COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

CERTAINES QUESTIONS DE PROCEDURE
RELATIVES A L’INTERPRETATION DES
TRAITES DE PAIX CONCLUS
AVEC LA BULGARIE, LA HONGRIE
ET LA ROUMANIE

ORDONNANCE DU 7 NOVEMBRE 1949

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CERTAIN PROCEDURAL QUESTIONS
RELATING TO THE INTERPRETATION
OF PEACE TREATIES WITH BULGARIA,

HUNGARY AND ROMANIA

ORDER OF NOVEMBER 7th, 1949
La présente ordonnance doit être citée comme suit :

« Interprétation des Traités de parx,
Ordonnance du 7 novembre 1949: ‘
C. I. J. Recueil 1949, p. 229.»

This Order should be cited as follows :

“Interpretation of Peace Treaties, Order of November 7th, 1949 :
I. C. J. Reports 1949, p. 229.”

No de vente:
Sales number 24

229
COUR INTERNATIONALE DE JUSTICE
1949 ANNEE
.@ 7 novembre I
Rôle générai 949
n° 8

Ordonnance rendue le 7 novembre 1949.

CERTAINES QUESTIONS DE PROCÉDURE
RELATIVES A L'INTERPRÉTATION DES
TRAITÉS DE PAIX CONCLUS
AVEC LA BULGARIE, LA HONGRIE
ET LA ROUMANIE

Le Président en exercice de la Cour internationale de Justice,
Vu les articles 48, 63, 66 et 68 du Statut,
Vu l'article 37 du Règlement,

Rend l'ordonnance suivante :

Considérant qu’à la date du 22 octobre 1949, l’Assemblée générale
des Nations Unies a adopté une Résolution aux termes de laquelle
elle demande à la Cour un avis consultatif sur les questions sui-
vantes :

« I. Ressort-il de la correspondance diplomatique échangée
entre la Bulgarie, la Hongrie et la Roumanie, d’une
part, et certaines Puissances alliées et associées signa-
taires des Traités de paix, d’autre part, touchant
l'application de l’article 2 des Traités avec la Bulgarie
et la Hongrie et de l’article 3 du Traité avec la Rou-
manie, qu’il existe des différends pour lesquels l’arti-
cle 36 du Traité de paix avec la Bulgarie, l’article 40 du
Traité de paix avec la Hongrie et l’article 38 du Traité
de paix avec la Roumanie prévoient une procédure
de règlement ? »

Si la réponse à la question I est affirmative :

« II. Les Gouvernements de la Bulgarie, de la Hongrie et
de la Roumanie sont-ils tenus d'exécuter les clauses
230 ORDONN. DU 7 XI 49 (INTERPRÉTATION TRAITÉS DE PAIX)

des articles mentionnés à la question I, notamment
celles qui concernent la désignation de leurs repré-
sentants aux commissions prévues par les Traités ? »

Si la réponse à la question II est affirmative, et si, dans les
trente jours de la date où la Cour aura rendu son avis, les
Gouvernements intéressés n’ont pas fait connaître au Secré-
taire général qu’ils ont désigné leurs représentants aux
commissions prévues par les Traités, et si le Secrétaire
général en a informé la Cour internationale de Justice:

«III. Le Secrétaire général des Nations Unies est-il autorisé,
si l’une des parties ne désigne pas de représentant à
une commission prévue par les Traités de paix avec
la Bulgarie, la Hongrie et la Roumanie, alors qu’elle
est tenue d’en désigner un, à désigner le tiers membre
de la commission sur la demande de l’autre partie
au différend, conformément aux dispositions des
Traités en cause ? »

Si la réponse à la question III est affirmative :

« IV. Une commission prévue par les Traités qui serait compo-
sée d’un représentant de l’une des parties et d'un
tiers membre désigné par le Secrétaire général des
Nations Unies serait-elle considérée comme com-
mission au sens des articles pertinents des Traités
et qualifiée pour prendre des décisions définitives et
obligatoires dans le règlement d’un différend ? »

Considérant que la copie certifiée conforme des textes français
et anglais de la Résolution de l’Assemblée générale a été transmise
à la Cour par une lettre datée du 31 octobre 1949 et signée du
Secrétaire général des Nations Unies ;

Considérant qu’à la date du 7 novembre 1949, le Greffier a notifié
la requête, conformément à l’article 66, paragraphe I, du Statut,
à tous les États admis à ester en justice devant la Cour ;

