Written Statement of the United States of America on questions III and IV submitted to the International Court of Justice by the United Nations General Assembly in Resolution 294(IV), dated October 22

COUR INTERNATIONALE DE JUçTICE

INTERPRÉTATION DES TRAITÉS DE

PAIX CONCLUS AVEC LA BULGARIE,

LA HONGRIE ET LA ROUMANIE

AVIS C0';SULTATDES30 MARSET 18JUII.T,1950PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

INTERPRETATION OF PEACE

TREATIES WITH BULGARIA,

HUNGARY AND ROMANIA

ADVISORY OPIXOF IlAl30tANIJULY18th1950 DEUXIÈME PHASE1
SECONDPHASE

WRITTEN STATEMENT OF THE UNITED STATES OF
AMERICA ON QUESTIONS III AND IV SUBMITTED TO

THE INTERNATIONAL COURT OF JUSTICE BY THE
UNITED NATIONS GENERAL ASSEMBLY IN
RESOLUTION 294 (IV), DATED OCTOBER 22, 1949

Intn>dz~ctory
The General Assembly of the United Nations on October 22,
1949, adopted Resolution 294 (IV),in which the Assembly decided

to submit certain qiiestions to the International Court of Justice
with a request for an advisory opinion. The first t\vo questions
were :
" '1Do the diplomatic eschanges between Bulgaria, Hungary
and Romania, on the one hand, and certain Allied and Associated
Powers signatories to the Treaties of Peace, on the other,erii-
ing the implementation of Article2 of the Treaties with Bulgaria
and Hungary and Article 3 of the Treaty with Romania, disclose
disputes subject to the provisions for the settlement of disputes
contained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace xvith Hungaq, and Article 38
of the Treaty of Peace with Romania ?'
In the event of an affirmative reply to question:1

'II. Are the Governments of Bulgaria, Hungary and Romania
obligated to carry out the provisions of theArti,cles referred to
in question 1, including the provisions for the appointment of their
representatives to the Treaty Commissions?' "

Pursuant to Article66 of the Statute of the Court and pursuant
to orders of the Court, written statements and communications
were transmitted to the Court and oral statements submitted.
On blarch 30, 1950, the Court rendered its opinion on these two
questions. The Court concluded, with respect to Question 1,
"that the diplomatic exchanges between Bulgaria, Hungary and
Romania on the one hand and certain Allied and Associated

Le Gouvernement du Royaume-Uni avait déjàfait connaitre ses vues sur les
questions III ct IV dans son exposéécritaucoursde la premiérephase de
cetteaffaire.
2The United Kingdom Government had previously stated its vieirç on Questions
III and IV in the mitten çtaternent submitted during the firspthase of this case.214 WRITTEN STATEXEST OF THE U.S.A.

Powers signatories to the Treaties of Peace on the other, concerning
the implementation of Article z of the Treaties with Bulgaria
and Hungary and Article 3 of the Treaty with Romania, disclose
disputes subject to the provisions for the settlement of disputes
contained in Article 36 of the Treaty of Peacc with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and Article 38
of the Treaty of Peace with Romania"; with respect to Ques-
tion II, "that the Governments of Bulgaria, Hungary and Romania
are obligated to carry out the provisions of those articles referred
to in Question 1, which relate to the settlement of disputes,
including the provisions for the appointment of their represent-
atives ta the Treaty Commissions".
Resolution 294 (IV) of the General Assembly decided upon
the submission to the International Court of Justice of two
further questions "in the event of an affirmative reply to

Question II and if within thirty days from the date wheti the
Court delivers its opinion, the Governments concerned have not
notified the Secretary-General that they have appointed their
representatives to the Treaty Commissions, and the Secretary-
General has so advised the International Court of Justice". The
Court's advisory opinion concerningQuestions 1and II was rendered
on ïilarch 30, 1950. Thirty days later, on April30, the Governmeiits
of Bulgaria, Hungary, and Rumania had not notified the Secretary-
General that they had appointed their representatives to the
treaty commissions. In a communication dated May 2, rgjo,
the Secretary-General so advised the Court.
The further questions contained in the General Assembly
resolution are :

" 'III. If one party fails to appoint a representative to a Treaty
Commission under the Treaties of Peace with Bulgaria, Hungary
and Romania where that party is ohligated to appoint a reresent-
ative to the Treaty Commission,is the Secretary-Genera Y of the
United Nations authorized to appoint the third memher of the
Commissionupon the request of the other party to a dispute accord-
ing to the provisions of the respective Treaties'
In the event of an affirmativereply to question I:I
'IV. IVould a Treaty Commissioncomposed of a representative
of one party and a third member appointed by the Secretary-
General of the United Nations constitute a Commission, within
the meaning of the relevant Treaty articles, competent to make
a definitive and binding decision in settlement of a dispute?' "

Questions III and IV, \\.hile stated separately and mhile
presenting technically separate questions, in substance raise a
singlebasic issue. That is:whether one party to a treaty containing
obligatory procedures for the settlement of disputes has the legal
power, by repudiating its obligation to be bound by those proce-

dures, to prevent the other parties from having the rights of the WRITTES STATEJIEXT OF THE U.S.A. '2x5

parties under the treatv determined in accordance with those
freaty procedures.
The issue is one of first importance in international law and
in the workine of the United Nations Or~anization. The Assemblv
is deeply intGested in the steps that Gay be takcn to prorno'
and encourage universal respect for and observance of human
rights and fundamental freedoms. The Assembly is also very
much interested in what may be done to make possible the effective

application of peaceful settlement procedures previously agreed
upon by the parties. The future of the United Nations may well
depend upon its ability to extend human rights and to hring
about the use of effective procedures of peaceful settlement.
It is important to the General Assembly to know, for its further
consideration of the question of the observance of human rights
and fundamental freedoms in Bulgana, Hungary, and Rumania,
lvhether the Governmeiits of those three countries have been
able to frustrate the provisions of the peace treaties for the
settlement of disputes by continuiiig to-refiise to carry out their
legal obligation to appoint representatives to the disputes com-
missions. If the Court advises that further proceedings may now

be had pursuant to the disputes articles of the treaties, appropriate
steps may then he takeii accordingly to settle the disputes which
the Court found to exist in its advisory opinion of March 30, 1950.
If on the other hand the Court advises, in answering Questions III
and IV, that the remedies provided by the peace treaties for
settling disputes have been exhausted and are now unavailing,
the General Assembly may \\-ish to explore other avenues to
facilitate a just settlement.
The Assembly is further much interested in the proper inter-
pretation and application of the disputes provisions of these
treaties because of the role assigned to the Secretary-General of
the United Nations under the treaty provisions. Similar provisions
may be included in proposed conventions coming before the

Assembly for approval. Neither the Assembly nor individual
States would favour the use of such provisions if they ivere held
inadequate and ineffective to achieve their obvious purpose.
Because of the very large number of existing treaties and other
international agreements which contain arbitration clauses similar
or analogous to the disputes provisions of the Bulgarian, Hun-
garian, and Rumanian peace treaties, the basic issue raised by
Questions III and IV in the present advisory case is one of general
and wide significance. Uecision on this issue can affect deeply
the negotiation of future treaties and agreements, and influence
strongly the attitude of States toward resort to legal processes
in the field of international relations.
It is the view of the Government of the United States that

the peace treaties, fairly and reasonably construed, give the
Governments of Bulgaria, Hungary, and Rumania neither the216 WRITTEN STATEMENT OF THE U.S.A

legal right nor the legal power to frustrate the operation of the
mandatory provisions for the settlement of disputes hy refusing
to appoint their representatives to the treaty commissions in

accordance with their treaty obligations. The present Written
Statement sets forth the considerations on which this view is based.

