          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
       (UKRAINE c. FÉDÉRATION DE RUSSIE)

        ORDONNANCE DU 20 JANVIER 2021

                 2021
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
       (UKRAINE v. RUSSIAN FEDERATION)

           ORDER OF 20 JANUARY 2021

                          Mode officiel de citation :
       Application de la convention internationale pour la répression
      du financement du terrorisme et de la convention internationale
       sur l’élimination de toutes les formes de discrimination raciale
     (Ukraine c. Fédération de Russie), ordonnance du 20 janvier 2021,
                           C.I.J. Recueil 2021, p. 3

                               Official citation :
      Application of the International Convention for the Suppression
     of the Financing of Terrorism and of the International Convention
          on the Elimination of All Forms of Racial Discrimination
        (Ukraine v. Russian Federation), Order of 20 January 2021,
                          I.C.J. Reports 2021, p. 3

                                                                 1213
                                                 No de vente
ISSN 0074-4441                                   Sales number:
ISBN 978-92-1-003874-4

                 © 2022 CIJ/ICJ, Nations Unies/United Nations
                     Tous droits réservés/All rights reserved

                      Imprimé en France/Printed in France

                                20 JANVIER 2021

                                 ORDONNANCE

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
   (UKRAINE c. FÉDÉRATION DE RUSSIE)

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION

   (UKRAINE v. RUSSIAN FEDERATION)

                               20 JANUARY 2021

                                     ORDER

               3

                              COUR INTERNATIONALE DE JUSTICE

   2021
                                              ANNÉE 2021
 20 janvier
Rôle général                                 20 janvier 2021
  no 166

                APPLICATION DE LA CONVENTION
             INTERNATIONALE POUR LA RÉPRESSION
               DU FINANCEMENT DU TERRORISME
            ET DE LA CONVENTION INTERNATIONALE
           SUR L’ÉLIMINATION DE TOUTES LES FORMES
                  DE DISCRIMINATION RACIALE
                              (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                            ORDONNANCE

               Présents : M. Yusuf, président ; Mme Xue, vice‑présidente ; MM. Tomka,
                           Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
                           M. Gaja, Mme Sebutinde, MM. Bhandari, Robinson,
                           Crawford, Salam, Iwasawa, juges ; MM. Pocar, Skotnikov,
                           juges ad hoc ; M. Gautier, greffier.

                   La Cour internationale de Justice,
                 Ainsi composée,
                 Après délibéré en chambre du conseil,
                 Vu l’article 48 de son Statut et le paragraphe 3 de l’article 44 de son
               Règlement,
                 Vu l’ordonnance du 8 novembre 2019, par laquelle la Cour a fixé au
               8 décembre 2020 la date d’expiration du délai pour le dépôt du contre‑
               mémoire de la Fédération de Russie, et l’ordonnance du 13 juillet 2020,
               par laquelle elle a, à la demande du défendeur, reporté cette date au 8 avril
               2021 ;

               4

4 	      application de la cirft et de la ciedr (ord. 20 I 21)

   Considérant que, par lettre du 22 décembre 2020, S. Exc. M. Dmitry
Lobach, agent de la Fédération de Russie, a demandé que le délai fixé
pour le dépôt du contre‑mémoire soit à nouveau prorogé de six mois, soit
jusqu’au 8 octobre 2021, en expliquant que les restrictions liées à la pan-
démie de COVID‑19 avaient continué de susciter des difficultés et donc
des retards dans la préparation de cette pièce ; et que, dès réception de
ladite lettre, le greffier en a transmis copie à l’agent de l’Ukraine, confor-
mément au paragraphe 3 de l’article 44 du Règlement ;
   Considérant que, par lettre du 6 janvier 2021, M. Yevhenii Yenin,
agent de l’Ukraine, a indiqué que son gouvernement s’opposait à la nou-
velle prorogation sollicitée par la Fédération de Russie pour le dépôt de
son contre‑mémoire, soulignant notamment que le défendeur n’avait pas
suffisamment justifié sa demande ; que l’agent a ajouté que, si elle obtenait
ce nouveau report, la Fédération de Russie bénéficierait de dix mois sup-
plémentaires par rapport au délai accordé à l’Ukraine pour déposer son
mémoire ; et qu’il a précisé que, si la Cour devait faire droit à la demande
de la Fédération de Russie, la nouvelle prorogation ainsi accordée devrait
être aussi courte que possible, de sorte à ne pas porter préjudice aux inté-
rêts de l’Ukraine ;
   Compte tenu des vues des Parties,
   Reporte au 8 juillet 2021 la date d’expiration du délai pour le dépôt du
contre‑mémoire de la Fédération de Russie ;
   Réserve la suite de la procédure.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le vingt janvier deux mille vingt et un, en trois exem-
plaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de l’Ukraine et au
Gouvernement de la Fédération de Russie.

