAcceytance made hy
both 13artiesunder Article 36 of the Statute of the Court or by vir-
tue of a Treaty of Conciliation, Arbitration and Judicial Settlernetit
concluded between the t~o countries on the 27th June 1931. The
Court held that it had jurisdiction by virtue of the Declaration made by the Parties under Article 36 of the Statute. Judge Hudson
(dissentirig) held that, if the Court had jurisdiction at all, it enjoyed
itby virtue of the Treaty of Conciliation. III the course of reaching
this conclusion the Judge said: "....the Court must say what
.law obtained between Bulgaria and Belgium on January 26th,
1938, the date of the filing of the Belgian Application. The fact
that the Treaty of 1931 ceased to be in force some nine days later
can have no bearing on the Court's jurisdiction with respect to
this case. If the jurisdiction existed on January 26th, 1938, it will
continue until the case is disposed of in due course ;this is expressly
recognized, indeed, in Article 37 (4) of the Treatyl." In the view
of the Government of Liechtenstein this passage remains unaffected
either by its context or by the reference in the last clause to the
express recognition of the continuance of the Court's jurisdiction
by Article 37 (4) of the Treaty. Judge Hudson was, in effect, çaying
that, provided the Treaty conferring jurisdiction upon the Court
was in force at the date of the application, the subsequent lapse
of the Treaty could make no difference. It appears that Judge
Hudson considered Article 37 (4) of the Treatyto be no more than
declaratory of the position which would have existed if no specific
provision of that nature had been made.
g. Moreover, in the two cases commenced before the Permanent
Court of International Justice under Article 36 (2) of the Statute
of the Court in which the period of the validity of the declaration
made by the defendant State expired after the date of the appli-
cation, neither the parties nor the Court raised any doubts as to
the jurisdiction of the Court. The two cases in question wer-ethe
Losinger case and the Phosfihates ia Morocco case.
IO, In the Losinger case (P.C.I.J., Series A/B, No. 67),proceed-
izigs were instituted hy Switzerland against Yugoslavia by an
Application filed on the ~3rd November 1935. The Declaration of
Yugoslavia accepting the jurisdiction of the Court under Article 36
(2)for a pcriod of five years became effective on the 24th Novernber
1930and expired, therefore, at midnight of the day on which Swit-
zerland filed its AppIication. The Preliminary Objection filed by
the Government of Yugoslavia, though raising various objections
to the jurisdiction of the Court, placed no reliance on the fact that
the period for which the jurisdiction of the Court had been accepted
by Yugoslavia expired after the institution of the proceedings before
the Court. The Parties to that case discontinued the proceedings
in Ilecernber 1936.
II. In the Phosphates ifzlMovoccocase (P.C.I.J., Series A/B,
No. 74, p. z3), the Italian Application instituting proceedings
l Article37 (4)provided: "Notwithstandingdenunciationby one ofthe High
ContractingParties,the proceedingspending at the expirationof the current
period othe Trcaty shalhc dulycoinplcted."against France \vas filed on the 30th lilarch1936. The 1~renchDcda-
ration accepting the compulsory jurisdiction of the Court for a
period of fivc yeas became effective on the 24th April 1931and
expired therefore at midnight on the 23rd April 1936. The Italian
Ucclaration made for a similar yeriod expired on the 6th Septembcia
1936. On thc 14th June 1938, the Court upheld the Preliminary
Objection of France, but no reliarice was placeci upoii rior \\*a riny
refercnce made either by the Court or the Parties to the point iiow
biscd hy the Government of Guatemala.
12. A similar situation arose before the ~iresciit Cotirtl On the
26th May 19j1, the Government of the United Kingdom instituted
proceedii-igs against the Government of Iran iri the Anglo-lrania~r
Oil Companycase.The United Kiiigdorn int70kedthe Iranian Declâ-
ration under Article 36 (2) of the Court as the basis for the Court's
jiirisdiction. On the 9th JidY Igjï. the Iranian Government,, in
accnrdance with the terms of its Declaraticin of Acceptance, with-
drcw its acceptailce of the compiilsorg jurisdiction of the Court.
l'et the proceedings continued and when, on the zznd JuIy ~952,
thc Court uyheld the Iranian Preliminary Objection to the juriç-
diction of the Court, it did so on other grounds and made no refer-
ence to the withdrawal of the Iranian Oeclara t1011.