QUESTION \'II.-IF 0KE PARTY TO A DISPUTE FAILS TO APPOIST
A REPRESENTATIVE TO A TREATY COIIMISSION WHERE THAT PARTY
IS OBLIGATED TO DO SO, THE SECRETARY-GESER AFLTHE USITED
NATIOXS IS AUTHORIZED TO APPOINT THE THIRD MENBER OF THE
COMXISSIOK UPOK THE REQUEST OF THE OTHER PARTY

The applicable provisions of the Treaties of Peace with Bulgaria,

Hungary, and Rumania show that appointment hy the Sccretary-
Geiieral of the third memher of a commission does not depend
upon the prior appointment of representatives to the commission
by the parties to a &spute. Article 36 of the Bulgarian Treaty
(Hungarian Treaty, Article 40 ; Rumanian Treaty, Article 36)
provides, in part :

"Any such dispute not resolved by them [the Three Heads
of kIission]within a period of two months shall, unless the parties
to the disputeutually agree upon another means of settlement,
be referred at the request of either party to the dispute to a Com-
mission composed of one representative of each party and a third
member selected by mutual agreement of the two parties from
nationals of atbird country. Should the two parties fail to agree
within a period of one month upon the appointment of the third
member, the Secretary-General of the United Nations may be
requested by either party toake the appointment."

Selection of the third memher is to be sought in the first instance
through "rnutual agreement of the two +arties from nationals

of a third country". Thus the re$resentatives of the parties on
the commissions have no function under these peace treaties in
regard to selection of the third member. Arhitration clauses not
infrequently provide for selection of a third arbitrator through
agreement of the two arbitrators appointed by the parties. But
this is not the case here. It is the parties themselves and not
their appointed representatives who have the function of selecting

the third member.
In fact,under the treaty provisions quoted above, the parties
might prefer to have the third member of a disputes commissiori
selected before appointing their owvn national representatives.
The parties might want to have knowledge of the neutral member
of the commission as a guide in making their own appointments.
The parties hiight wisely wish to appoint representatives wvho

could converse with the third member without an interpreter.
Confidence in the wisdom and ohjectivity of the third member WRITTEN STATEIIENT OF THE U.S.A. zr7
could encourage the parties themselves to designate judicially-
minded and unpartisan national representatives to the disputes

commission. If the parties could not mutually agree upon selection
of the third member within the prescribed period of one month,
they could then apply to the Secretary-General of the United
Nations to make an appointment. In a difficult situation ~vhere
the parties were deeply coilcerned to safegnard their interests
in a disputed matter, an appointment by the Secretary-General
could prove to be just the catalyst necessary for encouraging
the parties to name their representatives and move forward with
the treaty procedures for settlement of disputes.-Indeed, in the

present case, designation of the third member by the Secretary-
General might serve this constructive and useful purpose.
But whether or not the designation should have such an effect
in the present case, the treaty clause should not be construed to
deprive the Secretary-General of the authority wh'ichthat clause
clearly confers upon him. Certainly it was never intended that
one of the parties should have the right, by repudiating its obli-
gation, to deprive the Secretary-General of this authority.
In the situation dealt with by Qiiestion IIIthe opposing parties

have not joined in applying to the Secretary-General for an appoint-
ment. This does not, of course, affect the Secretary-General's
power to make the appointment. The treaty provides that either
fiarty may reqnest the Secretary-General to appoint the third
rnember. Either party may do this ."should the two parties fail
to agrec mithin a period of one month upon the appointment of
the third member". The treaty provision States no condition that
the request may be made only after the parties have appointed
their national representatives. The one-month period begins to
run as soon as the time cornes for negotiation between the parties
concerning selection of the third member. Such negotiation is
called for at the end of the two-mont11period in which the Heads
of Mission are empowered to resolve a dispute.

It \vas on August 1, 1949, that the United States requested
Bulgaria, Hungary, and Rumania to join with it iii naming treaty
disputes commissions. The three Governments subsequently
rejected thisrequest. On January 5, 1950, the United States
advised the three Governments that Mr. Edwin D. Dickinson \vas
designated as the United States representative on the treaty com-
missions. At the same time, the United States requested the three
Governments to designate their representatives forthwith and enter
into consultations immediately with the United States Govern-
ment through the American Ministers accredited to them with a
view to the appointment of the third members of the commissions.
Under the treaty provisions, it was open to the United States from
September 1,1949, to request the Secretary-General of the United
Nations to appoint the third members of the commissions.218 WRITTEK STATEMENT OF THE U.S.A

Considering Question III separately in this manner, the conclu-
sion isevideut that the Secretary-General is empo\vered to appoint,
on the request of one party, the third member of a disputes com-

mission under the Bulgarian, Hungarian, and Rumanian peace
treaties where the parties have failed to agree on the choice of a
third member, regardless of the fact that the other party has
refused to appoint its representative. though obligated to do so.
The language of the treaties is clear, and there is no reason in law
or equity why the words of the treaties should not be construed to

mean what they Say.

QUESTION IV.-A TREATY COMMISSION COMPOSED OF A REPRE-
SENTATIVE OF ONE PARTY AND A THIRD MEMBER APPOINTED BY
THE SECRETARY-GENER AFLTHE UNITED NATIONS CONSTITUTES
A COMMISSION, WITHIN THE MEANING OF THE RELEVANT TREATY
ARTICLES, COMPETENT TO hIAKE A DEFINITIVE AND BINDING DECI-

SION IN SETTLEMENT OF A DISPUTE

It should be pointed out that Question IV is closely connected
with Question III. Question IV, like Question III, is asked with
~eference to the condition stated at the beginning of Question III,
namely, "If one party fails to appoint a representative to a Treaty

Commission under the Treaties of Peace with Bulgaria, Hungary
and Romania where that party is obligated to appcint a represent-
ative to the Treaty Commission".
The proposition that a commission consisting of the represent-
ative of one party and the third neutral member can decide a
dispute-both of these members concurring in the decision-is
asserted only with respect to a situation where the representative

of the other party to the dispute is absent through the default of
that party in refusing to appoint a representative. Question IV
submitted by the General Assembly presents a situation where just
such a default has occurred;in violation of treaty obligations deter-
mined by the Court, Bulgaria, Hungary and Rumania have refused
to appoint their representatives to treaty disputes commissions.

The proposition is not asserted with respect to other situations,
such as those where a commission representative has died, has
~esigned, is incapacitated to act, etc.
The provisions in the peace treaties for the obligatory settlement
of disputes are made to assure and guarantee a final settlement of
every dispute-a settlement which will be peaceful and orderly
and which will be undertaken and accomplished within a reason-

able period of time according to a time schedule set by the treaty
provisions. Final settlement cannot be frustrated by disagreement
between the representatives appointed by the parties. Express
provision is made for just such a contingency. The provision is that
a decision can be reached by the neutral member in agreement WRITTEN STATEMENT OF THE U.S.A.
zlg
with the representative of one of the parties. If the parties them-
selves are unable to agree in selecting the impartial arbitrator,
he is to be chosen by the premier officia1of the United Nations, on
the request of either party to the dispute. Those are the provisions
wh'ich the parties themselves devised and agreed upon for the
settlement of their treaty disputes.
The treaty disputes articles do not provide for referring a dispute

to a commission upon the agreement of both parties. The articles
do not make a reference optional in any way, but rather mandatory :
"Any such dispute ...shall ....be referred .... to a Commission...."
The articles are deliberately drawn so as to avoid the necessity of
subsequent agreement among the parties in order to make the
articles operative. If the parties cannot agree on the third member,
either fiarty may request the Secretary-General to appoint that
member. If the representatives of the parties on,the commission
cannot agree, then a binding decision may be made by a majority
of the commission-in practical terms that means by one of the
national representatives together with the third member appointed
by mutual agreement or by the Secretary-General. The treaty is

explicit on this point :"The decision of a majority of the members
of the Commission shall be the decision of the Commission, and
shall be accepted by the parties as definitive and binding."
A. The purpose of the treaty disputes articles is to provide an
obligatory means for the orderly and definitive settlcment of

treaty disputes.
It is evident from the structure and content of thetreaty disputes
articles that they are designed to provide the parties to the treaties
with orderly and at the same time definitive means of settling any
disputes which may arise between parties. The history of the
treaties while they were under negotiation clearly confirms that
snch was the purpose of Article 36 in the Bulgarian Treaty, Art-

icle 40 in the Hnngarian Treaty, and Article 38 in the Rumanian
Treaty. The treaty provisions should, therefore, be construed so
as to give effect to the design for providing orderly and definitive
means of settlement for disputes which arise between parties. It
~vould be an unnatural interpretation, contrary to thc evident
purpose of the disputes articles, to hold that a party could hy its
ouln defanlt prevent the settlement of a dispute according to the
procedures laid down in those articles. It would mean that there
would-be no legal recourse under the treaties against a defaulting
party intent upon circumventing any or al1 of the treaties' suh-
stantive provisions.