                                                   Le président,
                                      (Signé) Abdulqawi Ahmed Yusuf.
                                                      Le greffier,
                                           (Signé) Philippe Gautier.

5


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DETROIT
DE CORFOU

(FIXATION DU MONTANT DES REPARATIONS
DUES PAR LA REPUBLIQUE POPULAIRE D’ALBANIE)

ORDONNANCE DU 24 JUIN 1949

1949

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

THE CORFU
CHANNEL CASE

(ASSESSMENT OF THE AMOUNT OF COMPENSATION
DUE FROM THE PEOPLE’S REPUBLIC OF ALBANIA)

ORDER OF JUNE 24th, 1949

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
La présente ordonnance doit étre citée comme suit:

« Affaire du Détroit de Corfou, Ordonnance du 24 juin 1949:
C. I. J. Recueil 1949, p. 222. »

This Order should be cited as follows :

“Corfu Channel case, Order of June 24th, 1949:
I.C.J. Reports 1949, p. 222.”

No de vente:
Sales number 21

222

INTERNATIONAL COURT OF JUSTICE

YEAR 1949.

Order made on June 24th, 1949.

THE CORFU
CHANNEL CASE

(ASSESSMENT OF THE AMOUNT
OF COMPENSATION DUE FROM
THE PEOPLE’S REPUBLIC OF ALBANIA)

The Acting President of the International Court of Justice in
the Corfu Channel case,

Having regard to Article 48 of the Statute of the Court,
Having regard to Articles 37 and 38 of the Rules of Court,

Having regard to the Order of the Court of April gth, 1949,
in the Corfu Channel case, regulating the procedure for the assess-
ment of the amount of compensation due from the People’s
Republic of Albania to the United Kingdom of Great Britain
and Northern Ireland,

Whereas by telegram dated Tirana, June 23rd, 1949, the Deputy
Minister for Foreign Affairs of Albania has asked for the extension,
to July 1st, 1949, of the time-limit for the presentation, by the
Government of the People’s Republic of Albania, of its observa-
tions on the amount demanded from it by the United Kingdom,
time-limit which the Order of April 9th, 1949, fixed as June 25th,

1949 ;
Whereas there is no reason for refusing the request of the
Albanian Government,
4

1949.

June 24th

General List
No. 1.
ORDER OF JUNE 24th, 1949 (CORFU) 223

Decides

To extend the time-limits fixed by the Order of the Court of
April gth, 1949, to the following dates:

Friday, July 1st, 1949, for the submission by the Government
of the People’s Republic of Albania of its observations on the
amount demanded from it ;

Monday, August Ist, 1949, for the reply of the Government
of the United Kingdom ;

Thursday, September 1st, 1940, for the reply of the Government
of the People’s Republic of Albania.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this twenty-fourth day
of June, one thousand nine hundred and forty-nine, in three
copies, one of which will be placed in the archives of the Court,
and the others transmitted to the Government of the United
Kingdom of Great Britain and Northern Ireland and to the
Government of the People’s Republic of Albania respectively.

(Signed) J. G. GUERRERO,
Acting President.

(Signed) GARNIER-COIGNET,

Deputy-Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

INTERPRETATION DES TRAITES DE
PAIX CONCLUS AVEC LA BULGARIE,

LA HONGRIE ET LA ROUMANIE

(DEUXIEME PHASE)

AVIS CONSULTATIF DU 18 JUILLET 1950

1950

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

INTERPRETATION OF PEACE
TREATIES WITH BULGARIA,
HUNGARY AND ROMANIA

(SECOND PHASE)
ADVISORY OPINION OF JULY 18th, 1950
Le présent avis doit étre cité comme suit:
«Interprétation des traités de paix (deuxième phase),
Avis consultatif: C. I. J. Recueil 1950, p. 221.»

This Opinion should be cited as follows:

“Interpretation of Peace Treaties (second phase),
Advisory Opinion: I.C.]. Reports 1950, p. 221.”

