PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SÉRIE B — N° 16
Le 28 août 1928

RECUEIL DES AVIS CONSULTATIES

INTERPRETATION
DE L'ACCORD GRECO-TURC

DU ize DÉCEMBRE 1926
(PROTOCOLE FINAL, ARTICLE IV)

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B.—No. 16
August 28th, 1928

COLLECTION OF ADVISORY OPINIONS

INTERPRETATION
OF THE GRECO-TURKISH AGREEMENT |

OF DECEMBER Ist, 1926.
(FINAL PROTOCOL, ARTICLE IV)

LEYDE
SOCIETE D’EDITIONS
A. W. SIJTHOFF
1928

LEYDEN
A. W. SIJTHOFF’S
PUBLISHING COMPANY
1928

PERMANENT COURT OF INTERNATIONAL JUSTICE

FOURTEENTH SESSION (ORDINARY)

Present :

MM. ANZILOTTI, President,
HUBER, Former President,
Lord FINLay,
MM. LODER,
NYHOLM,
DE BUSTAMANTE, > Judges,
ALTAMIRA, ;
ODA, .
PEssôa,
BEICHMANN, Deputy-Judge.

ADVISORY OPINION No. 16.

INTERPRETATION OF THE. .GRECO-.TURKISH AGREEMENT
OF DECEMBER rst, 1926

(FINAL PROTOCOL, ARTICLE IV).

On February 4th, 1928, the President of the Mixed Commis-
sion for the Exchange of Greek and Turkish Populations sent
.to the Secretary-General of the League of Nations a letter to
the following effect t:

“Jn letters dated February 17th, 1927, the Presidents of the
Turkish and Greek delegations communicated to the Mixed
Commission the text of an agreement concluded on Decem-
ber ist, 1926, between Turkey and Greece for the purpose, as
expressed in the Preamble, of ‘facilitating the application of
‘certain provisions of the Treaty of Peace of Lausanne and of
‘Declaration IX annexed thereto’.

1 Translation by the Secretariat of the League of Nations.

1928.
August 28th,
File F. c. XVHI.

Docket XIV: 2.
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 5

Under Article 14 of this Agreement, the application of these
provisions was entrusted to the Mixed Commission, which, by
a decision reached on March roth, 1927, accepted this duty.

To the Athens Agreement there is annexed a ‘Final Proto-
col’ bearing the same date, and containing the following clause:

Article IV.—‘Any questions of principle of importance
which may arise in the Mixed Commission in connection
with the new duties entrusted to it by the Agreement
signed this day and which, when that Agreement was
concluded, it was not already discharging in virtue of
previous instruments defining its powers, shall be submitted
to the President of the Greco-Turkish Arbitral Tribunal
sitting at Constantinople for arbitration. The arbitrator’s
awards shall be binding.’

As this clause has given rise to differences of interpretation
regarding the conditions for appeals to the arbitrator, the
Mixed Commission accepted the suggestions put forward in the
report submitted by Viscount Ishii to the Council of the Lea-
gue of Nations and adopted by the latter on October 31st, 1924,
and decided, at its meetings on December 22nd, 1927, and
January 26th, 1928, to apply to. the Permanent Court of
International Justice at The Hague, through the agency of the
League of Nations, for an advisory opinion as to the inter-
pretation of the article in question so far as it concerns the
conditions for appeals to the arbitrator.

I have the honour to inform you of the foregoing, and
should be greatly obliged if you would place this dispute
before the Court by whatever procedure you think proper.

I am sending at the same time the minutes of the meeting
of March igth, 1927, containing the text of the Agreement
and its annexes, together with copies of the minutes of the
meetings at which the question was debated and the various
opinions expressed. The Mixed Commission will have pleasure
in furnishing the Court with any information it may ,require.”

On June 5th, 1928, the Council of the League of Nations
adopted the following Resolution :

“Referring to the letter addressed to the Secretary-
General of the League of Nations on February 4th, 1928,
by the President of the Mixed Commission for the Ex-
change of Greek and Turkish Populations,

The Council of the League of Nations requests the
- Permanent Court of International Justice to give an
advisory opinion upon the question raised in the said
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 6

letter as to the interpretation of Article IV of the Final
Protocol of the Greco-Turkish Agreement of December rst,
1926, in regard to the conditions of reference to the
arbitrator contemplated .by that article.

The article is as follows:

‘Les questions de principe présentant quelque
importance et qui pourraient surgir au sein de la
Commission mixte à l’occasion des attributions nou-
velles que lui confère l’Accord signé ce jour et qu’elle
n'avait pas à la conclusion de ce dernier sur la - base
.des actes antérieurs fixant sa compétence, seront
soumises à l'arbitrage du président du Tribunal
arbitral gréco-turc, siégeant à (Constantinople. Les
sentences de l'arbitre seront obligatoires.’

The Council invites the Hellenic and Turkish Govern-
ments and the Mixed Commission to be at the disposal
of the Court for the purpose of furnishing it with any
necessary documents and explanations.

- The Secretary-General is authorized to submit the
present request to the Court, together with all the
relevant documents, to explain to the Court the action
taken by the Council in the matter, to give any assist-
ance required in the examination of the case, and, if
desirable, to take measures to be represented before the
Court.” |

In pursuance of this Resolution, the Secretary-General of the
League of Nations, on June 7th, 1928, submitted to the Court
a Request for an advisory opinion in the following terms:

“The Secretary-General of the League of Nations,

in pursuance of the Council Resolution of June 5th, 1928,
and in virtue of the authorization given by the Council,

has the honour to submit to the Permanent Court of
International Justice an application requesting the Court,
in accordance with Article 14 of the Covenant, to give an
advisory opinion to the Council on the question which
is referred to the Court by the Resolution of June 5th,
1928.

"The Secretary-General will be prepared to furnish any
assistance which the Court may require in the examina-
tion of this matter, and will, if necessary, arrange to be
represented before the Court.”

In conformity with Article 73, paragraph 1, of the Rules of
Court, the Request was communicated to Members of the
League of Nations and to States entitled to appear before the
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 7

Court. The Registrar further sent to the Governments of the
Greek and- Turkish Republics, which were regarded by the
Court as likely—in accordance with the terms of Article 73,
paragraph 2, of the Rules—to be able to furnish information
on the question upon which the Court’s opinion was asked, a
special and direct communication informing them that the
Court was prepared to receive from them written statements
and, if necessary, to hear oral statements made on their behalf
at a public hearing to be held for the purpose. Lastly, the
Registrar requested: the Secretary-General of the League of
Nations to give notice to the Mixed Commission for the
Exchange of Greek and Turkish Populations of the Request for
an advisory opinion filed with the Court. The Mixed Com-
mission was also to be informed of the fact that the Govern-
ments of the Greek and Turkish Republics had been notified
that the Court was prepared to receive from them written
statements in regard to this Request.

By means of an Order made on June 12th, 1928, the Pre-
sident of the Court fixed July roth, 1928, as the date by which
the written statements of the Greek and Turkish Governments
were to be filed with the Registry of the Court. On that
date, the two Governments had in fact deposited their written
statements with the Registry.

The Mixed Commission for the Exchange of Greek and
Turkish Populations informed the Registrar that it would be
represented before the Court by its President, if the Court
saw fit to hear its views; the Court, however, did not consider
it necessary to summon the Commission’s representative.

The Court, in the course of public sittings held on August
6th and 7th, 1928, heard oral arguments by M. D. Drossos,
Head of Department at the Greek Ministry for Foreign Affairs,
on behalf of the Government of the Greek Republic, and by
Djémal Husni Bey, President of the Turkish delegation to the
Mixed Commission for the Exchange of Greek and Turkish
Populations, on behalf of the Government of the Turkish Republic.

On this occasion the Court sat as normally composed. The
Court, in view of the fact that neither of the interested Gov-
ernments had a judge of its nationality upon the bench and
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 8

that the question constituted an existing dispute between two
States, under the terms of Article 71 of the Rules, had in fact
informed the Parties to this dispute, that is tosay, the Govern-
ments of Angora and Athens, of their right, under Article 31
of the Statute, each to appoint a judge of their nationality to
sit in the case; the two Governments, however, informed the
Court that they waived this right.