I. The firovisions of the disibutesarticles

The procednres for settling disputes between parties to the
peace treaties are set forth in Article 36 of the Treaty with Bul-
garia, Article 40 of the Treaty with Hungary, and Article 38 of
22220 WRITTEN STATEJIENT OF THE U.S.A.

the Treaty with Rumania. It may be appropriate to review these
procedures briefly. 011 the threshold of the treaty machinery
there is the effort at settlement of any dispute by direct diplomatic
negotiations. How long such an effort is to he made when
unattended by success is left by the treaty provisions up to the
parties to the dispute themselves. When one party feels that
the possibilities of negotiation are exhausted, that party is at

liberty to put the dispute before the Heads of Mission of the
Soviet Union, United Kingdom, and United States in the capital
of the ex-enemy country concerned. The. peace treaties allow
the Heads of Mission two months within which to resolve. the
dispute. To do so, they must act in concert; in other words,
unanimously.
If the Heads of Mission do not resolve the dispute within two
months, the treaty provisions give the parties freedom to agree
upon nieans of settlement of their own choice ; this would include
such means as mediation, conciliation, arbitration, and reference
ta an international tribunal for judicial decision. The peace
treaties take account, however, of the contingency that the Heads
of Mission may not settle a dispute and that the parties may

be unable to agree on means of settlement of their own choosing.
To meet this contingency, the treaties provide, as a final resort,
for what is in effect arbitration of the dispute by a commission
composed of one representative of each party and a third member
who is a national of a third country. It has heen seen earlier that
the treaty disputes articles do not make this arbitration optional-
either party may require it-so strong is the interest in having
disputes settled and settled in a peaceful manner.
If the partiesfail to agree on the third member of a commission,
the treaties provide that this shall not stall the arbitration ;at
the end of one month of failure to agree upon the third member,
either party may request the Secretary-General of the United

Nations to make the appointment. As pointed out above, this
third member has the practical power of decision in the dispute
if the parties' representatives on the commission do not agree.
The disputes provisions do not state that a treaty commission
can meet, do its business, and give its decision only if al1 three
members are present. They do provide, significantly, that the
decision of the majority of the members of the commission is
the commission's decision, to be accepted by the parties as defi-
nitive and binding.
These disputes provisions in the peace treaties are carefully
framed, so as to give full scope to the parties' capacity for settle-
ment by bilateral negotiation, so as to give certain major treaty
parties an opportunity at an appropriate stage to decide a dispute,

and so as to provide finally a means of settlement by arbitration
which shall not depend for its effectiveness on any new agreement
of the parties or on unanimity of view withiu the agency that \VRITTEN ST.4TEMEKT OF THE U.S.A. 221
is to settle the dispute. The treaty disputes articles contain careful

provisions on the time schedule to be followed in refcrring a dispute
to a commission and on the procedure for selecting the third
and neutral member of the commission in whose hands is the
ultimate power of decision.
Thus the peace treaty provisions are obviously designed and
intended to provide for definitive settlement of any disputes that
may anse between parties. The parties are not left free by the
treaties to agree or disagree according to circumstances, toconclude
or fail to conclude special agreements for the settlement of disputes
if and when these arise. The parties are committed in the treaties

to definitc and final settlement of any disputes by arbitration
if other prescribed methods of settlement prove in the end
unsuccessful.

2. The history of the fieace treaties while z~ndernegotiatio?~

The provisions of the peace treaties are clear and unequivocal.
Xo reference to the travazcxfiréfiaratoiresis in these circumstances
iiecessary. The review which follows of the course of negotiations
as they are disclosed in the records kept by the United States
Delegation of the meetings of the Council of Foreign Ifinisters
only confirms that the interpretation placed by the United States
Government on the clear language of the treaties is entirely

consistent with the course and outcome of the treaty negotiations.
The settlement of disputes articles in the treaties of peace
with Bulgaria, Hungary, and Rumania were discussed in the
Council of Foreign Ministers in the spring of 1946. The United
States made the following proposal, at first specifically with
reference to the Italian Peace Treaty, on settlement of disputes :

"Any dispute as to the interpretation or application of this
treaty, which may anse between two or more of the parties to
the treaty and which has not been satisfactorily resolved either
by the Treaty Commission or by direct diplomatic negotiations,
sliall be submitted to the International Court of Justice upon
application by any party ta a dispute."

The proposa1 was considered by the Foreign Ministers' Deputies
on June 12, 1946. The United Kingdom Deputy pointed out
that at that time no agreement had been reached on the subject
of the Treaty Commission. The Soviet Deputy stated that his
Delegation agreed to include a clause of this nature and accepted
the United States proposal with the following modification :

"Any dispute as to the interpretation or application of this
Treaty, which may arise ljetween two or more of the parties to
the Treaty and whicli has not been settled by direct diplomatic
negotiations, shall he submitted to the International Court of
Justice upon application by any party to the dispute."222 WRITTEN STATEMENT OF THE U.S.A.
The Deputies agreed to accept the article in principle, and referred
it to their drafting committee for further consideration in the

light of their discussion.
The drafting committee on June 26 agreed to the disputes
article, for the Balkan peace treaties, in the following form :
"Except where any other procedure is specifically provided
under any articles of the present Treaty, disputes concerning
the interpretation or execution of the Treaty shall be referredo
the Four Ambassadors acting as provided under Article [37, Ruma-
nia; 35:Bulgaria; and 39, Hungary], and, if not resolved by
them wthin a penod of two months, shall, at the request of any
party to any dispute, be referred to'the International Court of
Justice. Any dispute still pending at, or ansing after, the date
when the Ambassadors terminate their functions under Article
[37. Rumania ;35, Bulgaria ;and 39, Hungary], and which is not
settled by direct diplomatic negotiations, shall equally, at the
request of any party to the dispute, be referred to the International
Court of Justice."

The reference to "the Four Ambassadors" appears to have been
brought in as a result of discussions which the Foreign Ministers
had, prior to June 26, 1946, and specifically in connexion with
the Italian Peace Treaty, on the economic disputes articles of the
peace treaties ; these eventually became Article 31 in the Treaty
with Bulgaria, Article 35 in the Treaty with Hungary, and
Article 32 in the Treaty with Rumania. On June 20, the Ministers
had agreed that the "Amhassadors" of the four Powers at the
capital of the ex-enemy nation concerned should select the third
member of "conciliation commissions" organized to settle economic

disputes, if the parties to the dispute could not agree on a third
member.
On June 28, the Ministers discussed this matter further,
considering the contingency of "the Four Ambassadors" being
unable to agree on the selection of a third member. The United
Kingdom and United States Delegations at this time supported
a proposa1 for selection of a third memher of a conciliation com-
mission by the President of the International Court of Justice.
Secretary Byrnes stated that this proposa1 seemed very fair to
him ; it provided for conciliation inadvance and for final solution
of the dispute if this conciliation failed ; he believed that it was

important to provide for the settlement of disputes since feelings
would be embittered if such disputes were permitted to endure.
The Soviet Foreign Minister stated that the appointment of
an arbitrator was not the function of the International Court
of Justice. Secretary Byrnes in reply cailed attention to the fact
that it was not the Court but the President of the Court who
would select the arbitrator. He said that if it were not desired
to have the President select an arbitrator, some other way might
be found to settle this question. He would agree to the "Ambas- WRITTEN STATEMENT OF THE U.S.A. 223

sadors" if three out of four of them could make the decision.
He said he would also agree to give this task to the Secretary-
General of the United Nations. He said he di& not consider that
it \vas important who chose the arbitrator as long as a disinterested
person \vas chosen. The Soviet Foreign Rlinister said he was sure
the "Ambassadors" would be successful if their action were
concerted. He stated that it would be undesirable to charge the
Secretary-General of the United Nations with this function as