N° de vente: 45
Sales number

221

INTERNATIONAL COURT OF JUSTICE

YEAR 1950

July 18th, 1950

INTERPRETATION OF PEACE
TREATIES WITH BULGARIA,
HUNGARY AND ROMANIA

(SECOND PHASE)

Interpretation of article of a treaty referring the settlement of disputes
to a commission composed of one representative from each party and a
third member chosen by common agreement between the two parties ;
power conferred upon the Secretary-General of the United Nations to
proceed to the appointment of a third member, failing agreement between
the parties,— Inapplicability of this provision to the case in which one of
the parties refuses to appoint its own commissioner.— Natural and
ordinary meaning of the terms ; meaning which accords with the normal
order of the appointment of commissioner—provision to be strictly
construed.— Breach of a treaty obligation ; impossibility of providing
a vemedy by modifying the conditions for the exercise of the power to
appoint the third member as laid down in the Treaties.—Impassibility
to apply the principle of interpretation ut res magis valeat quam
pereat contrary to the letter and spirit of the Treaties.

ADVISORY OPINION

Present: President BASDEVANT; Vice-President GUERRERO;

judges ALVAREZ, HACKWORTH, WINIARSKI, DE
VISSCHER, SIR ARNOLD McNatrr, KLAESTAD, BADAWI
PASHA, KRYLOV, ReaD, Hsu Mo, AZEVEDO; Registrar
HAMBRO.

1950
July 18th
General List:
No. 8
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 222

THE Court,
composed as above,

gives the following Advisory Opinion :

On October 22nd, 1949, the General Assembly of the United
Nations adopted the following Resolution :

“Whereas the United Nations, pursuant to Article 55 of the
Charter, shall promote universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion,

Whereas the General Assembly, at the second part of its Third
Regular Session, considered the question of the observance in
Bulgaria and Hungary of human rights and fundamental free-
doms,

Whereas the General Assembly, on 30 April 1949, adopted
Resolution 272 (ITI) concerning this question in which it expressed
its deep concern at the grave accusations made against the Govern-
ments of Bulgaria and Hungary regarding the suppression of.
human rights and fundamental freedoms in those countries ;
noted with satisfaction that steps had been taken by several
States signatories to the Treaties of Peace with Bulgaria and
Hungary regarding these accusations; expressed the hope that
measures would. be diligently applied, in accordance with the
Treaties, in order to ensure respect for human rights and funda-
mental freedoms; and most urgently drew the attention of the
Governments of Bulgaria and Hungary to their obligations under
the Peace Treaties, including the obligation to co-operate in the
settlement of the question,

Whereas the General Assembly has resolved to consider also
at the Fourth Regular Session the question of the observance
in Romania of human rights and fundamental freedoms,

Whereas. certain of the Allied and Associated Powers signatcries
to the Treaties of Peace with Bulgaria, Hungary and Romania
have charged the Governments of those countries with violations
of the Treaties of Peace and have called upon those Governments
to take remedial measures,

Whereas the Governments of Bulgaria, Hungary and Romania
have rejected the charges of Treaty violations,

Whereas the Governments of the Allied and Associated Powers
concerned have sought unsuccessfully to refer the question of
Treaty violations to the Heads of Mission in Sofia, Budapest and
Bucharest, in pursuance of certain provisions in the Treaties
of Peace,

Whereas the Governments of these Allied and Associated Powers
have called upon the Governments of Bulgaria, Hungary and

3
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 223:

Romania to join in appointing Commissions pursuant to -the
provisions of the respective Treaties of Peace for the settlement
of. disputes concerning the interpretation or execution of these
Treaties,

Whereas the Governments of Bulgaria, Hungary and Romania
have refused to appoint their representatives to the Treaty Com-
missions, maintaining that they were under no legal obligation
to do so,

Whereas the Secretary-General of the United Nations is author-
ized by the Treaties of Peace, upon request by either party to
a dispute, to appoint the third member of a Treaty Commission
if the parties fail to agree upon the appointment of the third
member,

Whereas it is important for the Secretary-General to be advised
authoritatively concerning the scope of his authority under the
Treaties of Peace,

The General Assembly

1. Expresses its continuing interest in and its increased concern
at the grave accusations made against Bulgaria, Hungary and
Romania ;

2. Records its opinion that the refusal of the Governments of Bul-
gatia, Hungary and Romania to co-operate in its efforts to examine
the grave charges with regard to the observance of human rights
‘and fundamental freedoms justifies this concern of the General
Assembly about the state of affairs prevailing in Bulgaria,
Hungary and Romania in this respect ;

3. Decides to submit the following questions to the International
Court of Justice for an advisory opinion :

‘I. Do the diplomatic exchanges between Bulgaria, Hungary
and Romania, on the one hand, and certain Allied and
Associated Powers signatories to the Treaties of Peace,
on the other, concerning the implementation of Article 2
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 con-
tained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and
Article 38 of the Treaty of Peace with Romania ?’