In addition to the statements of the said Governments, the
Court has had before it documents communicated by the
Secretary-General of the League of Nations (see list of docu-
ments in the annex).

The Court considers that it should in the first place outline
the circumstances in which the Council was led to submit to.
it the Request for an advisory opinion in question.

In accordance with the provisions of the Treaty of Peace of
Lausanne of July 24th, 1923, a mixed arbitral tribunal was
constituted between Greece and Turkey sitting at Constan-
tinople. The powers of this tribunal are defined more partic-
ularly in Article 65, and also in Articles 66, 70, 75, 77, 78, 81
and 89 of the Treaty of Lausanne. They include amongst other
things power to deal with all disputes relating to the identity
or the restitution of property, rights and interests which,
under the terms of the Treaty, are to be restored to those
concerned, as also with claims designed to obtain an addition
to the proceeds of liquidation in cases where the property,
rights and interests.in question have been liquidated.

Furthermore, the Convention for the Exchange of Greek
and Turkish Populations, signed at Lausanne on January 30th,
1923, established the Mixed Commission for the Exchange of
Greek and Turkish Populations, of which the duties and
powers should at this point be described.

According to Article 12 of this Convention, the Mixed
Commission’s duties were to be to supervise and facilitate the
OPINION No. IO.

GRECO-TURKISH AGREEMENT (19206) 9

emigration provided for in the Convention and to carry out
the liquidation of certain categories of movable and immovable
property. Paragraphs 3 to 5 of Article 12 define as follows
the powers vested in the Commission from the outset :

“In a general way the Mixed Commission shall have
full power to take the measures necessitated by the
execution of the present Convention and to decide all
questions to which this Convention may give rise.

The decisions of the Mixed Commission shall be taken
by a majority.

All disputes relating to property, rights and interests
which are to be liquidated shall be settled definitely by
the Commission.”

Under the Declaration (No. IX) relating to Moslem prop-
erties in Greece, signed at Lausanne on July 24th, 1923,
the Mixed Commission subsequently received certain further
powers.

Finally, the Greek Republic and the Turkish Republic
concluded at Athens on December ist, 1926, an Agreement the
object of which, as defined ir the Preamble, is to settle
difficulties which had arisen in regard to the application of
certain clauses of the Peace Treaty of Lausanne of July 24th,
1923, and of the Declaration (No. IX) relating to Moslem
properties in Greece, which was annexed to that Peace Treaty.
The Agreement provided for the bestowal of further new
powers upon the Mixed Commission for the Exchange of Greek
and Turkish Populations. These powers are defined more
especially in Articles 6, 7, 12 and 13 of the Agreement of
Athens; Article 14 of the Agreement lays down in a general
way in paragraph 1 that:

“La Commission mixte d’échange des populations grec-

ques et turques sera chargée de l’application du présent
Accord.”

[Translation by the Registry.]
“The Mixed Commission for the Exchange of Greek
and Turkish Populations shall be entrusted with the
application ef the present Agreement.”

The provisions of this Agreement were supplemented by a
Final Protocol which was signed at Athens the same day
OPINION No. I16.—GRECO-TURKISH AGREEMENT (1926) Io

and which forms an integral part of the Agreement itself.
Article IV of the Final Protocol, which article expressly refers
to the new powers of the Mixed Commission, is reproduced
in the Resolution of the Council of the League of Nations
set out above. | .

The Agreement of Athens and the Final Protocol were
ratified and came into force on March 6th, 1927.

By a decision taken at'its meeting of March 27th, 1927, the
Mixed Commission accepted the new mission entrusted to it,
under the terms both of the Agreement of Athens itself and
of the Final Protocol annexed thereto.

%
* #

The differences of interpretation regarding the conditions of
reference (‘‘conditions for appeals”) to the arbitrator provided
for in Article IV of the Final Protocol, mentioned in the
letter of February 4th, 1928 (reproduced above), from the
President of the Mixed Commission to the Secretary-General
of the League of Nations, became apparent more especially
at the full meeting held by the Commission on September
15th, 1927. The Greek and Turkish members of the Mixed
Commission having taken up different standpoints in regard
to the wording of the communications in which the Commis-
sion was to state the names of persons allowed to benefit by
the Agreement of Athens, the Greek members had, at a previous.
meeting, on June 27th, 1927, suggested that the dispute should
be settled by arbitration.

The President of the Mixed Commission asked the Commis-
sion first of all to decide whether, under the Final Protocol
annexed to the Agreement of Athens, the dispute which had
arisen constituted a question of principle of some importance
arising in connection with the new duties of the Commission ;
whereupon the Greek members expressed the opinion that
the two States which had signed the Agreement and Protocol
were alone entitled to appeal to the arbitrator, to whom, in
the case in. point,. the Greek Government had, moreover,
already referred the matter; on the other hand, the Turkish
members held that reference to the arbitrator without a.
decision of the Mixed Commission would be contrary to the
OPINION No. I16.—GRECO-TURKISH AGREEMENT (1926) II

agreements in force. The question of the conditions governing
the reference to arbitration provided for by Article IV of the
Final Protocol subsequently formed the subject of further
discussion at meetings held by the Commission on Deceniber
12th, 20th and 22nd, 1927. At the last of these meetings,
the Mixed Commission decided by a majority to ask the
Council of the League of Nations to request the Permanent
Court of International Justice for an advisory opinion. .

The terms of the’ questions to be submitted, through the
Council of the League of Nations, to the Court for advisory
opinion were considered more particularly at the meeting
held on December 22nd, 1927. On that occasion the Commis-
sion had before it, in the first place, a draft questionnaire
prepared by one of the neutral members of the Commission—
which was taken as the basis of subsequent discussions—and
in the second place a draft questionnaire submitted on behalf
of the Turkish members.

The Greek members, for their part, submitted some modifi-
cations of the questionnaire which was taken as a basis of
discussion, though at the same time they observed that they
would prefer to leave the Court free to deal with the problem
as it thought best, and accordingly to submit the dispute to
it in the simplest terms.

The President of the Mixed Commission stated, in regard
to this proposal by the Greek members, that he saw no
objection to simplifying the questionnaire, and he submitted
to the Commission a formula, the adoption of which, in a
slightly amended form, was proposed by the Greek members.

When making this proposal, they said that “the chief
question which arose was whether each of the States which
had signed the Agreement of Athens was entitled to exercise
the right of recourse provided for by that Agreement unilat-
erally and without any previous decision having been taken
by the Mixed Commission, or whether, on the contrary, it
rested with the Mixed Commission first of all to satisfy itself
whether the conditions for such a recourse, as laid down in
Article IV of the Final Protocol, were or were not fulfilled’.

In the course of the discussion, the Turkish members of
the Commission pointed out on their side that “the chief
question which arose was whether the right of recourse to the

2
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 12

arbitrator should be subordinated to a decision of the Mixed
Commission, or whether the right of recourse to the arbitrator .
belonged to each of the two delegations, Turkish and Greek
(i.e. to the members of the Mixed Commission) independently
of any previous decision by the Mixed Commission”.

The subsequent proceedings in the Commission showed that
there was a tendency to draw up the question for submission
to the Court in general terms and in a simplified form.

The Commission in fact thought that the minutes of its
meetings at which the question had been argued would
sufficiently indicate the doubts which had arisen within it
regarding the application of Article IV of the Final Protocol.
And the Commission finally decided accordingly.

The Mixed Commission having decided by a majority to
ask the Council of the League of Nations to request the Perm-
anent Court of International Justice for an advisory opinion,
the terms of the request to be addressed with this object to
the Secretary-General of the League of Nations were drawn
up on February ist, 1928.

Upon receiving the request of the Mixed Commission,
the Council decided at its meeting on March 5th, 1928, to
approach, before including the question upon its agenda, the
Governments of the Greek and Turkish Republics in order to
ascertain whether they were prepared to give their consent to
the submission of the question raised by the Mixed Commis-
sion to the Court for an advisory opinion.

In reply, the Greek Government, in a letter dated March 8th,
1928, stated that it consented to the proposed procedure ;
a similar reply was given by a letter dated May 5th, 1928, on
behalf of the Government of the Turkish Republic.