13. The Governmeiit ofLiechteristein acknowlcdgc that in gencral
it is not permissihle to deny the existence of a rule of law simply
becaise iii cases where it inigkt propcrly have been apylied no
attcmpt \vas made to rely uyon it.At the same time, theqGovcri~
ment of Liechtenstein silbmit that there is at least onc catcgorÿ of
cases in which the fact that a particular rule is not applied or ci-en
referred to by the Court indicates that in the view of thc Court no
-cli rulc euists. Thc cüçes in question are those in which the juris-
diction of the Court is or inay be iriissue.In such cascs the principle
is IIO\Y1vel1establiçhed that the Court is bourid to satisfy itsclf that
it possesses jurisdiction. Thus President NcXair stated in his
Individual Opinion in the AqzgLo-lrn?ziunOil Conr#ariycase (Preli-
~itcary Objecliolz) (1.C.J. Reports 1952,p. 116) ;1sfollou~s:"An
international tribunal caniiot regard a question of jurisdictio~i
çolely aç a qiiestion inter pcirtes.That aspect does not eshaust the
matter. The Court itself, acting proprio ~notzt,must he satisfied thai:
an- State which is brought before it by virtue of such a declaration
has conscnted to the jurisdiction." The same principle \\rasespressed
ira similar manner by Judge Urrutia in thc case of the Electricily
Conzpany oj Sofia :.".... it is not oniy the right but the duty of
the Court ex ogicito o make sure of its jurisdiction, that iç of its
powcr to take cogiiizaiice of a case in sccordance \i,ith the tests
govcrniilg the said jurisdictiori". (Series AIR, No. 77, pp.102-103.)
See also Hudson, The Permanent Coztrt of infernnfiotinE Jzistice
(reviçed editioii, 1943)~page 418. STATEàIENT OF LIECHTESSTEIS (II 1-53) In
14. In the submission of the Government of Liechtenstein these
statcments of principle-that it is the duty of the Court to satisfy
itself in each case that it has jurisdiction-refer as much to the pasr
practice of the Court as they do to the futuretreatment bp the Court
of questions of jiirisdiction. It is, therefore,a clear implication of
the principle that if, in the past experience of thc Court, such a
case as the present Iiaclarisen, and if the contention of thc Goverri-
melit of Guatemala that in such cases the Court has iio jurisdiction
were valid, the Court tvould have declined jurisdictioii proprio
mo,ftc.Yet iti the threc cases rcferred to above, tvhich are the oiily
relevant cases, the Court did not declinc jurisdiction nor evcn advert
to the point which the Government of Guatemala iio\v raisc.
13. In thc oyi~iion of the Government of Liechtenstein, the
above interpretation of the practice of the Court is çupyortcd by
compelling considerations of principle. It is weli known that
governments appearing as defendants beforc the Court have
little hesitatioil in invoking grounds, even if offering remote chances
of success, inilitatiiigagainst the jurisdiction of the Court. Yet
although, as has bec11shown, in a. number of cases a situation arose
identical with that non. before the Court, no defendant governmcnt
has ever invoked :Lplea such as that now preseiitcd to the Court
by the Government of Guatemala. Iti is not surprising, having
regard to the consequerices, bordering on absurdity, foilowiiig
from the principle now contended for by the Governrneiit of
Guatemala, that goveriiments shoiild have refrained froin relyiiig
on an argument of that nature. If the principie undcrlying the
argument advanced hy the Government of Guatemala were vaIid,
then the Coiirt inight find itself deprived of jurisdiction by the
expiry of the Dcclaratioii at some moment between the tt-rittcn
proceedings and the oral proceedings, or between the hearingç and
the delivery of judgment, or between giving judgnzent and (if
it were so called upon) intcrpreting that judgmcnt, or betwecn
judgment and the subsequerit asscssment of compensation. Again,
iii these few cases in which 3 Statc has reserved to itseIf the right
unilatcrally to terminate at.any mo~zient its acceptance of the
jurisdiction of the Court, it is possible to visualize sitiiations i~i
which, after having appreciated the full strength of its opponent's
case at the hearings, it might promptly determine its Declaratioii
and therebjr deprjvc the Court of jurisdiction to continue with the
case. The legal principle governing the matter is obvious and
inescapable. That principle is that the institution of yrocecdings
crystallizes the rights of the parties in relation to the jurisdiction
of the Court l.