In the event of an affirmative reply to question I:

‘II. Are the Governments of Bulgaria, Hungary and Romania
obligated to carry out the provisions of the articles
referred to in question I, including the provisions for
the appointment of their representatives to the Treaty
Commissions ?’

In the event of an.affirmative reply to question II and if, within
thirty days from the date when the Court delivers its opinion,
6
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 224

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 :

‘III. If one party fais to appoint a representative to a Treaty
Commission under the Treaties of Peace with Bulgaria,
Hungary and Romania where that party is obligated to
appoint a representative to the Treaty Commission, is
the Secretary-General of the United Nations authorized
te appoint the third member of the Commission upon
the request of the other party to a dispute according
to the provisions of the respective Treaties ?’

In the event of an affirmative reply to question III:

‘IV. Would a Treaty Commission composed 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 ?’

4. Requests the Secretary-General to make available to the
International Court of Justice the relevant exchanges of diplomatic
correspondence communicated to the Secretary-General for cir-
culation to the Members of the United Nations and the records
of the General Assembly proceedings on this question ;

5. Decides to retain on the agenda of the Fifth Regular Session
of the General Assembly the question of the observance of human
rights and fundamental freedoms in Bulgaria, Hungary and
Romania, with a view to ensuring that the charges are appropriately
examined and dealt with.”

In an Opinion given on March 30th, 1950 (I.C.J. Reports of
Judgments, Advisory Opinions and Orders, 1950, pp. 65 ef sgg.),
the Court answered :

To question I:

“that the diplomatic exchanges between Bulgaria, Hungary and
Romania on the one hand and certain Allied and Associated Powers
signatories to the Treaties of Peace on the other, concerning the
implementation of Article 2 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 with Hungary, and Article 38
of the Treaty of Peace with Romania ;”

To question II:

“that the Governments of Bulgaria, Hungary and Romania
are obligated to carry out the provisions of those articles referred

7
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 225

to in Question I, which relate to the settlement of disputes, includ-
ing the provisions for the appointment of their representatives
to the Treaty Commissions.”

On March 30th, the Registrar notified the substance of the
Court’s answers to the foregoing two questions by telegrams to
the Secretary-General of the United Nations and to the Govern-
ments of all the signatories of the Peace Treaties,

By telegram of May Ist, 1950, confirmed by letter of the same
date and filed in the Registry on May 2nd, the Acting Secretary-
General of the United Nations notified the Court that he had not
received information, within thirty days of the date of the delivery
of the Court’s Advisory Opinion quoted above, that any one of the
three Governments had appointed its representative to the Treaty
Commissions.

By Order made on May 5th, 1950, the President of the Court,
as the Court was not then sitting, decided: (1) to fix Monday,
June 5th, 1950, as the date of expiry of the time-limit for the
submission by the States concerned, of written statements on Ques-
tions III and IV of the foregoing Resolution ; (2) to reserve the
rest of the procedure for further decision.

A certified copy of this Order, the operative part of which had been
notified by telegram of May 5th to the Secretary-General and
the Governments concerned, was sent to all these Governments
by letter of May 9th.

By letter of May 16th, 1950, the Secretary-General of the United
Nations sent to the Registrar additional documents including new
diplomatic correspondence on the present case, transmitted to the
United Nations by the delegations of Canada, of the United King-
dom of Great Britain and Northern Ireland and of the United States
of America. These documents are listed in an annex hereto.

By letter of June 2nd, 1950, a written statement from the Govern-
ment of the United States of America relating to Questions III and
IV was transmitted to the Registry of the Court.

The United Kingdom Government had previously stated its
views on Questions ITI and IV in the written statement submitted
during the first phase of this case.

By letter of May 5th, 1950, the Assistant Secretary-General of
the United Nations in charge of the Legal Department informed the
Registry of his intention to take part in the oral proceedings.

By letters of June 12th and 22nd, 1959, respectively, the Govern-
ment of the United States and the United Kingdom Government
stated their intention of submitting oral statements.

At public sittings held on June 27th and 28th, 1950, the Court
heard oral statements submitted :
8
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 226

on behalf of the Secretary-General of the United Nations by
Dr. Ivan Kerno, Assistant Secretary-General in charge of the Legal
Department ;

on behalf of the Government of the United States of America, by
the Hon. Benjamin V. Cohen ;

on behalf of the Government of the United Kingdom of Great
Britain and Northern Ireland, by Mr. G. G. Fitzmaurice, C.M.G.,
Second Legal Adviser of the Foreign Office.