Considérant qu’à la même date le Greffier, conformément à
l’article 66, paragraphe 2, du Statut, a fait connaître à tous les
États admis à ester en justice devant la Cour et signataires des
traités de paix précités ainsi que, en. application des articles 63,
paragraphe 1, et 68 du Statut, aux autres États signataires desdits

Traités que la Cour était disposée à recevoir d’eux des exposés
écrits :
231 ORDONN. DU 7 XI 49 (INTERPRÉTATION TRAITÉS DE PAIX)

1. Décide de fixer au lundi 16 janvier 1950 l'expiration du délai
dans lequel pourraient être déposés lesdits exposés écrits.

2. 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 sept novembre mil neuf cent
quarante-neuf.

Le Président en exercice,
(Signé) J. G. GUERRERO.

Le Greffier de la Cour,
(Signé) E. HaMBRO.


190

DISSENTING OPINION OF JUDGE MOROZOV

1. I voted against the Advisory Opinion because in substance it is an
attempt to involve the Court to a greater or less extent in the handling of
the serious political conflict existing in the Middle East between a number
of States, and particularly States Members of the World Health Organi-
zation, relating to the question of the transfer of its Regional Office
for the Eastern Mediterranean from the territory of Egypt for political
reasons.

On the other hand, even if we take into account the viewpoint of those
who consider that the WHO request relates to a purely legal question (a
viewpoint I do not share), the Advisory Opinion is a clear and inappro-
priate intervention in the question of the implementation of any possible
decision to make such a transfer, which is incompatible with the fact that
all aspects of that question, including the conditions and modalities of a
transfer, belong, in accordance with the WHO Constitution, to the exclu-
sive internal competence of the Organization itself. Accordingly I could
not accept the pretext on which the Advisory Opinion is based, that the
Court allegedly should give that Opinion because the request was submit-
ted to it by the WHO with reference to Article 65 of the Statute.

2. Exceptional care is taken in the Advisory Opinion to avoid any
reference to the root of the political conflict between the member States of
the WHO, which is revealed in the course of the discussions in the World
Health Assembly and in the documents presented to the Court in accor-
dance with Article 66, paragraph 2, of its Statute. Reference to these will
immediately show that the political conflict among the States members of
the WHO does not only relate to the political dispute in the framework of
the WHO, but is a part of a political dispute between States which has an
extensive character. In this connection I would refer in particular to the
passage in the Written Statement made to the Court by the Government of
the Syrian Arab Republic in which that conflict is correctly characterized
as follows :

“The cause of the increasingly tense and troubled situation obtain-
ing in the Eastern Mediterranean Region, which has made it necessary
to transfer the Regional Office, lies in the agreements signed at Camp
David in the United States of America on 27 September 1978. These
agreements have prevented the region from achieving the compre-
hensive and true peace, called for by the Arab States and now finally
recognized by the whole international community (see, for example,
resolution No. 7/2 of 29 July 1980, Seventh Special Session of the
United Nations General Assembly).”

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191 INTERPRETATION OF AGREEMENT (DISS. OP. MOROZOV)

It should be recalled that the proposal for the transfer of the Eastern
Mediterranean Regional Office was adopted by the votes of 19 States of
the region concerned, the only vote against being that of Egypt.

3. The character of the political conflict existing between member
States of the WHO, which is in particular the background to the political
confrontation within the WHO, is of great importance in connection with
the correct answer to the question of whether or not the Court should give
an advisory opinion in the current case, taking into account Article 65,
paragraph |, of its Statute, which provides that :

“The Court may give advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with
the Charter of the United Nations to make such a request.” (Emphasis
added.)

Thus the Court has a discretionary right to give or not to give an advisory
opinion even if the question is a legal one and presented by a duly
authorized body.

In the situation of the present case the Court was not obliged to accept
the request and to give an advisory opinion upon it.

The Statute of the Court conferred upon it freedom of choice, as men-
tioned above, to give an opinion or to refrain, specially for the purpose of
avoiding the embarrassing situation with respect to the exercise of its
judicial functions which would arise if, under the pretext of giving an
advisory opinion, the Court were to be involved to a greater or less extent in
the handling of a dispute between States which has a definite political
character.

4. There are a number of points I would like to emphasize in connection
with paragraph 33 of the Advisory Opinion, in which we may find the
reasoning in the current case relating to the jurisprudence of the Court.