it would divert his attention to secondary questions; the Secretary-
General hadmany more important questions to deal with.
Foreign Secretary Bevin said he did not mind who made the
appointment-the most important matter was to find an impartial
person ;this was the usual practke in most questions of arbitra-
tion ; if no agreement were reached by the parties to a dispute,
some independent person should be appointed as arbitrator. The
Soviet Foreign BIinister reiterated his support of the proposal which
would give "the Four Ambassadors" the function of appointing the
third member of a conciliation commission. Secretary Byrnes again
pointed to the defects of this method if it were to be the final
resort for selecting a commission's third mcmber. He suggested that
if itivere not acceptable to iiame the Secretary-General, the Presi-
dent of the Gencral Assembly might be given the task of appoint-
ing an arbitrator. The Soviet Foreign Minister stated that since
the Presidents of the General Assembly rotated, cases might be

deferred until a suitable President mas in office.
Foreign Alinister Bidanlt then proposed to give "the Four Ambas-
sadors" the responsihility for selecting the third member, but, if
they did not agree, then the appointment should be made by the
President of the International Court of Justice. The United King-
dom and United States Delegations agreed. The Soviet Foreign
hIinister stated that the dificulties must be taken into account
~vhichmight arise for small countries. If "the Four Ambassadors"
reached agreement on an arbitiator, there would be a guarantee
that a just decision would be reached for such small countries. He
stated that the drawback of the French proposa1 was that it might
induce "the Four Ambassadors" not to come to agreement. The
Foreign hlinisters then proceeded to the next item on their agenda
without coming to any conclusion conceming this part of the
economic disputes article.
On June 28, 1946, the Deputies took up the draft of the general

disputes article which had been prepared by the Drafting Commit-
tee. The Soviet Deputy proposed the following alternative text for
the general disputes article.
"Any disputes ivhich may anse in the execution of the articles
of the Treaty shall be referred to a ConciliationCommissionconsist-
ing, on a hasis of parity, of representatives of the Governments
of the United Nation concerned and the Roumanian Government.
If within three months from the submissiou of the dispute, the \VRITTES STATEYEKT OF THE U.S.A.
224
Conciliation Commissionhas not reached agreement,either Govern-
ment may ask for the appointment of a third memher of the Com-
mission, chosen by mutual agreement of the two Governments
from nationals of other countries. Should the two Governments
fail to agree on the third member of the Commissioii,the Govern-
ments shall apply to the Ambassadors of the four Powers, who
will appoint the third member of the Commission."

The Soviet Deputy explained that the decision of the arbitrator
appointed by the "Ambassadors" would be final and binding, aiid
that "the Four Ambassadors" would be bound to appoirit an arbi-
trator ; he did not think that the Deputies need consider the possi-
bility of "the Four Ambassadors" failing ta agree on the appoint- -
me$ of an arbitrator.
The Soviet De~utv stated that his Delegation nro~osed this draft
only for the alk ka n \ihere the main diGutes in &hich the Soviet
Government was interested were likely to arise. In the Balkans,
the Soviet Government wished to maintain the principle of volun-
tary submission of disputes to the International Court :the Soviet

Delegation \vonld have no objection to the adoption of the drafting
cornmittee's text in relation to Italy, entailing compulsor~~subrnis-
sion ta the International Court. The Soviet Delegatioii stated that
it would prefer the Balkan text for Finland also.
The Deputies decided ta discuss the question of the general
disputes article at a later meeting. They did sa again on July I.
Reaching no agreement, they referred the matter to the Foreign
hlinisters. In the iiiterim, before consideration by the Ministers,
a committee of lawyers \\,as instructed by the Deputies to study
this question and make a report. This committee reported two
texts. The first of these texts was the proposal favoured by the
French, United Kingdom and United States Delegations and acccpt-
ed by the Soviet Delegation for the Italian Pcace Treaty on condi-

tion that the Soviet proposa1 be accepted for the Balkan and
Finnish treaties. This first text read :
"Except where any other procedure is specifically provided
under any article of the present Treaty, disputes concerniiig the
interpretation or esecntion of the Treaty shall be referred to the
Four Ambassadors acting as provided under Article 76 and, ifnot
resolvedby tbem within a period oftno months,shall, at the request
of any party to any dispute, he referred to the International Court
of Justice. Any dispute still pending at, or arising after, the date
when the Ambassadors terminate their Iunctions under Article 76,
and which is iiot settled by direct diplomatic negotiations, shall
equally, at the request of any party to the dispute, be referred to
the International Court of Justice."

The second text, proposed by the Soviet Delegation for inclusiori
in the Balkan and Finnish treaties, read as follo\vs :
"Save where any other procedure is specificallyprovided under
any article of the present Treaty. disputes concerning the inter- LVRITTEK STATEMEXT OF THE U.S.A. 225
pretation or execution of the Treaty shall be referred to the (Ambas-
sadors or Representatives) acting as provided under Article ....
except tliat in this case the (Ambassadors or Representatives)
will not be restcicted by the time-limit provided in that Article."
The Ueputies considered the report of the committee of lahvyers

on July IO. They reached no agreement. Likewise the Foreign
lliriisters failed to resolve the disagreement. The Council of .Foreign
hlinisters, therefore, on July 18, 1946, submitted to the Paris Peace
Conference alternate proposals for the general disputes articles in
the peace treaties. These alternate proposals were those which had
been prepared by the committee of lawyers. The Paris Peace
Conference recommended adoption of the proposa1 favoured by
the French, United Kingdom and United States Delegations, the
Conference vote being 15 to 6. The alternate Soviet proposal was
rejected by the Conference in a vote of 14to 6, with one abstention.
The Council of Foreign hlinisters finally reached agreement on the
general disputes article in the N~M,York session held at the end of
1946. The hlinisters discussed first the economic disputes article. On
November 30, 1946, the Soviet Foreign Minister stated that the
Soviet Delegation found it possible to depart from its former
position, and therefore proposed to accept a United States sugges-
tion made at the Paris meetiiig of the Council of Foreign Ministers

that the third member of a conciliation commission should, if neces-
sary, be named by the Secretary-General of the United Nations.
This provision was agreed to for al1 the peace treaties. On decem-
ber 3, the Foreign Ministers took up the general disputes article.
Foreign Secretary Bevin said it had been agreed that disputes
would go to "the Four Ambassadors", but that it had iiot beeii
agreed where thcy \vould go if "the Four Ambassadors" failed to
reach agreemcnt ; the French, United Kingdom and United States
Delegations maintained that such disputes should go to the Inter-
national Court of Justice. The Soviet Foreign Minister then stated
that he was prepared to accept the decision reached earlier on the
settlement of economic disputes to the effect that the arbiter should
be named by the Secretary-General of the United Nations. The
Foreirn Ministers arreed. and referred the article to the Deputies
for drafting. -
In the December 4 meeting of the Deputies, the Soviet Delega-
tiori stated that it would like to change the term ".4rbitration Com-

mission" to "Conciliation ~ommis~on" in describing the body
which ~vouldsettle general disputes iinder the treaties. The United
Kingdom Depiity proposed to refer to it simply as a "Commission".
The United States Deput), pointed out that it was not correct to
cal1 the commission a conciliation commission, becaiise it was more
than that ;the conciliation stage would be in the diplomatic nego-
tiatious and in the discussions of "the Four Ambassadors" ; the
next stage, unless othcr means should bè provided, ~vouldbe the
commission of three. The United States Deputy said he did not WRI~TEN STATEMENT OF THE u.s..~. 227