*
+ *

Having stated, in its Opinion of March 3oth, 1950, that the
Governments of Bulgaria, Hungary and Romania are obligated to
carry out the provisions of those articles of the Peace Treaties which
relate to the settlement of disputes, including the provisions for the
appointment of their representatives to the Treaty Commissions,
and having received information from the Secretary-General of the
United Nations that none of those Governments had notified him,
within thirty days from the date of the delivery of the Court’s
Advisory Opinion, of the appointment of its representative to
the Treaty Commissions, the Court is now called upon to answer
Question III in the Resolution of the General Assembly of Octo-
ber 22nd, 1949, which reads as follows:

“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 obligated
to appoint a representative to the Treaty Commission,
is the Secretary-General of the United Nations author-
ized to appoint the third member of the Commission
upon the request of the other party to a dispute accord-
ing to the provisions of the respective Treaties ?”

Articles 36, 40 and 38, respectively, of the Peace Treaties with
Bulgaria, Hungary and Romania, after providing that disputes
concerning the interpretation or execution of the Treaties which
had not been settled by direct negotiation should be referred to the
Three Heads of Mission, continue:

“Any such dispute not resolved by them within a period of two
months shail, unless the parties to the dispute mutually agree
upon another means of settlement, be referred at the request of
either party to the dispute to a Commission composed of one
representative of each party and a third member selected by mutual
agreement of the two parties from nationals of a third 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 to make
the appointment.

9
OPIN. OF I8 VII 50 (INTERPRETATION OF PEACE TREATIES) 227

2. The decision of the majority of the members of the Commis-
sion shall be the decision of the Commission, and shall be accepted
by the parties as definitive and binding.”

The question at issue is whether the provision empowering the
Secretary-General to appoint the third member of the Commission
applies to the present case, in which one of the parties refuses to
appoint its own representative to the Commission.

It has been contended that the term ‘‘third member”’ is used here
simply to distinguish the neutral member from the two Commis-
sioners appointed by the parties without implying that the third
member can be appointed only when the two national Commis-
sioners have already been appointed, and that therefore the mere
fact of the failure of the parties, within the stipulated period, to
select the third member by mutual agreement satisfies the condition
required for the appointment of the latter by the Secretary-General.

The Court considers that the text of the Treaties does not admit
of this interpretation. While the text in its literal sense does not
completely exclude the possibility of the appointment of the third
member before the appointment of both national Commissioners
it is nevertheless true that according to the natural and ordinary
meaning of the terms it was intended that the appointment of
both the national Commissioners should precede that of the third
member. This clearly results from the sequence of the events
contemplated by the article : appointment of a national Commis-
sioner by each party; selection of a third member by mutual
agreement of the parties ; failing such agreement within a month,
his appointment by the Secretary-General. Moreover, this is the
normal order followed in the practice of arbitration, and in the
absence of any express provision to the contrary there is no reason
to suppose that the parties wished to depart from it.

The Secretary-General’s power to appoint a third member is
aerived solely from the agreement of the parties as expressed
in the disputes clause of the Treaties; by its very nature such a
clause must be strictly construed and can be applied only in the
case expressly provided for therein. The case envisaged in the
Treaties is exclusively that of the failure of the parties to agree upon
the selection of a third member and by no means the much more
serious case of a complete refusal of co-operation by one of them,
taking the form of refusing to appoint its own Commissioner.
The power conferred upon the Secretary-General to help the parties
out of the difficulty of agreeing upon a third member cannot be
extended to the situation which now exists.

Reference has been made for the purpose of justifying the reversal
of the normal order of appointment, to the possible advantage that
might result, in certain circumstances, from the appointment of a
third member before the appointment by the parties of their respect-
ive commissioners. Such a change in the normal sequence could only

10
OPIN. OF I8 VII 50 (INTERPRETATION OF PEACE TREATIES) 228

be justified if it were shown by the attitude of the parties that they
desired such a reversal in order to facilitate the constitution of the
Commissions in accordance with the terms of the Treaties. But such
is not the present case. The Governments of Bulgaria, Hungary and
Romania have from the beginning denied the very existence of a
dispute, and have absolutely refused to take part, in any manner
whatever, in the procedure provided for in the disputes clauses of
the Treaties. Even after the Court had given its Advisory Opinion
of March 30th, 1950, which declared that these three Governments
were bound to carry out the provisions of the Peace Treaties for
the settlement of disputes, particularly the obligation to appoint
their own Commissioners, these Governments have continued to
adopt a purely negative attitude.