First, the Court recognizes that the situation in the present case is one “in
which political considerations are prominent ...”. In this connection it
endeavours to justify its incorrect approach inter alia on the ground
that

“it may be particularly necessary for an international organization to
obtain an advisory opinion from the Court as to the legal principles
applicable with respect to the matter under debate, especially when
these may include the interpretation of its constitution”.

__ Itshould however be stressed that the WHO’s request did not ask for any
interpretation of the WHO Constitution, and was limited to a reference
solely to interpretation of Section 37 of the 1951 Agreement. This formula,
therefore, as well as the preceding sentence in the Advisory Opinion, which
reads

“that jurisprudence establishes that if, as in the present case, a ques-
tion submitted in a request is one that otherwise falls within the

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192 INTERPRETATION OF AGREEMENT (DISS. OP. MOROZOV)

normal exercise of its judicial process, the Court has not to deal with
the motives which may have inspired the request”

should be considered as an additional justification of the alleged existence
of the right, claimed by the Court in the present case, not to reply to the
request submitted and instead reply to a question drafted by itself.

Secondly, reference is also made in justification of the disregard of the
purely political character of the present case, to the cases concerning
Conditions of Admission of States to Membership in the United Nations
(1948), Competence of the General Assembly for the Admission of a State to
the United Nations (1950) and Certain Expenses of the United Nations
(1962).

It is regrettable that this unconvincing argument should now be ad-
vanced as justification for interference by the Court in political disputes
between States, namely the incorrect approach to advisory proceedings
demonstrated by the Court in the past in those three cases. I have no wish
to re-open consideration of the substance of the advisory opinions men-
tioned above, but would merely stress that it was pointed out at the time
that the Court should not have accepted those requests for advisory
opinion, which related exclusively to political disputes between member
States of the United Nations. The attempt to resurrect this same incorrect
approach after 30 years is unacceptable.

Thirdly, it is however not without interest for the current case to observe
that in each of these three cases the Court did finally give a reply to the
request for opinion in the form in which it was submitted.

5. In the World Health Assembly only 53 delegations voted in favour of
the request, 46 against, and there were 20 abstentions. Those who opposed
the United States suggestion for involving the Court in the matter stated
that they considered the request as a political manoeuvre with the purpose
of delaying by any means settlement of the transfer of the Office, at least for
two or three years. They demonstrated that the text of Section 37 of the
Agreement of 1951 between the WHO and Egypt on the question of the
privileges, immunities and facilities to be granted to the WHO as a whole,
and particularly to its Eastern Mediterranean Office, is so clear that there
is no need for any interpretation, and that the Agreement could not be
applicable to the possible decision to transfer the Office.

Their opponents objected and stated that Section 37 of the Agreement
should be applicable in the above-mentioned case.

6. The outcome is very well known. The request was submitted to the
Court in the following terms :

“1. Are the negotiation and notice provisions of Section 37 of the
Agreement of 25 March 1951 between the World Health Organiza-
tion and Egypt applicable in the event that either party to the Agree-
ment wishes to have the Regional Office transferred from the territory
of Egypt?

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193 INTERPRETATION OF AGREEMENT (DISS. OP. MOROZOV)

2. If so, what would be the legal responsibilities of both the World
Health Organization and Egypt, with regard to the Regional Office in
Alexandria, during the two-year period between notice and termina-
tion of the Agreement?”

7. It is in vain that one may try to find in the Advisory Opinion a
positive answer to Question 1, and it goes without saying that only after a
positive answer to that question would it be logical to attempt to answer
Question 2. Instead of replying to Question 1, the Advisory Opinion con-
fines itself to a description of the existing differences of interpretation, and
to the statement in paragraph 42 that :

“Whatever view may be held on the question whether the provisions of
Section 37 are applicable to the case of a transfer of the Office from
Egypt, the fact remains that certain legal principles and rules are
applicable in the case of such a transfer.” (Emphasis added.)

The last part of this sentence “... the fact remains that certain legal
principles and rules are applicable in the case of such a transfer”, even if it
is combined with paragraphs 49, 50 and 51, does not mean that the Court
gives an affirmative answer to Question 1 of the request. Paragraph 42 of
the Advisory Opinion even criticizes severely the text of the original
request. It is there said that “. . . the emphasis placed on Section 37 in the
questions posed in the request distorts in some measure the general legal
framework in which the true legal issues before the Court have to be
resolved”.