sible; that is to Say, what is so contrary to reason that it can not
be attnbuted to a man of good sense.
. . . . . . . . . , . . . . . . . . . . . . .
The rule we have just laid down & one of absolute necessity
and should be followed eveu when the text of the law or treaty,
considered in itself, contains nothing that is obscure or equivocal ;
for it must be observed that uncertainty in the meaning to be
given to a law or treaty is not due only to obscurities or to other
faults of expression, but is likewise due to the limitations of the
human mind, which can not foresee al1cases and al1circumstances
nor apprehend al1 the consequences of what is enacted or agreed
to, and, finally, to the impossibility of entenng into so many details.
Laws and treaties can only be stated in general terms, and in being
applied to particular cases tbey should be interpreted agreeably
to the intention of the legislator or of the contracting parties.
In no case can it be presumed that the parties had in mind anything
absurd. Consequently, when their expressions, taken in the proper
and ordinary sense, lead to absurdities, ive must deviate from
that sense just so far as is necessary to avoid the absurdity ....
up a treaty or any otbered tserious document, meant that nothing
should come of their act. The interpetation which ~wonldrender
the doczcntentnull and uoid can not be admitted. This rule may be
considered as a subdivision of the preceding one, for it is a form
of absurdity that the very terms of the document should reduce
it to mean nothing. The document mus1 be interpreted in such a
way as to proLuce its efect and no1 proue meaningless and uoid;
and in doing so, the same method is to be followed as was pointed
out in the preceding paragrapb. III bot11cases, as in al1 cases of
interpretation, the object is to give the sense which is presumed
to be most conformable to the intention of the parties. If several
different interpretations offer themselves, any one of wbich will
Save the document from being null or absurd, that one must be
preferred which appears to be most in accord with the intention
of the framer of the document. which intention can be ascertained
from the ~eculiar circumstances of the case and from other rules
ch. XVIÏ, sec. 282. III. Vattel, The Law of Nations (1758),. .~ .

Vattel's expressions have been quoted and applied in various
international claims cases. E.g., Costa Rican Claims, II, Inter-
national Arbitrations (Moore, 1898), 1551, 1565 (1862) : H~cdson's
Bay Company Claims, 1, ibid., 237, 266 (1869).
Other statements of the same principle have occurred in the
decisions of several international tribunals. In the arbitrator's
award in the Netherlands-Portugal dispute over Timor it was
stated :
"Conventions between States, like those between individuals,
ought to be interpreted 'rather in the sense in which they can
have someeffect than in the sense in which they can produce none'."
The Island of Timor, Hague Court Reports (Scott, 1916), 355.
384 ('9'4).228 WRITTEN STATEIIEXT OF THE U.S.A.
The American and British Claims Arbitration Tribunal, established
pursuant to a special agreement between Great Britain and the

United States, dated August 18, 1910, made the following statement
iii one of the cases which came before it :
"International law, as well as domestic law, may not contain,
and generally does not contain, express rules decisive of partic-
ular cases ; but the function of jurisprudence is to resolve the
conflict of opposing rights and interests by applying, in default
of any specific provision of law, the corollaries of general princi-
plcs, and so to find-exactly as in the mathematical sciences-
tlie solution of the problem. This is the method of jurisprudeiice ;
it is the method by which the law has been gradually evolved
in every country, resulting in the definition and settlement of
legal relations as well between States as between private indiv-
iduals." Easterri Extensio?z, Australasia and China Telegraph
Company, Ltd., 18, A.J.I.L. (xgzq), 835. 838 (1923).
In another of the cases which came before the same tribunal,
the award contained the following statement :

"Nothing is better settled, as a canon of interpretation in al1
systems of law, than that a clause must be so interpreted as to
give it a meaning rather than so as to deprive it of ineaning. We
are not asked to choose between possible meanings. We are asked
to reject the apparent meaning and to hold that the provision
has no meaning. This we cannot do." Cayuga Indian Claims,
20, A.J.I.L. (1926), j74, 567 (1926).
Thc Permanent Court of International Justice has stated:

so-called restrictive interpretation would be contrary to the plain
terms of the article and would destroy what has been clearly
graiited." The Wimbledon, Series A, No. 1, 24-25 (1923).

In a subsequent advisory opinion, the Pcrmanent Court declined
to construe the disputes article of a treaty in a way which xvould
render it relatively ineffective. The Treaty of Lausanne provided
that, in the event of no agreement being reached within nine
months between Turkey and Iraq on the frontier separating
those two countries, "the dispute shall be referred to the Council

of the League of Nations". The Council requested an advisory
opinion whether its action was to be "an arbitral axvard, a recom-
mendation or a simple mediation". Turkey had maintained in
the Council that a definitive settlement of the frontier could not
be made without its consent. The Court held that:
"the intention of the Parties was, by means of recourse to the
Council, to insure a definitive and binding solution of the &spute
which might arise between them, namely, the final determiiia-
tion of the frontier". Frontier between Iraq and Tnvkey, Series B.
xo. 12, 19 (15)2j).

111givirig its opinion, the Court stated that action by the Council,
in deciding the boundary question, required unanimity. But, LVRITTES STATEfilEST OF THE U.S.A. 229
assimilating that situatioii to analogous cases under the League
Covenant, the Court maintained that the parties themselves
could not vote. Thus, a reasonable and practicable solution was
found for giving effect to the design of the Treaty of Lausanne,

to i~rovide for definitive settlement of the boundarv between
~utkey and Iraq.
In Judgment No. 8, the Permanent Court held :

"An interpretation which would confine the Court simply to
recording that the Convention had been incorrectly applicd, or
that it had not been applied, without being able to laydown the
conditions for the re-establishment ofthe treaty rights affected,
would be contrary to wliat would, firima facie,be the natural
object of the clause ;for a jurisdiction of this kind, instead of
settling a dispute once and for al], would leave open the possib-
ility of further disputes." The ChorzdwFnctory (Judgment No. S.
Jurisdiction), SerieA, No. 9, 24-zj (1927).

Still later, the Permànent Court, in making an order dated
August 19, 1929, stated that "in case of doubt, the clauses of a
special agreement by which a dispute is referred to the Court
must, if it does not involve doing violence to their terms, be
construed in a manner enabling the clauses themselves. to have
appropriate effects". The Free Zones O/ Ufiper Savoy and the
Distri oftGex, Series A, Xo. 22, 13 (1929).
Application to the problem now before the Court of the principle
affirmed and reaffirmed by these authorities requires the conclusion
that the objective of definitive settlemcnt of a dispute hy a
commission under the peace treaties is not made unattainable
by the unlawful refusal of a party to appoint its representative

to a treaty disputes commission. To hold that a commission
composed of the representatives of one party and a third member
appointed by the Secretary-General is competent under the
pcace treaties to decide a dispute, where the other party has
defaulted on its obligation to appoint a representative to the
commission, gives effect to the purpose of treaty disputes articles
and the evident design of the partics to the treaties in concluding
them.
To hold that one party's default on its obligatioii to appoint
a representative defeats definitive settlement of a dispute would
nullify the crucial provisions of the disputes articles in the peace
treaties. The provisions for definitive settlemcnt of disputes by
a commission are crucial because they alone, among the provisions

for settlement of disputes, are not conditioned on agreement of
the parties to a dispute or on unanimity among the Threc Heads
of Mission. If a party to a dispute could prevent final settlement
by a commission through refusing unlawfully to appoint its
representative to the disputes commission, the disputes provisions
of the treaty would be effectively niillified, and the parties would230 WRITTEN STATEMENT OF THE U.S.A.
for practical purposes be in the same position as if the treaty
contained no provision for settlement of disputcs.
Parties to an existing unresolved dispute are always at liberty
to make a special agreement referring the dispute to arbitration.
This would be the situation if the peace treaties contained no

disputes articles constituting a prior commitment to submit
future disputes to arbitration. This would be the situation if
the treaties contained such provisions-as they do-and one
party could defeat the intended operation of these provisions
by defaulting on its obligation to appoint a commission represent-
ative. So to hold would mean that the disputes provisions would
not be given their "appropriate effects", but rendered nugatory
and useless as though the provisions had not been incorporated
in the treaties.
States in the community of nations of course do not become
bound to submit their disputes to arbitration except as they give
their consent to this mode of settlement. In the case of some dispu-

tes, States give that consent only after a dispute has arisen ; they
then make an ad hoc agreement to submit the particular dispute
to arbitration according to agreed terms. In other cases, States
agree in advance that future disputes between them shall be settled
by arbitration ; the agreement provides nho the arbitrators will
be or how they shall be chosen. In such cases, the States'consent
to arbitration is given when the initial agreement is made, not
when a dispute has arisen and the time has come for designating
arbitrators.
With respect to the problem presented by Questions III and IV,
the Court has already determined that the parties to the peace
treaties gave their consent to arbitration of disputes at the time