In these circumstances, the appointment of a third member by
the Secretary-General, instead of bringing about the constitution
of a three member Commission such as the Treaties provide for,
would result only in the constitution of a two-member Commission.
A Commission consisting of two members is not the kind of com-
mission for which the Treaties have provided. The opposition of the
Commissioner of the only party represented could prevent a Com-
mission so constituted from reaching any decision whatever. Such
a Commission could only decide by unanimity, whereas the dispute
clause provides that “‘the decision of the 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’. Nor would
the decisions of a Commission of two members, one of whom is
appointed by one party only, have the same degree of moral autho-
rity as those of a three-member Commission. In every respect, the
result would be contrary to the letter as well as the spirit of
the Treaties.

In short, the Secretary-General would be authorized to proceed
to the appointment of a third member only if it were possible to
constitute a Commission in conformity with the provisions of the
Treaties. In the present case, the refusal by the Governments of
Bulgaria, Hungary and Romania to appoint their own Commission-
ers has made the constitution of such a Commission impossible
and has deprived the appointment of the third member by the
Secretary-General of every purpose.

As the Court has declared in its Opinion of March 30th, 1950, the
Governments of Bulgaria, Hungary and Romania are under an
obligation to appoint their representatives to the Treaty Commis-
sions, and it is clear that refusal to fulfil a treaty obligation
involves international responsibility. Nevertheless, such a refusal
cannot alter the conditions contemplated in the Treaties for the
exercise by the Secretary-General of his power of appointment.
These conditions are not present in this case, and their absence

II
OPIN. OF I8 VII 50 (INTERPRETATION OF PEACE TREATIES) 229

is not made good by the fact that it is due to the breach of a
treaty obligation. The failure of machinery for settling disputes
by, reason of the practical impossibility of creating the Commission
provided for in the Treaties is one thing ; international responsi-
bility is another. The breach of a treaty obligation cannot be reme-
died by creating a Commission which is not the kind of Commission
contemplated by the Treaties. It is the duty of the Court to inter-
pret the Treaties, not to revise them.

The principle of interpretation expressed in the maxim: Uz? res
magis valeat quam pereat, often referred to as the rule of effectiveness,
cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spirit.

It has been pointed out that an arbitration commission may
make a valid decision although the original number of its members,
as fixed by the arbitration agreement, is later reduced by such
circumstances as the withdrawal of one of the commissioners. These
cases presuppose the initial validity of a commission, constituted
in conformity with the will of the parties as expressed in the arbi-
tration agreement, whereas the appointment of the third member
by the Secretary-General in circumstances other than those contem-
plated in the Treaties raises precisely the question of the initial
validity of the constitution of the Commission. In law, the two
situations are clearly distinct and it is impossible to argue from
one to the other.

Finally, it has been alleged that a negative answer by the Court
to Question III would seriously jeopardize the future of the large
number of arbitration clauses which have been drafted on the same
model as that which appears in the Peace Treaties with Bulgaria,
Hungary and Komanta. The ineffectiveness in the present case of
the clauses dealing with the settlement of disputes does not permit
such a generalization. An examination of the practice of arbitration
shows that, whereas the draftsmen of arbitration conventions have
very often taken care to provide for the consequences of the inability
of the parties to agree on the appointment of a third member, they
have, apart from exceptional cases, refrained from anticipating a
refusal by a party to appoint its own commissioner. The few
Treaties containing express provisions for such a refusal indicate
that the States which adopted this course felt the impossibility of
remedying this situation simply by way of interpretation. In fact,
the risk of such a possibility of a refusal is a small one, because
normally each party has a direct interest in the appointment of its
commissioner .and must in any case be presumed to observe its
treaty obligations. That this was not so in the present case does not
justify the Court in exceeding its judicial function on the pretext

12
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 230

of remedying a default for the occurrence of which the Treaties
have made no provision.

Consequently, Question III must be answered in the negative. It
is therefore not necessary for the Court to consider Question IV,
which requires an answer only in the event of an affirmative answer
to the preceding Question.

For these reasons,
THE COURT IS OF OPINION,
by eleven votes to two,

that, if one party fails to appoint a representative to a Treaty
Commission under the Peace Treaties with Bulgaria, Hungary
and Romania where that party is obligated to appoint a represent-
ative to the Treaty Commission, the Secretary-General of the
United Nations is not authorized to appoint the third member of
the Commission upon the request of the other party to a dispute.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this eighteenth day of July,
one thousand nine hundred and fifty, in two copies, one of which
will be placed in the archives of the Court and the other transmitted
to the Secretary-General of the United Nations.