The Council’s Resolution of June 5th, 1928, asking the Court
to give an advisory opinion on the question raised in the let-
ter of the President of the Mixed Commission of February 4th,
1928, was adopted im the presence of the representatives of the
two Governments. .
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 13

*
* *

The representatives of the two Governments regarded as likely
to be able to furnish information on the question contemplated
by the Resolution of the Council of the League of Nations,
have expounded the submissions of their Governments in the
course of their ‘written and oral statements. The Court con-
siders it well to recall the tenor of these submissions.

In its written Memorial, the Turkish Government submitted
that :

“the right to resort to proceedings before the President of
the Greco-Turkish Mixed Arbitral Tribunal provided for in
Article IV of the Final Protocol of the said Agreement :

(1) may be exercised by the Mixed Commission as such,
that is to say that it has power to refer a question to the
single arbitrator, whilst leaving the conduct of the proceedings
to the interested Parties ;

{2) may not be exercised separately or jointly by the two
States signatories of the Agreement except after a vote by the
Mixed Commission establishing that the conditions laid down
by Article IV of the Final Protocol are fulfilled and declaring
itself incompetent to deal with the question which has arisen
within it, this decision finally settling the question of juris-
diction as between the two arbitral bodies and being
binding upon the President of the Greco-Turkish Arbitral
Tribunal.”

These submissions were confirmed in the oral statement of
the representative of the Turkish Government before the Court.

On the other hand, the submissions of the representative
of the Greek Government are, in his oral statement, sum-
marized as follows:

(x) that the Mixed Commission, as such, has no right to
refer a matter to the arbitrator, since the two contracting
Partiés have given it no such right under Article IV of the
Final Protocol of the Agreement of Athens which is purposely
silent on the subject. At the utmost, the Commission might,
perhaps, appear ;

(2) that neither has the Mixed Commission the right to
settle by a preliminary decision the question, should it arise,
of the jurisdiction or lack of jurisdiction of the arbitrator in
each particular case—a question which must be exclusively
OPINION NO. 16:—GRECO-TURKISH AGREEMENT (1926) 14

reserved to the arbitrator himself, according to the basic
principles of public international law ;

(3) that the two Parties have the right jointly to have
recourse to the arbitrator without such recourse being made
subject to a previous decision of the Mixed Commission to
the effect that the conditions laid down by Article IV of the
Final Protocol are fulfilled. If the two Parties do not succeed
in agreeing jointly to refer a matter to the arbitrator, either |
of them may do so unilaterally.

II.

Article 72, paragraph 2, of the Rules of Court, lays down
that “the request shall contain an exact statement of the
question upon which an opinion is required”. But the Request
transmitted to the Court in pursuance of the Resolution of
the Council of the League of Nations of June 5th, 1928,
simply refers to the letter addressed by the President of the
Mixed Commission for the Exchange of Greek and Turkish
Populations on February 4th, 1928, to the Secretary-General
of the League of Nations, with a view to obtaining an
advisory opinion from the Permanent Court of International
Justice upon the interpretation of Article IV of the Final
Protocol of the Greco-Turkish Agreement of December ist,
1926, concerning “‘the conditions for appeals to the arbitrator’’
contemplated in this article. The Court, however, considers
that, as the letter referred to does not exactly state the
question upon which its opinion is sought, it is essential that
it should determine what this question is and formulate an
exact statement of it, in order more particularly to avoid
dealing with points of law upon which it was not the inten-
tion of the Council or the Commission to obtain its opinion.
In the present case it is possible for the Court to do this,
owing to the relatively simple nature of the case; this,
however, may not always be so.

In ascertaining the form in which the question which the
Mixed Commission intended to put to the Court may best
be expressed, the Court observes in the first place that it
must regard the word ‘'vecours’” (appeals) contained in the
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 15

NS

expression ‘conditions du recours à l'arbitre” (conditions for
appeals to the arbitrator) as simply meaning “reference” or
“submission’’. For since the arbitrator is not in the position
of a superior court placed above the Mixed Commission, there
can be no question of an appeal (recours) in the strict sense
of the word. .

In the second place, the Court must observe that the
conditions for this reference or submission are clearly defined
by the actual terms of Article IV of the Final Protocol,
so that in regard to this point no difference of opinion can
be presumed to exist. According to this article, in order
that a question may be submitted for arbitration to the
President of the Greco-Turkish Mixed Arbitral Tribunal, it
is necessary (1) that it should have arisen within the Mixed
Commission ; (2) that it should have arisen in connection with
the new duties which were entrusted by the Agreement of Athens
to that Commission and which the latter, when that Agreement
was concluded, was not already discharging in virtue of
previous instruments defining its powers; (3) that it should
be a question of principle, and (4) that it should be of
importance. There is no doubt that only when these four
conditions are fulfilled can a matter be referred to the Pre-
sident of the Greco-Turkish Mixed Arbitral Tribunal.

After having carefully examined the documents attached
to the Request for an opinion, and the written and oral
statements submitted to it on behalf of the Greek and Turkish
Governments, the Court has arrived at the conclusion that
the differences of opinion which have resulted’ in the request
for an opinion relate not to the question what are the condi-
tions to which the submission of a question to the arbitrator
is subject, but to the question for whom it is to decide
whether these conditions are fulfilled and by whom a question
may be referred to him.

In view of this conclusion, and following the precedent
afforded by its Advisory Opinion No. 3 regarding one aspect of
the competence of the International Labour Organization in
which the Court had to alter the terms of the question put in
order to be able to reply thereto, the Court considers that
it may express the points on which, in substance, its opinion
is now required, as follows:
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 16

(x) Is it for the Mixed Commission for the Exchange
of Greek and Turkish Populations to decide whether the
conditions laid. down by Article IV of the Final Protocol
annexed to the Agreement concluded at Athens on December Ist,
1926, between the Greek and Turkish Governments, for
the submission of the questions contemplated by that article
- to the arbitration of the President of the Greco-Turkish
Mixed Arbitral Tribunal at Constantinople, are or are not
fulfilled ? or is it for the arbitrator contemplated by that
article to decide this?

(2) The conditions laid down by the said Article IV having
been fulfilled, to whom does the right of referring a question
to the arbitrator contemplated by the article belong ?

By expressing in this form the question contemplated by
the letter addressed on February 4th, 1928, by the President
of the Mixed Commission to the Secretary-General of the
League of Nations, the Court is in a position to reply to the
request for an opinion submitted to it, always keeping within
the scope of the question thus formulated. It follows that,
in so far as the points in dispute between the interested
Governments fall outside the scope of the question as set out
above, the Court cannot deal with them.

In order to reply to the question as above formulated, it
will be well first of all to examine the general structure of
the Mixed Commission, a body created more particularly in
order to ensure the carrying out of the Convention for the
Exchange of Greek and Turkish Populations concluded at
Lausanne on January 30th, 1923, between Greece and Turkey.

Under Article 11 of this Convention, the Mixed Commis-
sion consists of four members appointed by each of the two
contracting. States and of three members chosen by the
Council of the League of Nations from among nationals of
Powers which did not take part in the war of 1014-1918. In
this connection the Court considers that it shonld be noted
that the members of the Commission, including those appointed
by the contracting States, take part in the work of the
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 17

Commission in an individual capacity: there are eleven votes
to be reckoned with in the Mixed Commission. In the extracts
from the minutes of full meetings of the Commission concern-
ing recourse to arbitration, which have been submitted to
the Court in the course of the proceedings, the expressions
“Greek delegation” and “Turkish delegation” are to be found on
every page; and sometimes there are to be found expressions
such as “on behalf of the delegation” and “the delegation
acting on behalf of its Government”. All these expressions
proceed from a conception of the legal status of the members of
the Mixed Commission which finds no support in Article 11 of
the Convention concerning the exchange of populations, the
article which defines the organization of the Commission.
Failing such support, and having regard to Article 12, para-
graph 4, of the said Convention, according to which ‘“‘the
decisions of the Mixed Commission shall be taken by a majority’,
it would seem that all members, neutral members and Greek
and Turkish members alike, are independent and must vote
individually within the Commission. In the minutes are also to
be found traces of a conception closely harmonizing with this
interpretation of the terms of the article. For instance, it is
found that in a particular question, two Turkish members have
voted on opposite sides. However that may be, it was necessary
to elucidate this point at the outset, since it has perhaps in
some measure helped to give rise to the question now submitted
to the Court.