rightsofithe parties in relation to the nieriprinciple whicli is rcflccted in
the emphasis placed by thc tScrmanentCourt ofInternationalJustice. in the
Sotrfh-Easler?~ Gree?icase,on tlie notion that a pato a dispiiIicforc the STATEhlENT OF LIECHTENSTEIN (II V 53)
17~
16, It rnay he observed that the same principle underlies the
rule generally accepted in private international law to the effect
that milnicipal courts have jurisdiction over (iltter dia) such
persons as at the time of the institution of the proceedings were
within the territory comprised in the Court's junsdiction. The fact
that the defendant may before the date of trial leave that territory
does not affect the jurisdiction of the Court.
17. lxeference may be made at this point to another argument
which the Govemment of Guatemala summon to their aid. The
Government of Guatemala in paragraph 13 of the communication
of the 9th September 1952 say : "As to the reference to the definite
penod for which the Guatemalan Declaration of Jaiiuary 27th,
1947 \vas in force, it should be noted that this limitation is usual in
international tribunals and that it is also stipulated even in such
cases as are submitted far decision by means of a special protocol
precisely with the object of avoiding a prolnnged de1ay in the deci-
sion of contentious cases." The Goven-iment of Liechtenstein have
the following observation to offer on this passage : If the "çpecial
protocols" .to uthich the Government of Guatemala so vaguely
refer are examined, it will be foiind that what they do is tu yrovide
expressly that the trihanal shall wind up its proceedings by a
specific date. For euample, Article 1 of the Convention supplemen-
tary to that establishing the American-Panamanian Claims Commis-
sion 'provided, inter alin, as follows :"The Con-i~nissionshall be
honnd to herrr, ~,rcimine~rnddecide, before July rst, 1933, al1 the
claims filed on or before October ~st, 1932. 'h'cre are other treaties
in which limits arc expressly fiscd to the period in \\-hich the
arbitral tribunal shall render its award or conclude the proceedings.
(Some of these treaties \vil1 be found in Manning, Arbitration
Treaties alnongthe Anzericn?zNatioizs (1924). See also Witenherg,
L'Organisntiortjttdicinire, In I'rocédure etIciSer~lence inter~tationnles
(1936), pp. 284-286 ; Feller, The Men-ica~t Clniwis Commissions.
(1935),.pp. 33-35.) The object of such clauses is to prevent undue
delay in adjudication by sj~ecially coiistituted tribunals. The>-
have nothing to do \\rith the c~uestion of the jurisdiction of the
tribunal. Thus it is çlear that, by reason of the specific provisions
of the Convention referred tu above, the American-Pansmanian
Claims Commission would have had no juriscliction to render an
award after the 1st July 1933, even in a case comnienced before
the 1st October 1932. However, as stated, provisions of that nature
have no connection whatçoe\7cr with tlie qiiestion of jurisdiction.