when these treaties were concluded ;the Court has held that they
are obligated to appoint their representatives to thetreaty disputes
commissions. It is thus established authoritatively that the disputes
articles of the peace treaties are binding international agreements,
and that the consent to arbitration given in them is not subject
to revocation at the will of one party alone. It would, therefore,
be anomalous to hold that one party's attempt at unilateral revoca-
tion of consent through refusal to appoint a representative could
be effective to defeat operation of the arbitration agreement. \Vhere,
for example, a State, either by special agreement or through having
otherwise accepted jurisdiction, is a party in a contentious case
before the International Court of Justice, it obviously cannot
prevent the Court from proceeding to judgment simply by attempt-

ing to revoke its consent to submission of the case for judicial
decision. The Corfil Channel (Preliminary Objection), Judgment
of March 25, 1948 ;cf. Minority Schoolsin Ufifier Silesia, SeriesA,
NO. 15, 25 (P.C.I.J., 1928). WRlTTEN SThTEaIENT OF THE U.S.A. 53I

B. A party to a treaty cannot erect a ralid defense, or othenvise
improve its position, by alleging circumstances which are the
result of the party's o\rn breach of obligation.

The law has expressed this principle in varying ways. The origin
of the principle lies very far back in history. For example, the sixth-
century Digest commissioned by the Emperor Justininn contains
the following quotation from Ulpian :

"Nemo ex suo delictomelioremsuam condicionem facerepotest."
Pandects Book L, Chapter Xi711, 134 (1).

In the field of international law, the Permanent Court of Inter-
national Justice has stated the following mle :
"It is, moreover, a principle generaily accepted in the juris-
prudence of international arbitration, as well as by municipal
courts, that one party cannot avail himself of the fact that the
other has not fulfilled some obligation or has not had recourse
to some means of redress, if the former party lias, by someillegal
act, prevented the latter from fulfillingthe obligation in question,
or from having recourse to the tribunal which would have been
open to him." The Chorzdmw Factory (Judgment No. 8, Jurisdic-
tion), Series A, No. 9, 31 (1927).

A number of cases have held that where a State has contracted

an international obligation, the State cannot plead, in defense
against a claim based on the obligation, that the domestic law of the
State is not such asto entitle the claimant ;in other \vords, failure
to enact domestic legislation which will bnng domestic law into
line with the requirements of an international obligation is no
defense against a claim based on the obligation. Germon Settlers in
Poland, Series B, No. 6, 36 (1923) ;Exchange of Greekand Tzirkish
Populatioizs, Series, B, No. IO, 19-21 (1925) ; The Chorzdw Factory
(Judgment No. 13, Indemnity), Series A, No. 17, 33 (1928) ; The
Free Zones of Upper Savoy and the District of Gex (Order, Decem-
ber 6, 1930). Series A, No. 24, 12 (1930) ; same (Judgment No. 17),
Series A/B, No. 46, 167 (1932) ; Greco-Bz~lgarian"Commzcnities",

Series B. No. 17,32 (1930) ; fieutment of PolishNationals in Danzig,
Series A/B, No. 44, 24 (1932).
In The Pions Fund of the Californias, the Permanent Court of
Arbitration held that Alexico'sfailure over 33years to pay annuities
required by treaty did not, through any principle of prescription,
extinguish Mexico's obligation to pay the annuities. Hague Court
Reports (Scott, 1g16), 1, 5-6 (1902).
IVhere, in an international arbitration, one party becoming anrare
of the prospect of an awarcl against it brings about the withdrawal
of its appointed arbitrator,this default isheld ineffective to frustrate
the arbitration. Colombia v. Canca Co., 190. U.S. 524 (1903) ;
French-Mexican Mix~d Claims [1929-1930]. Ann. Dig., 424, 425232 WRITTEX STATEMEXT OF THE U.S.A.
(1929) ;United States-German Mixed Claims, Decision of the Com-

mission rendered by the Umpire, June 15, 1939 ; Lena Goldfields
Co., Ltd. v. U.S.S. R. [1929-1930], Ann. Dig. 426 (1930) ;see z.
Hyde, International Law (2nd rev. ed., 1945), 1629 ; Witenberg,
L'Organisatioizjudiciaire, la Procédzcret la Sentence internationales
(1937)~281 ; hlérignhac, Traité thdoriqz~eet pratiqz~ede l'Arbitrage
international (~Sgg),276-77 ; III, Phillimore, Commentaries upon
I?zternationalLaw, (2nd ed., 1873). 4. But see III, Calvo, Le Droit
internationaltlzéoriq?let firutique (5th ed., 1896), sec. 1768.
In Colombia v. Cauca Co., the Republic of Colombia and the
Company agreed to submit a controversy to a special commission.
This commission consisted of three arbitrators-one appointed
on behalf of Colombia, one on behalf of the Company, and the

third by agreement between the United States Secretary of State
and the Colombian Minister at Washington. The commission
\vas to reach its decisions by majority vote. The controversy in
questioii was tried before the commission. Toward the end of
the proceedings, the Colombian commissioner announced his
resignation. The remaining two commissioners proceeded to
make an award. The United States Supreme Court, in an opinioii
delivered by Mr. Justice Holmes, held that the award \vas valid
and that the u:ithdraural of the Colombian commissioner could
not frustrate the arbitration.
In the French-Mexican Mixed Claims case, a convention of

March, 1927. between France and Mexico provided for the arbi-
tration of certain internationalclaims. Subsequently, the Mexican
Government took the position that the commission president's
functions had already expired, and proposed to the French
Government the appointment of a new umpire. The French
Government declined to accept this proposal. Thereafter, the
Mexican commissioner absented himself from the commission.
The commission then proceeded, with the Presidcnt and the
French commissioiier present, to dispose of the cases which had
already been presented to the commission. They held that the
absence of representation of Mexico in the commission did not
form a juridical obstacle to the making of awards by majority
decision.

Follo~ing the First World \Var, varions claims between the
United States and Germany were submitted by agreement of
the two countries to an arbitral tribunal. This tribunal consisted
of an American commissioner, a German commissioner, and an
umpire. Hearings were held and an award made in the early 1930's.
Subsequently, the American agent moved for a rehearing on
the whole record, on the ground that there had been fraud in
the original presentation of evidence to the arbitrators. rehearing
was held. After the parties had made tiieir submission, and urhile
the tribunal was engaged in deciding the issues presented to it,
the German commissioner announced his retirement from the WRITTEN STATEMENT OF THE U.S.4. 233

commission on March 1, 1939. The American commissioner
prepared an opinion holding that this withdrawal did not oust
the jurisdiction of the commission. The umpire, in a decision

rendered June 15, 1939, gave as the decision of the commission
that the coinmission remained competent to decide the questions
before it, despite the withdrawal of the German commissioner.
See VI, Hackworth, Digest of International Law (1943)~ 90.97.
In the Lena Goldfields case, the Soviet Government, in a con-
cession agreement, had granted to the Company exclusive rights
of exploration and mining of certain areas of Soviet territory.
The agreement provided that al1 disputes arising out of the
agreement should be decided by a court of arbitration consisting
of three menibers-one to be selected by the Soviet Government,
another by the Lena Company, and a third by mutual agreement
of the parties. The agreement provided that, if one of the national

arbitrators should be absent, the dispute could be settled by
the other national arbitrator and the "super-arbitrator", provided
their decision be unanimous. In 1929 and 1930, there were varioiis
disagreements between the Soviet Government and the Company.
The Company demanded arbitration, to which the Soviet Govern-
ment agreed. The parties proceeded to appoint their arbitrators,
and agreed on the "super-arhitrator". After the date for the
first meeting of the tribunal had been fixed,but before any meeting
took place, the Soviet Government contended that the arbitration
was cancelled because, the Soviet Government alleged, the Com-
pany had ceased to finance the undertaking provided for in the
coiicessioii agreement. The Soviet Government's arbitrator never

attended a meeting of the tribunal. The "super-arbitrator",
together with the arbitrator representing the Company, held
that the concession agreement \\-as still operative and that the
jurisdiction of the arbitral tribunal remained unaffected.
The holding that withdrawal of an arbitrator does not frustrate
the tribunal's work is familiar inmiinicipal law. Bz~rtletv. Smith,2,
Barn. K.B. 412, 94, Eng. Rep. 587 (1734) ; Goodman v. Sayers,
2, Jac. & IV. 249, 37. Eng. Rep. 622 (Ch.1820) ; In re Yozbng
and Bzllman, 13 C.B. 623, 627, 138, Eng. Rep. 1344-r34j (18j3) ;
Toledo S.S. Co. v. Zenith Transp. Co., 184 Fed. 391 (C.C.A., 6th,
1911) ; A. T. C S.F. Ry. v. Brotherhood of Loc. Firemen & Eng.,
26 F (zd), 413 (C.C.A. 7th, 1928) ; Carpenter v. Wood, I Met..