Turning now to the duties of the Mixed Commission which
are of especial importance for the solution of the question,
the Court makes the following observations :

1° Article 12 of the Convention, an article already quoted
above, lays down the general rule governing the duties
of the Commission: these comprise mainly the supervision
and facilitation of the emigration and the carrying out of
the liquidation of the movable and immovable property con-
templated by Articles g and 10 (paragraph 1). It follows
that the main functions of the Mixed Commission are essen-
tially administrative. In addition however to these functions,
the Commission has, first, power to settle the details of the
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 18

rules to be followéd in regard to emigration and liquidation
(paragraph 2) and, secondly, power finally to settle all disputes
relating to property, rights and interests to be liquidated
(paragraph 5); similarly, it has in a general way full power
to take the measures necessitated by the execution of the
Convention and to decide all questions to which it may give
rise (paragraph 3).

The first part of these subsidiary duties, namely, the
general measures which the Mixed Commission is authorized
to order, is in the nature of a regulating or legislative
function in the “material’’ sense of the word ; whereas the second
part of these duties undoubtedly constitutes a jurisdictional
or judicial function. |

All the duties indicated above are entrusted to the Mixed
Commission as the sole authority for dealing with the
exchange of populations, and special stress.should be laid on
the fact that these duties have been entrusted to it with
the object amongst others of facilitating this exchange. It
follows that any interpretation or measure capable of impeding
the work of the Commission in this domain must be regarded
as contrary to the spirit of the clauses providing for the
creation of this body. The Court has already adopted this
standpoint in its Advisory Opinion No. 10.

2° The declaration relating to Moslem properties in Greece
signed on July 24th, 1923, by the Greek delegates at the
Lausanne Conference (Declaration No. IX) also confers on
the Mixed Commission power to decide certain claims in
regard to the property rights of Moslem persons who are
not covered by the provisions of the Convention concerning
the exchange of populations signed at Lausanne on January
30th, 1923, and who had left Greece before October 18th,
1912, or had always resided outside Greece. The claims in
question were to be examined at once by the Commission
and settled within one year’s time at the most from the
coming into force of the said Treaty. The main importance of
this Declaration of July 24th, 1923, from the point of view
of the duties of the Commission with which this opinion
deals, is that it indicates how anxious the two Govern-
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 19

ments concerned were to facilitate the settlement of matters
and to accelerate the work of the Commission.

3° The Agreement of Athens of December ist, 1926, con-
cluded to regulate the disposal of certain categories of immov-
able property, entrusted to the Mixed Commission new
duties in this respect: for it conferred on the Commission
certain jurisdictional powers (Article 6, paragraph 3; Article 12,
paragraph 3; Article 13, paragraphs 1 and 3), as well as
general powers in regard to the application of the Agreement
(Article 14, paragraph 1). The questions contemplated by
‘Article IV of the Final Protocol annexed to the Agreement
relate to these new duties of the Commission. In regard to this,
attention should again be paid to the spirit of the Convention
the aim of which, according to the Preamble, is to overcome
difficulties in regard to the application of certain clauses of
the Peace Treaty of Lausanne and of Declaration No. IX
annexed thereto, and to facilitate the application of these
clauses. The terms of Article I of the Final Protocol should
also be noted; for that article, which provides for the coming
into force of some articles of the Agreement immediately
after its signature and before ratification, accentuates the
urgency attaching to the carrying out of the provisions of
the Agreement of Athens.

In the Court’s opinion,.the foregoing considerations clearly
indicate the spirit underlying the various international instru-
ments relating to the exchange of Greek and Turkish popula-
tions and defining the réle allotted to the Mixed Commission in
the carrying out of the terms of these instruments. The Court
considers that due importance must be attached to this spirit
in order to arrive at a correct interpretation of . Article IV
of the Final Protocol annexed to the Agreement of Athens.

For the purposes of this interpretation, it may be well once
more to give im extenso the terms. of that article:

“Les questions de principe présentant quelque impor-
tance et qui pourraient surgir au sein de la Commission

3
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 20

mixte à l’occasion des attributions nouvelles que lui
confère l'Accord signé ce jour et qu'elle n’avait pas à la
conclusion de ce dernier sur la base des actes antérieurs

x

fixant sa compétence, seront soumises 4 Varbitrage du
président du Tribunal arbitral gréco-turc, siégeant a
Constantinople. Les sentences de l'arbitre seront obli-
gatoires.”

[Translation by the Registry.]

“Any questions of principle of importance which may
arise in the Mixed Commission in connection with the
new duties entrusted to it by the Agreement signed
this day and which, when that Agreement was concluded,
‘It was not already discharging in virtue of previous
instruments defining its. powers, shall be submitted for
arbitration to the President of the Greco-Turkish Arbitral
Tribunal sitting at Constantinople. The arbitrator’s awards
shall be binding.”

In the eyes of the Court the meaning of this text is clear
although, no doubt, a more satisfactory formula might have
been found. Jt should, in particular, be noted that the
article contains no express provision designed to settle the
question by whom or when the questions with which the
instrument deals may be referred to the President of the
Greco-Turkish Mixed Arbitral Tribunal. But from the very
silence of the article on this point, it is possible and natural
to deduce that the power to refer a matter to the arbitrator
rests with the Mixed Commission when that body finds itself
confronted with questions of the nature indicated.

For, according to its very terms, Article IV of the Final
Protocol expressly contemplates questions which may arise
within the Mixed Commission ; there can, therefore, be no doubt
that only questions arising in the course of the deliberations
of the Commission are contemplated. But, that being so, it
is clear—having regard amongst other things to the principle
that, as a general rule, any body possessing jurisdictional
powers has the right in the first place itself to determine
the extent of its jurisdiction—that questions affecting the
extent of the jurisdiction of the Mixed Commission must be
settled by the Commission itself without action by any other
body being .necessary. |

Article IV of the Final Protocol lays down that in the case
of questions of principle of some importance arising in connection
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 21

with the new duties which were entrusted to. the Commission
by the Agreement of Athens, and which, when that Agree-
ment was concluded, it was not already discharging in virtue
_of previous instruments defining its powers, such questions
shall be submitted to the President of the Greco-Turkish
Mixed Arbitral Tribunal for decision, and are not, therefore,
to be settled by the Commission itself. Thus, Article IV of
the Final Protocol provides for the special reference of ques-
tions of principle of some importance to a tribunal other
than the Mixed Commission and one which is regarded as better
qualified than the latter to decide upon the merits of such
questions of principle. That is the whole import of Article IV,
and its scope is precisely this and no more.

According to the interpretation given above of Article IV
of the Final Protocol, the right of reference can, however,
only belong to the Mixed Commission; for it is a matter of
determining the extent of its own competence. It follows
logically that the Mixed Commission itself must also decide
whether the various conditions required to make such refer-
ence possible are fulfilled; and it is simply necessary to add
that, whatever the legal nature of these conditions may
be, their appreciation and the decision whether they are
duly fulfilled, both of which are left to the absolute discretion
of the Commission, undoubtedly fall within the category of
questions naturally arising in the course of the Commission’s
deliberations.

In this connection it should be observed that the question
whether a given matter is one of principle, and especially
whether it is of some importance, is essentially a question
of appreciation, and that it must therefore, in the nature of
things, be left to the decision of the Mixed Commission
itself, which, being acquainted with the many and various
matters coming before it, is alone in a position to say
whether a given question does or does not fulfil the
conditions mentioned in Article IV. This being so, if the
Commission, after having freely considered the matter, comes
to the conclusion that the question at issue is not of the
nature contemplated by Article IV of the Final Protocol, it
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 22

must itself decide that question; only if the Commission
considers that the requisite conditions for the reference of the
question to the arbitrator are present is it the duty of that
body to refer it to him. This would only not hold good if :
the article contained a provision imposing this duty, for
instance, on the States which signed the Final Protocol, on
the individual members of the Commission, or on a group of
such members, or a provision authorizing them to refer a
matter to the arbitrator. But no such provision is to be
found in the article.