Court cannot bsnefifrom unilateraactswhich take place aftcr the institofion
proceedingsThe Court said "The dispute respecting the lstatus ofthe South-
Eastern territorof Greenlantl lias becn specifically sutothe Court by the
applicatioof July 18th1932,so tliat no act on tlie part ofthe said Governments
in the territorin questioncan have any cffect whateveras regards the lcgal
situation which the Couris callupon to define." (SeriA/B, No. 48,p. 287.)If it kad been the intention of the Government of Crilatemala that
ul'c~nthc lapse of their Declaration the Court should ceasc to have
juridiction even in cases already begun, the Governme~lt of Ciuate-
inala could easily have given precise effect to tliat intetition by the
insertion of the appropriate words. But the Government of Guate-
maln did not do so. In fact there seems to be no treaty in esistence
in which a provision of that nature has been adopted. On the coii-
trary, therc is a long succession of treaties, impressive in their
uiiiformity, n~hicfiinclude express provisions to the contrnry. Lt is
sufficient to refer generally iiithis connection to some zoo treaties
for the pacific settlement of disputes in \\.hich in varying terms
specific provision is made that proccectings pending at the expiration
of the treatyd shall be continued until thcy are complcted. The
provisioils and details of these treaties may be fouriclat pages 304-
308 of thc Sysfematic Szirvey oj Y'reaties ]or the Yacific Settle-
Lent of I~tterlzationalDisfilrtes19.28-r948 (1948), prcprired by the
Secretariat ofthe United Nations.
'I'HECOMYETEXCE OF THE ~OGKI. TO DI3TER31ISE QUI*:STIOKS
AFFECTlXC ITS JURISDICTIOX
18. The seco~id lirincipal argumeiit relied upon 11ythe Govcrn-
melit of GiiritcrnaIa is advanced in paragraphs 16-21 of their
communication of the 9th Septemher 1952. The Govcr~iment of
Guatemala apliear, in effect, to be contending that in the present
case the Court does not possess the right under Article 36 (6)of
the Statute to determine whcther it has jurisdictioii. The Gover~i-
ment of Guatemala aIlege in paragraphs 18and 19 thst the power
of the Court under Article 36 (6)is restricted to the determination
of whcther the issue between the Parties falls withiii any of the
four classes of disputes enurneratcd in Article 36 (2)and, by impli-
cation, thcy deny that the prescnt case raises n cluestion of that
nature. At the same time, they do not expressly indicate what
other paragraph of Article 36 governs the dispute which now
undeniably exists as to thc jurisdiction of the Court. The Govern-
melit of Liechtenstein submit that any attempt to limit the juris-
diction of the Court undcr Article 36 16)to the determination of
the qucstion whether a dispute falls into any of thc four categories
enurneratcd as (a); (b), (c) and (d) in Article 36 (2)has no foun-
dation iii law. Quite apart from the fact that there is iiothing in
the gencral terms of Article 36 (6) to limit its applicationin this
maoiier, the Government of Liechtenstein aTe of the opinioii that
110th the practice of the Court and considerations of yri~iciple
rcquirc the rejection of the contention of the Government of
Guatemala. 19. The Govcrnment of Liechtenstein submit that the proper
i~~terpretationof Article 36 (6) is that it givcs the Court the power
to determiiie whether any proceeding instituted hy a party to the
Statute falls ri th inthe jurisdiction of the Court as determined byr
Article 36 as n wholc. '[O suggest, as do the Government of Guate-
mala, that Article 36 (6) relates only to disputes arising in con-
nectiori witli the four categories of disputes enumerated in Arti-
cle 36 (2)is to overlook the fact that disputes as to jurisdiction may
arise, and have ariçen, not only under the portion of Article 36 (2)
~vhichprccedes the enurneration of the four classes of disputes, but
also under Article 36 (1) and under Article 36 (3). If the contention
of the Goverrimeiit of Guatemala werc adopted, the Court ~vould
not ha~rethe power iinder Article 36 (6)to determine an bbjection
raised to its jurisdiction under, for example, ArtiJc 36 (2)on the
ground that the mattcr in dispute fell ivithiii the scope of some
reservatioii, or Article 36 (3) on the ground of the non-fulfilment
of a condition or the absence of reciprocity, or Article 36(1) on the
ground that thc matter was not syecially provided for. in the
Charter of the United Nations or that the disptitc did not fa11
mithin the tcrins of a treaty or conventiori iri force.