409 (Mass. 1840) ; Dodge v. Brennan, 59, N.H., 138 (1879) ;
American Eagle Fire Ins. Co. v. Ar.J. Ins. Co., 240, N.Y. 398,
148, N.E. 562 (1925) ; Widder v. Bufalo & L. Huron Ry., 24,
U.C.R. 222 (Upper Canada &.B. 186j); [1861] 1, Dalloz 494
(Fr. Cass. 1860).
There is no difference in principle bet~veen an attempt to frus-
trate arbitration proceedings after they have started by with-
drawing an arbitrator, and an attempt to frustrate the commence-
ment of arbitratioii proceedings, after they have heen agreed234 WRIïTEN STATEMENT OF THE U.S.A.

to, by refusing to appoint an arbitrator. Both are unilateral and
illegal efforts to obstruct the carrying out of agreed settlement
procedures. \\'hile some of the cases dealing with the withdrawal
of an arbitrator have stressed the unfairness of permitting partially
executed proceedings to be fmstrated by the illegal withdrawal
of an arbitrator, it is equally unfair to permit agreed procedures
of settlement to be fnistrated by the illegal refusal to name an
arbitrator.
Of course, the situation is different ifthere is nousal to appoint
arbitratorsand no difficulty inrganizing the fullarbitral tribunal.
And the situation is different if provisions for arbitration-and
the statute enacted to give them effect-are not held to create an
obligation on parties to appoint arbitrators.TheSaint Croix arbitra-

tion between Great Britain and the United Statesand the arbitra-
tion provided for in the Irish Free State Agreement Act (1922) are
illustrative.
Under a Treaty dated November 19,1794, betaeen Great Britain
and the United States, provision was made for the arbitration of a
boundary. The arbitration tribunal was to consist of one commis-
sioner named by Great Britain and one by the United States, the
two commissioners to agree on the choice of a third. The two
national commissioners were appointed, and met together. At this
time the two commissioners debated whether, before selecting a
third, they were empowered to appoint a secretary and order a
survey to be made. After hearing arguments fro~ncounsel, the two

commissioners concluded that they did not, in the absence of the
third commissioner, have authority to act as a commission. Never-
theless, the two national commissioners, in their individual capaci-
ties, advised the agents to have a survey made, and this was in
fact done. Three days after the two commissioners gave this advice
to the agents, the commissioners agreed without difficulty on the
clioice of a third commissioner, and the commission then proceeded
nith its work. 1, Moore, International Arhitrations (1898), 1,
13-14 (1796) In this case, there was no question of a refusal by
either Government to appoint its national commissioner, and the
two national commissioners experienced no difficulty in selecting
a third. Thus, no possibility of frustration loomed, and nothing

stood in the way of the full commission being constituted.
In the Irish Free State case, the Judicial Committee of the Privy
Council gave an advisory opinion on July 31, 1924. concerning the
effect to be given Article 12 of the Articles of Agreement for a
Treaty between Great Britain and the Irish Free State under the
Irish Free State Agreement Act, 1922, 12, Geo. V, Ch. 4. Command
i'aper No. 2214 (1924) ; [1923-19241, Ann. Dig. (Lauterpacht),
368 (1924). The statute purported to give legal effect to the Articles
of Agreement. Under Article 12, the boundary between Northern
Ireland and the Irish Free State was to be determined by "a Com-
mission consisting of three persons, one to be appointed by the IVRITTES STATEIIEKT OF THE U.S.A. 235
Gover~imeiit of the Irish Free State, one to be appointed by the

Government of Northern Ireland and one who shall be the Chair-
man to be appointcd by the British Government". The Judicial
Committee was asked whether, in the absence of a commissioner
appointed by the Government of Northern Ireland, a commission
within the meaning of Article 12 of thetreaty would be constituted
and eompetent to determine the boundary. The Judicial Committee
gave a negative answer. Their opinion was based on the fact that
"the Tribunal designated by Article .12 is a statutory tribunal
brought into existence by the terms of the Article", and that the
statute did not authorize the Crown to instruct the Governor of
Northern Ireland in default of advice from his Ministers to make an
appointment or authorize the Crown, acting on advice of the
Ministers of the United Kingdom, to make the appointmcnt for

Northern Ireland. The Judicial Committee, as the highest judicial
organ nithin the British Commoii\vealth, gave its opinion that the
conditions laid down in the statute by Parliament had not been
satisfied. The agreement which Parliament had sought by statute
to implement was an agreement between the United Kingdom
and the Irish Free State ;the Government of Northern Ireland was
not a party to the agreement and was not by the agreement obli-
gated to appoint an arbitrator or to suhmit to arbitration. This
case therefore differs basically from a case in international lalv
where States, parties to a treaty, have obligated themselves to
submit to arbitration. The Judicial Committee of the Privy Council
in effect found no obligation on the Government of Northern

Ireland resulting from the agreement to which it was not a party,
or from the statute which did not purport to go beyond the agree-
ment. The Judicial Committee accordingly held that in the absence
of an arbitrator appointed by the Government of Northern Ireland,
the factual situation contemplated by the agreement and by the
statute did not obtain, and that therefore there was no tribunal.
But the situation is completely different when a State, which is
a party to a treaty, defanlts upon its treaty obligation to appoint
its representative to a treaty commission.
Determination that a peace treaty disputes commissioti com-
posed of the representative of one party and a third member
appointed by the Secretary-General of the United Nations can
decide a dispute, when the other party defaults on its obligation
to appoint a representative, does not involve the introduction of

novel or anomalous doctrine into the law. In the municipal laiv of
the great majority of countries, provision is made for the appoint-
ment of an arbitrator (often by a court) if one of the parties to a
dispute refuses or failç to appoint its arbitrator under an arbitra-
tion agreement. This is true in the commercial arbitration law of
29 out of 43 countries whose law is found summarized in Commer-
cial Arbitration and the Law throz~ghozc tte World (International
Chamber of Commerce, Basle, 1949). See also Russell, Arbitration