8. What legal miracle has happened in the course of the drafting of the
greater part of the Advisory Opinion? Why is it that, while avoiding giving
an affirmative answer to the question of applicability of Section 37 of the
1951 Agreement, the Advisory Opinion at the same time has in a very
detailed way itself established the above-mentioned “legal principles and
rules”?

This happened because the request which was really submitted to the
Court by the WHO was put aside, and replaced by a new text of the request
in the following terms :

“Under what conditions and in accordance with what modalities a
transfer of the Regional Office from Egypt may be effected ?”

But this question, as I have said, was not submitted by the WHO; it
emerged as a result of very detailed research into numerous circumstances
which are not related either to the Agreement of 25 March 1951 or to the
legal provisions regulating the relationship between the WHO and Egypt
in connection with the activities of the Eastern Mediterranean Regional
Office. I consider that all this should be qualified as an attempt to give a
legal appearance to an artificial basis on which paragraphs 48 and 49 of the
Advisory Opinion, as well as the whole of the operative clause, were
grounded.

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194 INTERPRETATION OF AGREEMENT (DISS. OP. MOROZOV)

Furthermore, the statement that the Court “decides to comply with the
request for advisory opinion”, in the first paragraph of the operative part,
as well as the reference to “the event specified in the request” in paragraph
2 of the operative part, does not change the substance of the situation. In
reality what the Court is doing is to “comply with” its own drafting of the
request.

9. I would like to spare the reader of my dissenting opinion any
exhaustive analysis of all the arguments used in the Advisory Opinion for
justification of such a more than unusual exercise of the judicial compe-
tence of the Court to give an advisory opinion. J therefore limit myself to a
few remarks.

10. The clear substitution in the Advisory Opinion of a new question for
the question put in the request was also explained by the wish of the Court
“to remain faithful to the requirements of its judicial character in the
exercise of its advisory jurisdiction”, for which reason, it is said, “it must
ascertain what are the legal questions really in issue in questions formu-
lated in a request”. The Advisory Opinion continues :

“a reply to questions of the kind posed in the present request may, if
incomplete be not only ineffectual but actually misleading as to the
legal rules applicable to the matter under consideration by the
requesting Organization” (para. 35).

By way of justification of the substitution of one question for another,
reference is made to the cases of Admissibility of Hearings of Petitioners by
the Committee on South West Africa, I.C.J. Reports 1956, and Certain
Expenses of the United Nations, I.C.J. Reports 1962.

I do not wish, as I have said, to re-open the substance of the Advisory
Opinion on the question of Certain Expenses of the United Nations (against
which five Judges voted). I would merely say that I consider that that
Opinion included some element of twisting of the facts and the law.
However, for the purpose of my dissenting opinion in the current case I
should repeat once more that in the above-mentioned case as well as the
case of Admissibility of Hearings of Petitioners by the Committee on South
West Africa the Court, after all the analysis it made in elaborating its
Advisory Opinion did ultimately give its answers to the requests as they
were submitted, without an attempt to replace the questions put in those
requests with its own text.

11. Reference is made to two advisory opinions delivered by the Per-
manent Court of International Justice, of the League of Nations, in the
years 1923 and 1928. This was done with the same purpose, that of
justifying replacement of the request submitted to the Court by its own text
of the question. We read in paragraph 35 that the Court has

“in some cases first to ascertain what were the legal questions really in
issue in the questions posed in the request”.

But in reality this sentence should be considered in the context of those

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195 INTERPRETATION OF AGREEMENT (DISS. OP. MOROZOV)

advisory opinions of 1923 and 1928. The former Court in those cases gave
its answer, and did not put the texts of the requests aside as the present
Court has done. It is hardly necessary to add that the substance of the
matter on each of these two cases does not give any grounds for any
analogy.

Also from the point of view of language, the expression “to ascer-
tain... .”, used in the Advisory Opinion, does not mean the same as to
“change” or “replace” one question by another or to disregard the question
as itis. Of course there could not be any objection to the normal method of
thinking about, and taking into consideration, all facts related to the
question put in the request for opinion ; but what has happened in the
current case is something which ultimately suggests an intention by any
means to avoid answering Question 1 in the request submitted by the
WHO.

12. By way of justification for its substitution of a new question for
those put in the request of the WHO, and the elaboration of what are
referred to as certain “legal principles or rules”, the Advisory Opinion
includes particularly a detailed analysis of the activity of the Egyptian
Alexandria Sanitary Bureau, which has no relation to the provisions of the
1951 Agreement, or to the question of possible transfer of the Office.