(Signed) BASDEVANT,
President.

(Signed) E. HAMBRO,
Registrar.

*
* *

Judge KryLov, while joining in the conclusions of the opinion
and the general line of argument, declares that he is unable to concur
in the reasons dealing with the problem of international respon-
sibility which, in his opinion, goes beyond the scope of the request
for opinion.

Judges Reap and AZEVEDO, declaring that they are unable to
concur in the Opinion of the Court, have availed themselves of the
right conferred on them by Article 57 of the Statute and appended
to the Opinion statements of their dissenting opinion.

(Intttalled) J. B.

Unitialled) E. H.

13
255

ANNEX

DOCUMENTS TRANSMITTED TO THE INTERNATIONAL

COURT OF JUSTICE BY THE SECRETARY-GENERAL OF

THE UNITED NATIONS IN ACCORDANCE WITH THE

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY
ON 22 OCTOBER, 1949

CONTENTS

I. RECORDS oF GENERAL ASSEMBLY, SECOND PART OF THIRD
SESSION

Folder 1.
Inclusion of item in agenda.
Records of proceedings.

Records of the General Committee, 58th and 59th meetings.

Records of the General Assembly, 189th and 1goth plenary meet-
ings.

Folder 2.

Inclusion of ttem in agenda,
Documents.

Letter dated 16 March, 1949, from the
permanent representative of Bolivia
to the Secretary-General requesting
the inclusion of an additional item in
the agenda of the third regular ses-
sion of the General Assembly A/820

Letter dated 19 March, 1949, from the
Australian Mission to the United
Nations addressed to the Secretary-
General requesting the inclusion of an
additional item in the agenda of the
third regular session of the General
Assembly A/821

Agenda of the third regular session of
the General Assembly ; report of the
General Committee A/829
[See paragraphs
3a and 3b.]
38
OPIN. OF 18 VIE 50 (INTERPRETATION OF PEACE TREATIES)

[Note—See Folder 4 for:

Telegram dated 4 April, 1949, from the
Government of the Republic of Hungary
to the President of the General Assembly

and

Telegram dated g April, 1949, from the
Government of the People’s Republic
of Bulgaria to the Secretary-General

Folder 3.

A/831

A/832 and Corr. I.]

Ad hoc Political Committee.
Records of proceedings.

34th meeting.
35th meeting.
36th meeting.
37th meeting.
38th meeting.
39th meeting.
40th meeting.
41st meeting.

Folder 4.

Ad hoc Political Committee.

Documents.

Telegram dated 4 April, 1949, from the
Government of the Republic of Hun-
gary to the President of the General
Assembly

Telegram dated g April, 1949, from the
Government of the People’s Repub-
lic of Bulgaria to the Secretary-Gen-
eral

Allocation of items on the agenda of the
second part of the third session ; letter
dated 13 April, 1949, from the Presi-
dent of the General Assembly to the
Chairman of the Ad hoc Political
Committee

A/831

A/832 and Corr. 1

A/AC.24/47

256

39
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 257

Cuba: draft resolution A/AC.24/48 and Corr. 1
Cuba: amended draft resolution A/AC.24/48/Rev. 2
Australia: draft resolution A/AC.24/50

Bolivia : draft resolution A/AC.24/51/Corr. 1
Australia : draft resolution A/AC.24/52

Chile: amendment to the Bolivian
draft resolution (A/AC.24/51/Corr. 1) A/AC.24/53

Colombia and Costa Rica: amendment
to the Bolivian draft resolution
(A/AC.24/51/Corr. x) AJAC.24/54

Cuba and Australia : amendment to the
Bolivian resolution (A/AC.24/51/
Corr. 1) A/AC.24/56

Telegram dated 23 April, 1949, from the
Government of the People’s Republic
of Hungary to the Secretary-General A/AC.24/57

Telegram dated 27 April, 1949, from the
Government of the People’s Republic
of Bulgaria to the Secretary-General A/AC.24/58

Report of the Ad hoc Political Com-
mittee A/844

Folder 5.
Plenary meetings of the General Assembly.
Records of proceedings.

z2o1st meeting.
202nd meeting.
203rd meeting.

Folder 6.
Plenary meetings of the General Assembly.
Documents.

Resolution 272 (III), adopted by the
General Assembly, 30 April, 1949.

[Note—See Folder 4 for:
Report of the Ad hoc Political Committee A/844.]