23 WRITTEN STATEYENT OF THE U.S.A.
236
alzd Awnrd (13th ed., 1935). 125 ;6. IVilliston, Contracts (rev. ed.,
1938)~sec. 1920 ; Sturges, Commercial Arbitrations and Avnrds
(1930), secs. 146-47.
In municipal law, in the absence of statutes, there was an
early reluctance on the part of courts to aid in the specificenforce-
ment of arbitration agreements mhen one party defaulted and

declined to proceed with arbitration, though the validity and
binding character of the arbitration agreement was recognized
and was held to support a11action for damages and to bar an
action at law on the principal contract. The theory of this reluctance
\vas a judicial policy against parties contractingto oust thc courts
of jurisdictioii. See 6, \Villiston, op. cit. sz~firn,sec. 1919. This
rationale, which subsequently yielded to statutory cnactments,
has of course no relevance in the field of international law, where
there are no courts of general jurisdiction to which States can
resort without having in some manner obtained a consent to
suit from the other party or parties to a dispute. Justice Holmes
pointed this out in the United States Supreme Court's opinioii
in Colo~nbiav. Cauca Co., szipra. Arbitratioii thus has a special
importance in international law, since it is very often the only
mode of peaceful and definitive settlement of a dispiite open

to the parties.
The principle that a party to a dispute cannot improve its
position through its own breach of obligation has obvious appli-
cation to the situation presented by Questions III and IV no\v
before thc Court. The fact that Bnlgaria, Hungary, and Rnmania
have refused to appoint representatives to the treaty commis-
sionsas they are legally bound to do-should not be held to
provide them with any escape from definitive settlement under
the peace treaties of the disputes to which these States are parties.
International tribunals have applied the principle in a variety
of situations, enunciating in the course of their application various
rules which stem from the principle : such as the rules ou failure
to enact domestic legislation as required by treaty, and on with-
drawal of an arbitrator. It is properly the judicial function to
carry on the process of applying general principles of law to

particular situations as these are presented for a tribunal's con-
sideration. The principle that a party cannot take advantage
of its own default is\yell-established. Its application to the situation
presented in Question IV is evideilt.
In this connexion, it is significant that the Charter of the
United Nations in Article 13 (1) provides that "The General
Assembly shall initiatc studies and make recommendations for
the purpose of:
"(a) .... encouraging tlie progressive development of international
law...." And in Resolution 171 (II), the General Assembly recordcd
its view "that it is a responsibility of the United Nations to
encourage the progressive development of international lam", \\'RITTES STATEAlEKT OF THE U.S.A. 237

noted the fact "that the Iiiteriiational Court of Justice is the
principal judicial organ of the United Nations", and considered
it to be "of paramount importance that the Court should be
utilized to the greatest practicable extent in the progressive
development of international law, both in regard to legal issues
between States and in rcgard to constitutional interpretation"
[of the Charter and the constitiitions of specialized agencies].

C. Consideratioii aiid decision of a dispute under the peace
treaties by a commission coiisisting of a representative of one
party and a third member appointed by the Secretary-General,
when the other party has unla~vfully refused to appoint its
representative, \vould not prejudice the rights of the party
so refusiiig to appoint

It has beeii said, in coniiexioii with municipal arbitration law,
that al1 the members of an arbitral tribuiial need to bc present
for the consideratiori of a case submitted to the tribunal, because
of "the right of each of the parties to the counsel aiid influence
of each arbitrator with every other arbitrator on the board upon
the whole case". See Sturges, ConznzercialArbitrations altd Azeiards
(1930)~ sec. Zoj. In the situation now bcfore the Court on
Question IV, it has already heen deten~iiried by the Court, in

answer to Questioii II, that Bulgaria, Hungary, aiid Rumania
are legally obligated to appoint their represcntatives to the treaty
disputes commissions. If the Governrnents of these States persist
iii their breach of obligation, refusing to appoint representatives
to the commissions, they must be takeii t« have waived their
right to be represented on the commissions. Shey must he con-
sidered estopped to complain now or in the future, ou the ground
of lack of represeiitation, coiicerning the consideration and decision
of disputes by commissions on which they dccline to bc represented.
A party to a dispute committed by treaty to go to arbitration,
and obligated to appoiiit an arbitrator, cannot be heard to say
that the arbitration proceedings are invalid for lack of the party's
appointed arbitrator when the party has refused, in defiance of
legal duty, to appoint an arbitrator. Such party must be considered

estopped to dcny that it has waived ils right to be represented
oii the arbitral tribunal. No State can claim that its right is
denied when it refuses to avail itself of the right which it claims
iç denied it.
Detemination that a tribunal may proceed to considcr and
decide a case referred to il when one party has refused to name its
arbitrator does ilot, of course, involve exclusion of that party from
relxesentation on the tribunal. The proposition is asserted only
with respect to a situation where a party persistently decliues t«
be represented ;as pointed out earlier, it is not asserted with respect
to cases where a national representative on a treaty disputes com-238 IVRITTES STATEXEST OF THE U.S.A.

mission dies, resigns, or becomes disabled. Determination that a
commission may proceed to consider a case when one party has
refused to name a representative of course does iiot mean that if
the party changes its position, and appoints a representative, that
representativc cannot join the commission and take part in its
proceedings. Affirmative aiiswers to Questions III and IV definitely

would not exclude Rulgarian, Hungarian, aiid Rumaiiian repre-
sentatives from the treaty disputes commissions if thcse three
countries clecided to appoint representatives at any stage before
finaldecision by the commissions. The commissions wuld sit with
two members oiily if and so long as the threc countries failed to
name their representatives.
It should also bc noted that affirmative ans\vers to Questions III
and IV wuld iiot oblige the treaty commissions to decide the
disputes in the absence of Bulganan, Hungarian, and Rumaniaii

representatives. Commissions c6nsisting of-the rcpresentative of
one vartv and a third member avvointed bv the Sccretarv-Gener2l~ ~ ~ ~
wouid hive to determine for the&elves whether, in the absence of
full representation, it is practicable and advisable for the commis-
sions to decide the dispntes. Cf. Status of Eastern Cnrelin, Series B.
No. 5, 28-29 (1923).

If Questioiis III aiid IV are not answered in the affirmative, a
party to an arbitration agreement inteiit upon evading its inter-
national obligations will be able in practice to set them at nought
and to nullify arbitration just as effectivcly as by denying the
csistence of a dispute-if this course werc open to siich a party.
But the Court has alreday held that States cannot avoicl the conse-
quence and impact of treaty obligations to arbitrate merely by

denying that any dispute exists. Ncgative answers on Ques-
tions III and IV would render illusory the decision given by the
Court in its opinion on Questions 1 and II which the General
..\ssembly submittcd for advisory opiiiion.
If the third and fourth questions arc ans\vercd ~iegatively, inter-
national agreements to arbitrate could then be made ultimately
valueless by a State which is not willing to honour its legal obliga-
tions. It would be in the power of such a Stateto avoid arbitration
simply by refusing to appoint an arbitrator. Parties to arbitration

agreements and to treaties containing arbitration clauses ~vould
for practical piirposes thus be placed in the same position as if they
had undertaken no obligation to arbitrate. States are always frec
to agree specially to arbitration when a dispute has arisen between
them. This \voiild be their position if one party's rcfusal to appoint
an arbitrator frustrated the commitment to arbitrate. Such a result
could only opcratc tu further the purposcs of a Statc not prepared \\'RITTES STATEJIEST OF THE U.S.A. 239

to live according to the law and carry out its responsihilities as a
member of the community of nations.
\Vhen account is taken of the considerable nnmber of inter-
national arbitration clauses and agreements, it is apparent that
iiegative answers to Questions III and IV would have wide effects.
Authoritative determination that arbitration clauses similar aiid
analogous to the disputes articles in the peace treaties contain

an escape hatch beneficial only to defaulting parties would do
grave damage to international arbitration. This would not be a
situation capable of prompt and adequate remedy through
legislative enactment. Renegotiation of arbitration clauses and
agreements on a large scale would be required. It is highly doubtful
that such a course \vould prove satisfactory.
This leads to afurther consideration. It would surely be undesir-
able if, in the course of negotiating international agreements,
States felt impelled to consider and propound al1 sorts of possi-
bilities of bad faith on the part of prospective treaty parties,
and to make multifarious and detailed provisions for such con-

tingencies.
It is of basic importance to the fabric of interriational society
that nations shall feel and show respect for law in their dealings
with one another. It cannot lightly be concluded that the law
in a situation such as that now before the Court brooks evasion
by a defaulting party. So to hold could have seriously demoralizing
effects on international relations. Disputes clauses should be
interpreted so as to facilitate amicable adjustmeiit, and not so
as to make parties to a dispute doubt the efficacy of important
means of peaceful settlement and on that account resort to non-
amicable modes. Treaty provisions, and particularly provisions
for the definitive settlement of disputes. should not be construed
to allow the parties unsuspected avenues of escape from the
fulfilment of obligations. Smoldering disputes among States are

too likely to create serious and chronic disturbances of inter-
national relations and eventually endanger peace.
Thc United States submits that the third and fourth qucstioris
submitted to the Court by the General hssembly for ail advisory
opinion should be answered affirmatively.