20. An imprcssivc body of preceder~t in the practice of the
International Court of Justice and of its prcdeccssor ernphatically
contradicts any such assertion. Thus, in the PI~ospltatesilz Morocco
case, the Court interpreted a clause of the Italian Declaration of
acceptance referring to "any disputes which ma- arise after the
ratification of the preçerit Declaration with regard to situations or
facts subsequent to such ratification" (P.C.I.J., Series A/B, No. 74).
The Court did the same in the case of the ElectricityCompany of
Sofia aitrlBzrlgaria (P.C.IJ., Series A/B, No. 77).Similarly, in the
judgment of the Court upon the prelirninary objection raised by
Iran in the Anglo-Iraitian OiEConzpauycase (1. C.j. Reports 1952,
p. 93). the principal dispute as to jurisdictioii, as decided by the
Court, rclated to the iiiterpretation of thc Iranian Ueclaration
generally and not to any question of tlie rclevünce of the four
categories enurncrated in Article 36 (2). The Court has also had
occasion to determine the question of its cornpetence when its
jurisdiction has been invoked under ArticIe 36 (1) of the Statiile.
In the Corfîc Chn>znel case (Preliminary Objection)(1.C.J. Reports
1948, p. 15) he United Kingdom relied (inter alin) upon a recom-
mendation of the Sccurity Council as endowing the Court with
jurisdiction under Article 36 (1) of the Statute. In al1 these cases
it was ne\-er suggested that the Court had no jurisdiction to deter-
mine its own cornpetence. Neither was any such allegation made in
any of the numerous cases in which the Court was callcd upo~i to
pass upon its jurisdiction on the basis of instruments other thaii
declaration of acceptance under Article 36 (2)of its Statutc. SThTEillENT OF LIECHTENSTEIN (II V 53) I79
Zr. The Govemment of Liechtenstein refer in this connection
to the view expreçsed by Professor Manley O. Hudsori in his work
on The Permanent Court of Inte~natianal Justice (rcvised edition,
rg43). In discussing Article 36 (4) of the Statute of the Permanent
Court of International Justice, which was identical with Article 36
(6)of the present Statiite, he says (at p. 416) :"The provision is
not limited to disputes arising with reference to the Court's juris-
diction under paragrayh 2 of Article 36, though the history of its
drafting indicates that such a lirnit was originally intended ;the
Court is competent to decide a question as to its jurisdiction under
(1) a special agreement (compromis), (2).a treaty or convention
in force, or (3) a declaration made under paragraph z of Art-
icle 36...The principal officeto be served by paragraph 4 [nowpara-
graph 61 of Article 36 may be to foreclose any possible contention
that the Court is incompetent to go on with a proceeding because
one party contests its jurisdiction ; it is in itself a provision for
obligatory jurisdiction, Iimited to disputes as to jurisdiction."
22. In an- event,it is the further submission of the Governinent
of Liechtenstein that, even if Article 36 (6)had been omitted from
the Statute of the Court, the Court would nevertheless have
possessed under customary international law and under general
principles of law the power which the Government of Guatemala
now seek to deny it. It is an elementary and firmly established
rule of international arbitral jurisprudence that an international
tribunal haç the power to determine in the light of the comfiromis
or of the constituent instrument of the tribunal what matters are
included within its jurisdiction.
23. This principle has received expression not only in the juris-
prudence of the Permanent Court of Inte~nationd Justice but also
in that of other international tribunals and in the writings of
yublicists. The Permanent Court of International Justice in its
Advisory Opinion relative to the Interfiretaiion of the Greco-
Turkish Agreement O/ 1926 said : "It is clear-having regard,
among other things, to the principle that, as a generd rule, any
body possessing jurisdictional powers has the right in the first
place itself to determine the extent of its junsdiction-that
questions affecting ....the jurisdiction of the mixed commissiori
must be settled by the commission itself...." (Series B, No. 16,
p. 20). The recognition of that pruiciple goes back to the origiiis
of modern international arbitration. Thuç Mr. Gore, one of the
American commissioners sitting in the Mixed Commission under
Article 7of the Jay Treaty in the case of the Betsey,said: "A power
to decide whether a elaim preferred to this board is within its
jurisdiction appears to me inherent in its very constitution, and
indispensably necessary to the discharge of any of its duties ...."