The decision as to the presence of the conditions required
for the reference of a given question to the arbitrator must
be taken by the Mixed Commission, which must apply the
general rule governing the performance of its duties; if
consequently there exists between the members of the Com-
mission a difference of opinion as to whether these con-
ditions have or have not been fulfilled, the Commission
is to decide this point and the question whether it will refer
the matter to the President of the Greco-Turkish Mixed
Arbitral Tribunal, by a majority vote. As regards the arbi-
trator, once he is satisfied that a question submitted to him
has been referred to him by a decision of the Mixed Com-
mission, he must decide this question and he may not revert
to a consideration of the question of the presence of the
conditions required by Article IV of the Final Protocol. This -
appears from the actual terms of the article, which provides
for two clearly differentiated jurisdictions, one to decide
whether the conditions required for the reference to the
arbitrator of a question of principle of some importance are
or are not fulfilled, the other to give judgment on this
question of principle on its merits, once it has been estab-
lished that the required conditions aïe fulfilled: Accordingly,
the Court considers that a negative conflict of jurisdiction
cannot arise between the Mixed Commission and the arbitrator.

According to the terms of Article IV of the Final Protocol,
the questions of principle contemplated shall be submitted
to the President of the Greco-Turkish Mixed Arbitral Tribunal
“for arbitration’. The Court attributes no special importance
to the use of the word “arbitration” in the article, but
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 23

it considers it not a very happy way of expressing the
idea underlying the article. For in any event there can be
no question of an arbitration except in the broadest sense
of the expression, as the characteristics of arbitration properly
so called are certainly not present in this case. In the
first place, there are no Parties to bring their dispute before
the tribunal, seeing that, as has been explained above, the
Commission is composed of individual members and not of
two delegations representing the contracting States between
which the three neutral members must arbitrate ; the reference
to the arbitrator of questions of principle of importance which
arise within the Commission is not confined to the case where
there is a difference of opinion amongst the members of the
Commission; for though it is true that as a general rule the
reference of a question to the arbitrator will doubtless result
from such difference of opinion, it. is also true that such
reference may be decided upon, even if all members of the.
Commission are agreed as to the solution which, in their
opinion, should be given to the question of principle which
has arisen.

The Greek Government has sought to show that Article IV
of the Final Protocol constitutes an arbitration clause and
that such a clause inserted in an international convention
always implies an arbitral tribunal to which, unless expressly
provided otherwise, only States themselves may refer a matter
and before which they alone may appear as Parties. The
conclusion would be correct if the premiss were so; but the
Court cannot accept the Greek Government’s view in this
respect.. Not only have the terms used in Article IV nothing
. in common with those of arbitration clauses properly so called,
but also all that has been stated above in regard to the
conditions in which questions of the kind under consideration
may arise, and in regard to the fact that the duty of
applying the treaty provisions is reserved to the Mixed Com-
mission, is foreign to the nature of an arbitration between States
concerning disputes which may arise between them regarding
the manner in which each of them applies a treaty provision.
Except for the word “arbitration’’ to which, for the reasons
already given, no decisive importance is to be attached, there
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 24

is nothing in the text of Article IV which justifies its consi-
deration as an arbitration clause.

The Court has already indicated the spirit underlying all
the international instruments concerning the exchange of
Greek and Turkish populations, including the Final Protocol
of the Agreement of Athens of December ist, 1926 ; it now
observes that Article IV of this Protocol is undoubtedly itself
framed in the same spirit. It follows, in the opinion of the
Court, that the restriction placed by that article on the
general powers of the Mixed Comimission cannot constitute
an impediment to the fulfilment by the latter of the important
duties assigned to it, but must be construed in such a way
as to accelerate and facilitate the progress made by that body
with its work. Speed must be regarded as an essential factor
in the work of the Mixed Commission, both in the interest
of the populations with which its work is concerned and in
that of the Greek and Turkish Governments.

Now, as the Mixed Commission is mainly an administrative
body, its members are not necessarily in the first place jurists ;
although, as indicated above, it exercises a somewhat wide
measure of jurisdictional powers, it is not necessarily the most
suitable body for the settlement of legal questions of principle
of some importance. This is undoubtedly why the Final
Protocol deprives the Commission of power to decide such
questions and confers such power upon the President of the
Greco-Turkish Mixed Arbitral Tribunal. It is possible that the
Final Protocol was also inspired by the following consideration :
the Greco-Turkish Mixed Arbitral Tribunal being the tribunal
generally possessing jurisdiction in matters of liquidation, it
would be possible, by giving the President of that Tribunal
power to decide questions of principle of importance which
may arise within the Mixed Commission, to secure a measure
of consistency as between the decisions of the Mixed Com-
mission, which, as has been seen, is also competent to some
extent in matters of liquidation, and those of the Greco-
Turkish Mixed Arbitral Tribunal.
| OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 25

On the basis of the foregoing considerations, the Court
feels obliged to observe that it is wrong to seek to attribute
either to one of the members or to a group of Greek or
Turkish members of the Mixed Commission, or again to one
of the States signatories of the Final Protocol, the right
to refer a question to the arbitrator, with a view to obtaining
from him a decision, at all events as to whether a given
question is to be regarded as a question of principle of some
importance. Such a contention in fact is incompatible not
only with the terms of Article IV of the Final Protocol, but
also with the spirit which, as has been already pointed out,
underlies all the relevant international instruments.

Even leaving aside considerations based on the spirit of
these international instruments, the same result is arrived at,
for an individual member or a group among the Greek’ or
Turkish members within the Commission has no power to take
action outside the Commission, and the same applies as
regards the neutral members. This would still hold good even
if all the Greek or all the Turkish members of the Com-
mission could be regarded as constituting governmental delega-
tions within it, a conception which has however already been
rejected by the Court; for to accord to. individual members :
of an organization constituted as a corporate body any right
to take action of any kind outside the sphere of proceedings
within that organization, would be clearly contrary to an
accepted principle of law. In the absence of an express pro-
vision, therefore, it is impossible to accept such an abnormal
state of things. |

In this connection, another observation of some importance
should be made: the situation of the States signatory to the
Final Protocol is altogether singular as regards matters con-
cerning the exchange of Greek and Turkish populations ; this
singularity obviously arises from the special nature of the
Convention of Lausanne concerning the exchange of popula-
tions, as well as of Declaration No. IX of Lausanne and the
Agreement of Athens. For, according to the provisions of
these instruments, it does not rést with the contracting States
themselves to apply and carry out, each for its own part and
in the exercise of its sovereign rights, the clauses governing
OPINION No. I6.—GRECO-TURKISH AGREEMENT (1926) 26

the matter in question ; the application and carrying out of
these clauses are entrusted as a whole to the Mixed Commission
which acts in the interests of the two contracting States.
In so doing it is incumbent upon it to endeavour to ensure
that the application and carrying out shall be as speedy and
regular as possible. It is only within the Mixed Commission
that a difference of opinion can arise, between the members
of that body, as to the interpretation of the provisions of
the Convention and Agreement which it is its duty to apply
and carry out, a difference of opinion which, according to
the rules governing the work of the Commission, must be
settled by a majority of votes, neither of the contracting
States having the right to intervene as such in the work of
the Commission. But, the application of Article IV of the
Final Protocol of the Agreement of Athens is simply tant-
amount to the application by the Mixed Commission itself
of a provision governing its work.

If, on the contrary, the right to refer a question to the
arbitrator were to be attributed either to an individual member
or to a group amongst the Greek or Turkish members of
the Commission, or lastly to one of the States signatory to
the Final Protocol, it would follow that either of these States,
. either directly or through members of the Mixed Commission
of its nationality, could cause to be submitted to the procedure
contemplated in Article IV of the Final Protocol questions,
selected according to its wishes, such as, not being questions
of principle and not being of any importance, should neces-
sarily fall within the immediate jurisdiction of the Mixed
Commission. But the result of this would undoubtedly be, .
contrary to the spirit of all the relevant instruments and of
the Final Protocol itself, to impede the progress of the work.
of the Commission and to cause delays in the carrying out
of the task entrusted to it.
OPINION No. 16.—GRECO-TURKISH AGREEMENT (1926) 27

FOR THESE REASONS,

The Court, unanimously,

is of opinion

that to the question submitted to it as formulated at the

beginning of this advisory opinion, the following answer
should be given:

(x) It is for the Mixed Commission for the Exchange of
Greek and Turkish Populations alone to decide whether the
conditions enumerated in Article IV of the Final Protocol
annexed to the Agreement concluded at Athens on December rst,
1926, between the Greek and Turkish Governments, for the
submission of the questions contemplated by that article to the
President of the Greco-Turkish Mixed Arbitral Tribunal sitting
at Constantinople, for arbitration, are or are not fulfilled.