It could not be used as evidence that establishment of the Regional
Office was, as is alleged, based not only on Article 44 of the Constitution of
the WHO but also on Article 54 of that Constitution.

With the same purpose in view, the Advisory Opinion also includes an
analysis of the activity of the United Nations and the various specialized
agencies, and an attempt to elaborate some common general principles and
rules of contemporary international law concerning the establishment of
offices of these organizations, and the conditions and modalities to be
observed in the case of transfers of offices of international organizations in
general. All such research should be considered as having no relationship
to Question 1 of the request of the WHO, even if one is ready to consider
that question, in the form in which it was submitted, as a legal one.

13. It is necessary to add that from the very outset Question 1 in the
WHO request was based (whether deliberately or not makes no difference)
on an incorrect presumption. The question is worded as follows :

“Are the negotiation and notice provisions of Section 37 of the
Agreement of 25 March 1951 between the World Health Organiza-
tion and Egypt applicable in the event that either party to the Agree-
ment wishes to have the Regional Office transferred from the territory
of Egypt?”

The request was expressed in such specific terms as to incorporate an
erroneous presumption, related to an intention to obtain from the Court
only a positive answer, and at the same time to give a broad hint on the
substance of the matter as to what that positive answer should be.

The error is that the WHO and Egypt in the text of the question were put

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196 INTERPRETATION OF AGREEMENT (DISS, OP. MOROZOV)

on the same legal footing, and the same legal rights attributed to them. But
the WHO has, in accordance with its Constitution (Art. 44), the right to
take the decision on the question of the establishment of its Regional
Office or its transfer. The rights of Egypt on the question of location are
limited to one vote along with the other States Members of the WHO, as
well as one vote in the course of the discussion of any question related to
the transfer of the Office.

The special procedure provided by Section 37 of the 1951 Agreement
relates only to the question of revision of the character and scope of
privileges, immunities and facilities granted by Egypt to the WHO and its
Regional Office.

This is so clear that it is virtually recognized in the Advisory Opinion,
when we find in it not an answer to Question 1, but to the question
elaborated in the Advisory Opinion itself. It would be logical to put a full
stop in the Advisory Opinion at this point, because the negative answer to
Question 1 of the request excuses the Court from answering Ques-
tion 2.

14. But instead of that, Question 2 in the Advisory Opinion followed the
fate of Question |, and in its turn was redrafted on the same lines, so as to
permit the Court, contrary to the Agreement of 1951, to intervene by its
advice in the purely administrative activity of the WHO in the event of the
Organization deciding to transfer its Regional Office from the territory of
Egypt.

15. It is important to stress that the key paragraphs of the Advisory
Opinion (49 and 51) provide certain recommendations to the WHO
dominated by the idea of the allegedly equal legal rights of the Organization
and Egypt, at least as to the question of the conditions and modalities in
accordance with which a transfer of the Regional Office from Egypt may
be effected. But the same dominating idea of equal legal rights was also
expressed, of course with a wider meaning, in the draft resolution sub-
mitted by the United States to the World Health Assembly and adopted by
the votes of less than half the member States.

The whole collection of very detailed recommendations given in the
Advisory Opinion to the WHO does not coincide with the Constitution of
the WHO, which provides for an exclusive right of the Organization to take
the decision relating to the establishment of its Regional Offices, and
consequently to their transfer, including all steps for the implementation
of the decision concerned. These recommendations do not afford an
answer to the request of WHO as it is, and go beyond its framework ; they
are an attempt first to establish some legal principles and rules for the
activity of international organizations on certain specific occasions, which
these organizations could and should decide without any interference in
their exclusive competence in accordance with their constitutional instru-
ments, and secondly to use them ex post facto for the question of the
conditions and modalities of transfer of the Eastern Mediterranean
Regional Office from the territory of Egypt.

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197 INTERPRETATION OF AGREEMENT (DISS. OP, MOROZOV)

16. As a matter of principle, the approach to advisory proceedings
used in the present Advisory Opinion, when first the Court unavoidably
becomes involved to a greater or less extent in the handling of a political
dispute between States under the pretext of the request for advisory
opinion, and secondly the Court arbitrarily replaces the request submitted
toit with a text of its own, is incompatible with the judicial functions of the
Court as defined in Chapter IV of its Statute.

(Signed) Platon Morozov.

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