(quoted in Ralston, Law and Procedzlreof I~ttevnutio~rnT l ribunuls
13 rSo ST..ITENENT OF LIECHTESSTEIN (II v j3)
(revised edition, 1926), p. 43). Likewise, the Brazilian-Bolivian
Arbitral Tribunal stated that :"A tribunal which does not in fact
have the capacity to consider, to affirm and to determine its own
jurisdictioii is a juridical countersense" (quoted in Kalston,
op. cit., p. 48). Again, the principle is stated in Oppenheirn, Inter-
nationaE Law, Vol. II (7th edition), at page 28, in these words :
"The other principle is that in case of doubt thc arbitrstor is
entitled to interpret a compromisor thc treaty and thus to deter-
mine the scope of its jurisdiction." Profcssor Lauterpacht, in
Private Law Sources and A?zrilogies O/ I~zde~~at.iu~tLalaw (1927).
states at page20s that :"It would be an idle task to cnquire whether
it is due to a conscious application of a private law rule or to the
intrinsic merits of the matter, that there is now a unanimous
consensus of opinion and of practice in giving aii affirmative answer
to this question [Le.of whether the cornpetence of an intarnntianal
tribunal to determine its own jurisdiction has become a recog-
nized principle]." See also Carlston, The Progress O/ InternntionaE
ilrbitrntion (1g46), pages 74-81 and the authorities therein cited.
zq. In the view of the Governmeiit of Liechtenstein, therc is
nothing in the Declaration of the Government of Guatemala to
exclude the nonnal operütion of Article 36 (6) of the Statute. Nor
is thcre anything-assuming (which is not admittcd) that Art-
icle36 (6) ofthe Statute is inapplicable-to exclude the operation of
the rule of customary international law that every arbitral tribunal
has (in the absence of an express provision to the contrary) the
power to determine its own jurisdiction.
25. In their communication of the 9th September 1g52, the
Government of Guatemala refcr on three occasions to an alleged
limitation imposed by the lalv of Guatemala upon thejr right to
appear before the Court. In paragraph Ij of the communication,
the hlinister of Foreign Affairs slates that "in the mattcr of jurisdic-
tion, my Government must respect the intemal lawç of the country
in al1 that rcfers to its definition and limits", The BIinistcr tken
refers tothc definition of "jurisdiction" in Article 130of the Consti-
tutional Law of the Judicial Organism as "the yower to administer
justice". The power of the Court to administer justice expired, in
respect of Guatemala, the Minister continues, on the 26th January
1952 The C;overnment of Guatemala rcvert to a similar argument
in paragraph 21 tvhere, after referring to Article 24 of the Constitu-
tion of Guatemala, the Minister of Foreign Affairs again asserts
that : "Xo law authorizes any government to submit questions to
an international tribunal if this has not jurisdiction expressly STATEMENT OF LIECHTENSTEIN (II v 53) 181
conferred by a laiv of the Republic or a sovereign act approved by
Congress." Finally, in sub-paragraph V of paragraph 22,the Govern-
ment of Guatemala summarize their position in this respect by
alleging that their attitude is based "on cornpliance ivith the domeç-
ticlaws in force in our country".
26. In invoking these legal definitions and provisions of their
lam, the Government of Guatemala assume as a fact that the Court
has no jurisdiction in the present case and, therefore, that, having
rega.rd to the law of Guatemala, the Government of Guatemala are
not eiititled to appear before the Court. As, in the view of the Govern-
ment of Liechtenstein, the Court undoubtedly possesses jurisdiction
in this case, the above definitions, and provisions of the law of
Guatemala are irrelevsnt. However, out of respect for the Court,
the Govcrnment of Liechtenstein deern it desirable to add the
following brief observations upon the relationship of the municipal
law of a State to its obligations under international laiv. In doing
so, the Govcrnment of Liechtenstein must not be taken as admitting
the accuracy in Guatemalan law of the arguments advanced bythe
Government of Guatemala in paragraphs 15, 21 and 22 of their
communication.