(2) The conditions contemplated by the said Article IV
having been fulfilled, the right to refer a question to the
arbitrator contemplated by that article belongs to the Mixed
Commission alone.

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this twenty-eighth
day of August, nineteen hundred and twenty-eight, in -two
copies, one of which is to be deposited in the archives of
the Court, and the other to be forwarded to the Council of
the League of Nations.

(Signed) D. ANZILOTTI,
President.

(Signed) À. HammarsxjOLp,
Registrar.


48

DISSENTING OPINION OF JUDGE AL-KHASAWNEH

Lack of jurisdiction does not relieve Parties of duty to settle dispute through
peaceful means — Jurisdiction cannot be invoked on the basis of the United
Nations Charter in the absence of consent — Effect of Indian communication of
1974 regarding the General Act — Effect of lack of subsequent reaction to that
communication — Conclusion dectining jurisdiction, though justifiable, does not
possess necessary certainty to fortify it against recurring doubts — Irrelevance
of “multilateral treaty” reservation — Justifiable doubts regarding obsolescence
of “Commonwealth” reservation — Case not conclusively made for obsoles-
cence — Right of States to make reservation not unlimited — Intention of
declarant State to be ascertained from wording of reservation as well as from
circumstances — Indian declaration of 1974 — Intended against one State only
— Unlike other reservations ratione personae no defensible justification —
Extraordinary and exceptional nature of Indian reservation puts it outside pur-
view of permissibility — The issue of separability — Relevance of concepts from
major systems of law — Analysis of decision by Indian Supreme Court — Rele-
vance of and analogies from law of treaties — Separability is possible.

1. I regret that in this, the first case in which I participate, I am unable
to agree with all the conclusions reached by the majority. Consequently
1 am unable to join in their decision that the Court has no jurisdiction.

2. Before explaining the reasons that have led me to take this position,
I must emphasize that I endorse wholeheartedly the call made by the
Court on the two States to settle this dispute, and indeed all the disputes
that have plagued their relations since 1947, through peaceful means. The
question of jurisdiction is important but it is ultimately a technical mat-
ter, and lack of jurisdiction does not in itself indicate that the dispute is
not justiciable, nor does it relieve the parties of their duty to pursue
peaceful settlement on the basis of international law. I also feel that the
call made by the Court is both urgent and appropriate. Its urgency may
be measured against the possibilities of dangerous escalation which, on
more than one occasion in the recent past, almost brought India and
Pakistan to the brink of nuclear confrontation. Its appropriateness, on
the other hand, rests on precedent and the fact that in making this call,
the Court is acting wholly within its powers, as the principal judicial
organ of the United Nations.

3. Within the context of the present case the making of this call is all
the more pertinent in view of the disquieting fact that all attempts at pur-

40
49 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

suing other peaceful means were rejected by the respondent State before
the case was brought to the Court.

4. The Court’s jurisdiction has been invoked on the grounds that it
falls within what is meant by the phrase “all matters specially provided
for in the Charter of the United Nations”. To the extent that this argu-
ment was abandoned by counsel for Pakistan and, more importantly,
since the Charter does not provide for compulsory jurisdiction, I find
myself in agreement with the majority view.

5. Fam also in substantive agreement with my colleagues that the 1928
General Act for the Pacific Settlement of International Disputes does not
provide a basis for the Court’s jurisdiction in view of the Indian commu-
nication of 1974, which, while not constituting a formal denunciation of
the said Act, not having been made in accordance with the procedure laid
down in Article 45 of the Act, has nevertheless been treated as “a notifi-
cation” by the Secretary-General of the United Nations. This fact, taken
together with the lack of any subsequent reaction by the parties to the
Act, including Pakistan — if one is to accept that the latter’s communica-
tion of 1974 announcing that the Act “continued in force” for Pakistan
by way of succession meant that it was party to the General Act — con-
firms this conclusion.

6. I must add, however, that I share in this conclusion with consider-
able hesitation, for I continue to believe that the only thing that could be
stated with certainty and without too much fear of contradiction with
regard to this alleged basis of jurisdiction is that the Dominion of India
was bound by the General Act as of 21 May 1931. All else remains in the
realm of subjective and contradictory statements, and this includes such
questions as whether the Act devolved on Pakistan by automatic succes-
sion; whether India continued to be bound by it after its independence by
succession or otherwise and — beyond the present case — whether the
Act is a political treaty, whether political treaties are transmittable and
lastly whether the Act survived the demise of the League of Nations and
the conclusion of a revised General Act. By confining itself to the effects
of the Indian communication of 1974 and not dealing with these inter-
related issues, some of which have appeared before the Court in previous
cases, the Court may have achieved mathematical elegance but at the
expense of leaving those issues without clarification. In other words the
Court based its decision on a conclusion which might be justifiable in the
present context, but which falls short of the certainty required to fortify
the decision against recurring doubts.

7. The third basis on which the Court’s jurisdiction has been invoked
is the optional clause system, to which both India and Pakistan are party.
Both States have attached various conditions and reservations to their
respective declarations accepting the Court’s compulsory jurisdiction.
Two of them concern us in the present case. Let me refer first to the so-
called “multilateral convention” reservation common to both declara-
tions. To the extent that the actions complained of by Pakistan would

4]
50 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

prima facie constitute breaches under customary international law, the
reservation is simply irrelevant and cannot bar the Court’s jurisdiction! .

8. The other reservation, found in the Indian declaration only, is the
Commonwealth reservation. As is well known, this reservation has its
genesis in a reservation made by the United Kingdom and the six other
members of the Commonwealth in 1930 when they became party to the
General Act. When the Dominion of India acceded to the General Act in
1931 the reservation was incorporated into the Indian declaration. The
rationale for it then was that disputes among Commonwealth members
would be settled by a court to be specially created for this purpose but
which in fact never came into existence. Notwithstanding this and the
further fact that the Commonwealth has since undergone fundamental
changes bordering on a metamorphosis, the reservation continued to
appear in the declarations made by some Commonwealth countries
including recent cases of newly independent States, although the number
of States entering such a reservation is quite small. In these circumstances
doubts regarding the obsolescence of the reservation are quite justified.
I have in mind primarily Judge Ago’s dissenting opinion in the case con-
cerning Certain Phosphate Lands in Nauru (Nauru v. Australia), but
doubts have also been expressed in the literature*. Against this line of
thinking, it has been argued that the doctrine of obsolescence does not
apply to unilateral acts. This argument is not without force, except that it
is based on the assumption that what starts as a unilateral undertaking
goes on being so even when it is transformed into mutual arrangements,
raising in other parties to the optional clause system reasonable expecta-
tions not dissimilar to those raised under treaty relations. Be this as it
may, whilst doubts linger regarding the obsolescence of this reservation,
the case has not been conclusively made for obsolescence.

9. The major obstacle to the argument of obsolescence, as far as the
present case is concerned, is the repeated insertion of the Commonwealth
reservation in successive Indian declarations accepting the Court’s com-
pulsory jurisdiction, and it is precisely the maintenance of this reservation
and the modifications that were inserted into it that sets the Indian reser-
vation aside from other Commonwealth reservations found in declara-
tions made by other States, and leaves no doubt as to the existence of a
conscious will on the part of India to transform the reservation — origin-
ally meant as a means of providing for alternative modes of peaceful
settlement — into a reservation ratione personae, properly so described,
directed against one State only: Pakistan, a State which maintains no
similar reservation with regard to India. Thus in 1959 India modified the

! Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United
States of America), 1. C.J. Reports 1984, pp. 424-425, para. 73.

2 LCI. Reports 1992, p. 326.

+ Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Juris-
diction of the International Court of Justice, pp. 120-122.