40
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES)

258

IJ. RELEVANT EXCHANGES OF DIPLOMATIC CORRESPONDENCE COM-
MUNICATED TO THE SECRETARY-GENERAL FOR CIRCULATION TO
THE MEMBERS OF THE UNITED NATIONS

Folder 7.

Letter dated 20 September, 1949, from
the representative of the United
States of America to the Secretary-
General (with annexes)

Letter dated 19 September, 1949, from
the representative of the United
Kingdom of Great Britain and North-
ern Ireland to the Secretary-General
(with annexes)

Letter dated 19 November, 1949, from
the representative of the United
Kingdom of Great-Britain and
Northern Ireland to the Secretary-
General of the United Nations (with
annex)

Letter dated 6 January, 1950, from
the representative of the United
Kingdom of Great Britain and
Northern Ireland to the Secretary-
General of the United Nations (with
annexes)

Note dated 6 January, 1950, from the
representative of Canada to the
Secretary-General of the United
Nations (with annexes)

Letter dated 6 January, 1950, from
the representative of the United
States of America to the Secretary-
General of the United Nations (with
annexes)

Letter dated 17 February, 1950, from
the representative of Canada to the
Secretary-General of the United
Nations (with annex)

Letter dated 17 February, 1950, from
the representative of the United
Kingdom of Great Britain and
Northern Ireland to the Secretary-
General of the United Nations (with
annex)

A/985/Rev. 1

A/990/Rev. 1

41
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES)

Letter dated 17 February, 1950, from
the representative of United States
of America to the Secretary-General
of the United Nations (with annexes)

Letter dated 20 February, 1950, from
the representative of the United
Kingdom of Great-Britain and
Northern Ireland to the Secretary-
General of the United Nations (with
annex)

Letter dated 29 April, 1950, from the
representative of Canada to the
Secretary-General of the United
Nations (with annexes)

Letter dated 28 April, 1950, from the
representative of the United King-
dom of Great-Britain and Northern
Ireland to the Secretary-General of
the United Nations (witfi annexes)

Letter dated 28 April, 1950, from the
representative of the United States
of America to the Secretary-General
of the United Nations (with annexes)

III. RECORDS OF GENERAL ASSEMBLY, FOURTH SESSION

Folder 8.

Inclusion of item in agenda.
Records of proceedings.

Records of the General Committee, 65th

meeting

Records of the General Assembly, 224th

plenary meeting

259

[See pages 3 and 4,
paragraphs 71-73,
and page 7,
paragraphs 104

[See pages 18 and 19,
paragraphs 2-10,

and page 23,

after paragraph 56.)

42
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREATIES) 260

Folder 9.

Inclusion of ttem in agenda.
Documents.

Supplementary list of items for the
agenda of the fourth regular session ;
items proposed by Australia A/948

Adoption of the agenda of the fourth
regular session and allocation of items
to Committees ; report of the General
Committee A/989
[See paragraphs 9-12.)

Folder 10.

Ad hoc Political Committee.

Records of proceedings.

7th meeting.
8th meeting.
oth meeting.
roth meeting.
1ith meeting.
rzth meeting.
13th meeting.
14th meeting.
15th meeting.

Folder 11.

Ad hoc Political Committee.

Documents.

Letter dated 26 September, 1949, from
the President of the General Assembly
to the Chairman of the Ad hoc Polit-

ical Committee A/AC.31/2
Bolivia, Canada and the United States
of America: draft resolution A/AC.31/L.1/Rev. 1

43
OPIN. OF 18 VII 50 (INTERPRETATION OF PEACE TREARIES) 261

Australia: amendment to the draft
resolution proposed by Bolivia, Ca-
nada and the United States of America
(A/AC.31/L.1/Rev. 1) AJAC.31/L.2

Brazil, Lebanon and the Netherlands :
amendment to the draft resolution
proposed by Bolivia, Canada and the
United States of America
(A/AC.31/L.1/Rev. 1) A/AC.31/L.3

Telegram dated 7 October, 1949, from
the Government of the People’s Re-
public of Romania to the Secretary-

General AJAC.31/L.4
Report of the Ad hoc Political Com-
mittee A/1023
Folder x2.

Plenary meetings of the General Assembly.

Records of proceedings.

234th meeting.
235th meeting.

Folder 13.

Plenary meetings of the General Assembly.
Documenis.
Resolution adopted by the General
Assembly, 22 October, 1949.

{Note—See Folder rz for:
Report of the Ad hoc Political Committee A/I023.]

44