27. The principle, which is so clear as to require the minimum
citation of authority, is that no State may rely upon the provisions
of its own law as a suficient excuse for failure to comply with its
obligations under international law. In referring to the authorities
which follow, the Government of Liechtenstein assume the follow-
ing propositions to be valid : (a) that if the Court has the compe-
tence to determine its oivn jurisdiction, the Government of Guate-
mala are under an international obligation to submit to the juris-
diction in this respect ; and (b) that if the Court determines that
it has jurisdiction to hear the merits of the case, the Government of
Guatemala will be under an international obligation to appear
before the Court and contest the case or alternatively to accept a ,
judgment given in default of aypearance.
28. The Government of Liechtenstein refer to the following
pronouncements of the Permanent Court of International Justice
in support of the principle set out in the preceding paragraph :
(a) in the ~dvisor~ Opinion concerning the Treatment of Polish
Nntio>i'alsin Danzig (Series 'A/I3, No. 44, p.24), the Permanent
Court of International Justice indicated that "a State cannot
adduce as against another State its own Constitution ivith a view
to evading obligations incumbent upon it under international law
or treaties in force".
(b) In the case of the Free Zones of Upper Savoy and the District
O/ Gex (Series A/B, No. 46, p. 167)~the Court said :"....it is certain
that France cannot rely on her own legislation to limit the scope
of her international obligation....".182 STATEMENT OF LIECHTENSTEIN (IIv 53)
(6) In the case of the I~rterfiretatiof fheConverztionbetween
Greece n~d BuEgaria(Series B, No. 17, p. 32), the Court said:
"It is a generally accepted principle of international law that in
the relation between Powcrs who are contracting parties to a
treaty, the provisions of municipal la\v canriot prevail over those
of the treaty."
29. In the iighhof the preceding observations, the Government
of Liechtenstein submit the fQllowing conclusions in relation to
the contents of the communication of the 9th September 1952
addressed by the Foreign Minister of Guatemala to the President
of the International Court of Justice:
(A) It must be a matter for consideration by the Court whether
the communicatioii of the Government of Guatemala of the'
9th September 1952 constitutes a Preliminary Objection within the
meaning of Rule 62of the Rules of the Court or a refusal, amounting
toa default, to plcad before the Court.
(B) The present observations of the Government of Liechten-
stein are based on the assurnption that the communication of the
9th September 1952 constitutes a Preliminary Objection to the
jurisdiction of the Court. This assurnption isadopted without
prejudiceto the right ofthe Government of Liechtenstein to introke
the provisionsofArticle 53of the Statute of the Court.
(C) The terms of the Declaration made by9Guaternala on the
27th January 1947 in accordance with Article 36 (2)and (3)of the
Statute of the InternationalCourt of Justice and submitting to the
jurisdiction of the Court for a period of five years are sufficient
to confer jurisdiction upon the Court to hear and determine. any
case in urhichproceedings were instituted prior to rnidnight, the
.26th January 1952.
(D) The International Court of Justice has the competencc, in
accordance both with Article 36 (6)of the Statute and with general
principles ofinternationaI.law, to determinc questions relnting to
its own jiirisdiction.
(E) The aüeged incapacity (which is not adrnitted) of the Govern-
ment of Guatemala under the Iaws of Guatemala to appear in the
presei~t case after the 27thJanuary 1952 in no way affects either
the obligations of that Government under international law or the
jurisdiction of the Court.
(F) Accordingly, the Government of Liechtenstein request the
Court to assume jurisdiction over the questions raised by the Govern.ment of Liechtenstein in their .4pplication of the 10th December
1951 and to reject the contrary contentions of the Governrnent of
Guatemala.
(G) The Government of Liechtenstein reserve their right to
iilvoke, should the necessity anse, the provisions of ArticIe j3
of the Statute of the Court in relation to the merits of the
present dispute.
Cambridge,11th May 1953.
Statement of the Observations of the Government of the Principality of Liechtenstein