42
SI AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

wording of the reservation to read: “(2) Disputes with the Government
of any State which, on the date of this Declaration, is a Member of the
Commonwealth of Nations”# Omitted from the new version were the
words “all of which disputes shall be settled in such manner as the parties
have agreed or shall agree” which were contained in previous declara-
tions.

10. In 1974 a new declaration was made by India and again the reser-
vation was maintained, but with a new modification. It now reads:
“(2) disputes with the government of any State which is or has been a
Member of the Commonwealth of Nations” *.

11. By 1974, Pakistan had left the Commonwealth and the change in
the wording was necessary to bar the Court’s jurisdiction in disputes with
that State, which was in fact trying to invoke that jurisdiction against
India. There can be no doubt in the light of those circumstances that the
reservation was intended to operate against Pakistan. The only other
States that were no longer Members of the Commonwealth were South
Africa, but that happened in 1960, and Ireland, which had left the Com-
monwealth in 1948.

12. The argument has however been made that even if the reservation
was directed at Pakistan alone, this would be no more than a classic
reservation ratione personae made under a system of compulsory juris-
diction where the practice has permitted a choice of partners, and that
therefore the Indian reservation did not amount to discrimination or
abuse of rights but is wholly within a declarant State’s discretion.

13. I propose now to examine this issue bearing in mind that the Court
has never had the opportunity to decide on the validity or otherwise of a
reservation excluding disputes ratione personae.

14. As a general comment, it has long been recognized that the prac-
tice of the Court has tended to accord States more freedom to enter
reservations in their declarations accepting its compulsory jurisdiction
than the plain words of Article 36, paragraph 3, of the Statute provide for.
One looks in vain for any reflection of the maxim inclusio unius est exclu-
sio alterius. Be this as it may, the fact that a reservation is extra-statutory
in the sense that it goes beyond Article 36, paragraph 3, cannot in itself,
in view of the existence of settled practice, lead to invalidity. On the other
hand, when all allowance is made for political realism and when cogni-
zance is fully taken of the fact that the Court’s jurisdiction operates only
within the parameters of the declarations and that its jurisdiction has to
be proved to the hilt, some room must be left for an objective assessment
of the validity or otherwise of the reservations and conditions contained
in declarations accepting its jurisdiction. To deny this is to abdicate
responsibility. Where the Court strikes a delicate balance between the

+ LCJ. Yearbook 1959-1960. p. 242.
SECU. Yearhook 1996-1997, p. 99.

43
52 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

need for care and caution in asserting its jurisdiction on the one hand,
and the duty to do justice on the other, has to be decided contextually in
each case.

15. Another important consideration to be borne in mind in striking
that delicate balance is that the system of international adjudication is
not a Static one. Indeed, implicit in the very notion of an optional system
is a presumption of temporariness. When the concept of an optional
clause system was born, it was not possible to gain universal support for
a comprehensive system of adjudication and it is still doubtful that such
a system can gain support in the foreseeable future, but this should not
obscure the need to move towards that ideal.

16. In deciding the validity or otherwise of reservations, the Court
cannot be oblivious to the fact that merely to take note of reservations
without examining their content can hardly advance the cause of inter-
national adjudication. In the realm of questions relating to the determi-
nation of its own jurisdiction {la compétence de la compétence) the
Court has never shied away from rejecting arguments that sought, under
the guise of the unilateral nature of declarations, to reserve such matters
to the discretion of the declarant State. There is no reason why the same
reasoning should not apply to other areas where the Court’s jurisdiction
is invoked.

17. The distinction drawn between situations that fall under para-
graph 6 of Article 36 and the remainder of that Article is an artificial one
and, if maintained, will mean that the unity of purpose of the Article will
collapse.

18. From the early days of the optional clause system, reservations
ratione personae have been made in myriad ways, but they have invari-
ably had a rationale, or at least a reasonably defensible justification. It
would not be proper for me to comment on the validity or otherwise of
those reservations that have not been considered by the Court — espe-
cially as most of them are contained in declarations that have either
lapsed or were withdrawn. Suffice it to mention in general that reserva-
tions ratione personae meant to provide for alternative ways of peaceful
settlement have a rationale that fortifies them against accusations of arbi-
trariness. Similarly, reservations that made acceptance of compulsory
jurisdiction conditional upon a number of State Members of the League
of Nations accepting similar commitments also have a Justification. Like-
wise reservations that made recognition of the declarant State a prior
condition to adjudication under the optional clause may be said to have
a rationale. What sets the Indian Commonwealth reservation apart, as
worded in the 1974 declaration, is that it does not even pretend to have a
justification. To be sure, any reservation, even if made ratione materiae
or ratione temporis or otherwise, will ultimately exclude jurisdiction in
respect of disputes between the declarant State and one or more other
States. The difference between such reservations and the Commonwealth
reservation in this case might be no more than one of more careful con-

44
53 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

cealment of intent, but declarant States are at least entitled to the benefit
of the doubt in this regard. By entering a reservation that cannot be inter-
preted — when regard is given to its terms and the circumstances in
which it was made — except as intended to bar jurisdiction with another
State only, and when one also considers that removal of this bar to juris-
diction is not dependent on the fulfilment of an objective condition, and
considers further that the State against whom the reservation is intended
to operate maintains no similar reservation with regard to the declarant
State and is entitled to reasonable expectations of adjudication under the
network of engagements that constitutes the optional clause system, one
appreciates that the Indian reservation, as presently worded, is of a truly
unique nature. The Court could not have been clearer when it stated:

“the unilateral nature of declarations does not signify that the State
making the declaration is free to amend the scope and the contents
of its solemn commitments as it pleases” ®.

19. An assessment of the terms of the Indian Commonwealth reserva-
tion (addition of the words “or has been” a Member of the Common-
wealth of Nations), the absence of a reference to alternative means of
peaceful settlement agreed upon or to be agreed upon, and a considera-
tion of the circumstances under which the reservation was made together
with the actual text, reveal a clear will of arbitrary exclusion and give the
reservation an exceptional nature that puts it outside the purview of per-
missibility. | am compelled therefore to the conclusion that the reserva-
tion is invalid and cannot bar the Court’s jurisdiction.

20. Having reached this conclusion, I shall now turn to the consequen-
tial question of whether the invalid part of the Indian declaration is sepa-
rable from the rest or, whether, as was argued for India, the declaration
and the reservation stand or fall together.

21. The separability of void or invalid reservations from declarations
accepting the Court’s compulsory jurisdiction is still in most ways terra
incognita. The paucity of precedents and the further fact that, on the few
occasions when the question was considered — notably in the Certain
Norwegian Loans and Interhandel cases, and in the Fisheries Jurisdiction
(Spain v. Canada) case’ — it was not settled, are both undoubtedly con-
tributory factors to the lack of authoritative solutions. However, much of

® Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), 1. C.J. Reports 1984, p. 418.

7 Certain Norwegian Loans, Judgment, LC.J. Reports 1957, p. 55; Interhandel, Pre-
liminary Objections, Judgment, LC.J. Reports 1959, pp. 57. 77 and 116: Fisheries Juris-
diction (Spain v. Canada), Jurisidiction of the Court, Judgment, LC.J. Reports 1998,
para. 47.

45
54 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

the uncertainty stems from the very nature of the concept of separability
itself, which, though governed by the general principles of interpretation,
depends largely on a reconstruction of the parties’ probable intention in
making the legal act, as well as on another factor, extraneous to the text
itself, namely whether continued performance will lead to unjust results
for the concerned party after severance of the impugned part.

22. By contrast to the Court’s jurisprudence, a wealth of concepts
exists in the major systems of law, and whether these are to be found in
the domain of the judicial review of public statutes or of private con-
tracts, they are relevant as general principles of law within the meaning of
Article 38, paragraph 1 (c), of the Statute of the Court.

23. Recourse should be had to those concepts and also to the law of
treaties (the Vienna Conventions of 1969 and 1986), not only because
declarations accepting the Court’s compulsory jurisdiction constitute a
“network of engagements”, but also because the views of some of the
judges in the aforementioned cases had the effect of leading the Interna-
tional Law Commission to reopen its consideration of the matter of sepa-
rability, a process which led in turn to the adoption of Article 44 of the
1969 Vienna Convention on the Law of Treaties, and of the same num-
bered Article in the 1986 Vienna Convention on the Law of Treaties
between States and International Organizations or between International
Organizations, both of which deal with separability.

24. As an example from one of the major systems of law, the Court
was kindly invited by the Attorney General for India to consider a case
decided by the Supreme Court of India in 1957, in which the underlying
principle that:

“The test to be applied is whether the legislature would have
enacted the valid part if it had known that the rest of the statute was
invalid. If the valid and the invalid provisions are so inextricably
mixed up that they cannot be separated from one another, then the
invalidity of a portion must result in the invalidity of the Act in its
entirety” 8

is said to support India’s contention as to inseparability of the reserva-
tion from its declaration.

25. A closer look at that decision, far from supporting such a conten-
tion, in fact reveals a more complex and less severe test for separability —
which relies heavily on United States judicial precedents and authori-
ties — than was suggested to the Court.

8 R. M. D. Chamarbaugwalla v. The Union of India, 1957. Supreme Court Reports,
pp. 950-951; CR 2000/2, p. 14.

46
55 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

26. Thus the Indian Supreme Court, in commenting on an earlier deci-
sion stated:

“The doctrine of severability rests, as will presently be shown, on
a presumed intention of the legislature that if a part of a statute
turns out to be void, that should not affect the validity of the rest of
it, and that that intention is to be ascertained from the terms of the
statute. Ît is the true nature of the subject-matter of the legislation
that is the determining factor, and while a classification made in the
statute might go far to support a conclusion in favour of severabil-
ity, the absence of it does not necessarily preclude it.”°?

27. As for the test itself, it comprises seven elements, only parts of
which were cited in the oral pleadings, Le., the first element and the first
half of the second element. The first element relates to whether the legis-
lature would have enacted the valid part if it had known the invalidity of
the rest and is simply irrelevant in the present case.

28. No one has contended that India knew in advance that its Com-
monwealth reservation was invalid. In fact, India argued that its Com-
monwealth reservation was not “repugnant to Article 36, paragraph 3, or
any other article of the Statute”.

29. The second element relating to the valid and invalid portions being
so inextricably mixed up that they cannot be separated, is balanced by
the rest of the element under the same heading (which was not cited), but
which states:

“On the other hand, if they are so distinct and separate that after
striking out what is invalid, what remains is in itself a complete code
independent of the rest, then it will be upheld notwithstanding that
the rest has become unenforceable.” !®

Applying this to the Indian declaration, even a cursory perusal would
confirm that its various elements are formally classified into distinct
headings and apply ratione materiae to separate matters, the integrity
of which would not be affected by striking out the impugned reserva-
tion.

30. The third element is that even if the valid and invalid parts are dis-
tinct, the invalidity of some will result in the invalidity of the whole, if
they all form part of a single scheme intended to operate as a whole. This
element of the test is more to the point, for here the intention of the
legislature or — by analogy — the declarant State comes to the forefront
and assumes primacy over the other elements. But in this area also, the
Indian argument fails because of the lack of evidence to support the

°R. M. D. Chamarhaugwalla v. The Union of India, 1957, Supreme Court Reports,
p. 944.
10 Thid., p. 951.

47
56 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

claim that the declaration and reservation were intended to operate as a
single scheme. Nothing can be more obvious than the fact that ex post
facto statements made while this case was being considered before the
Court to the effect that the declaration “constitutes an integral whole, an
unity, reflecting the intention of the party” cannot substitute retroactively
for the total lack of evidence. The only evidence that could be adduced in
this respect was the fact that the Commonwealth reservation was main-
tained in the various declarations made by India accepting compulsory
jurisdiction. No firm inference however can be drawn from this practice,
save the inference that the reservation was important — perhaps even of
considerable importance — to India, but this cannot of itself support a
finding that it was the crucial or essential element in India’s acceptance of
compulsory jurisdiction. In the first place there is a general presumption
that States do not act lightly or frivolously and, in the area of formulat-
ing the terms of their acceptance of the Court’s compulsory jurisdiction,
it is reasonable to assume that States attach importance to all the reser-
vations and conditions contained in their declarations, especially if such
conditions have withstood the test of time and the even more havoc-
wreaking scrutiny of rigorous officials. However, to infer that every
reservation that has not been purged or trimmed falls within the ambit
of the crucial element of consent is to assume too much.

31. In the Certain Norwegian Loans case Judge Hersch Lauterpacht’s
often-quoted opinion on the inseparability of the French reservation on
domestic jurisdiction from the rest of France’s declaration rested on two
grounds: the subject-matter of the reservation and the supporting evi-
dence. With respect to the subject-matter, the French reservation, relat-
ing as it did to domestic jurisdiction, defined a general attitude towards
the concept of compulsory jurisdiction and the limits within which France
was ready to accept limitations to its own jurisdiction. His inference as to
inseparability was therefore entirely justified. By contrast, the Indian res-
ervation related only to a group of States and could not therefore define
a general attitude or a general posture to compulsory jurisdiction. Addi-
tionally, the centrality of reserving matters to domestic jurisdiction per-
tains by definition to the very concept of sovereignty and this fact was
supported by statements that had been made in the French Chamber of
Deputies. In the present case no evidence could be supplied by India,
either with reference to the “legislative history” of the declaration or other-
wise, regarding the essential or crucial character of the Commonwealth
reservation to India’s consent.

32. The remaining elements in the test devised by the Indian Supreme
Court — 4, 5, 6 and 7 — deal respectively with the requirement that what
is left should not be so thin and truncated; the primacy of substance over
formal classification; the requirement that there be no subsequent modi-
fication of the valid part amounting to judicial legislation; and the need
to look at the legislative history of the Statute, its object, title and pre-

48
57 AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

amble. Applying these elements to the Indian declaration they all argue
for separability of the reservation from the declaration.

33. I have delved into the learned arguments in this Indian decision in
answer to the call to do so made by the Attorney General for India, but
it is unnecessary to delve in like fashion into similar concepts found in
other major systems of law. It is reasonable to expect that the solutions
devised by those systems would not be radically different from that deci-
sion. Suffice it to mention, for example, that under Islamic law, the prob-
lem of separability would seem to be governed by the maxim “Ma La
Udraku kulluh La Utraku Julloh” — that which cannot be attained in its
entirety should not be substantially abandoned. A concept remarkably
similar to the Roman law principle ut res magis valeat quam pereat — a
document should be given validity wherever possible. It is also similar
to what is generally agreed to be one of the basic goals of the law on
invalidity, as formulated in the Vienna Conventions of 1969 and 1986,
namely “to preserve, whenever possible, the validity of conventional
arrangements rather than to altogether destroy it by considerations alien
to that goal” !1.

34. To be sure, the law of treaties has had to acknowledge a tension,
traceable to the early publicists!?, between the need on the one hand to
preserve the integrity of treaties and to guard against arbitrary separabil-
ity, and on the other not to permit States to invoke the very invalidity
which they may have caused to be freed from their other obligations.
Additionally, as treaties have tended to become more multilateral and
heterogeneous in content, the rules governing separability have also
tended to become more relaxed.

35. Reflecting those developments in the field of treaty-making and
reconciling, or at least trying to reconcile those tensions, Article 44 of the
Vienna Convention on the Law of Treaties opened the door for the prin-
ciple of separability of treaty provisions, albeit in suitably guarded terms
and subject to cumulative conditions stricter in some respects than those
found under the general principles of law referred to in Article 38, para-
graph | fe), of the Statute.

36. Thus, in paragraph 3 of Article 44, the principle of separability is
established in cases where the ground relates solely to particular clauses
(which is self-evidently the case with respect to the Commonwealth
reservation) and where:

(a) The said clauses are separable from the remainder of the treaty with
Il Rozakis. The Concept of Jus Cogens in the Law of Treaties, 1976, p. 124.

'2 For an historical overview see Codification of International Law, Supplement to the
American Journal of International Law, Vol. 29, 1935, pp. 1134-1144.

49
38

(b)

AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

regard to their application — which is again self-evident in the case
of the Commonwealth reservation.

It appears from the treaty or is otherwise established that accept-
ance of those clauses was not an essential basis of the consent of the
other party or parties to be bound by the treaty as a whole.

The International Law Commission’s commentary on what was
to become Article 44, paragraph 3 (c), makes it clear that whether
the condition is met “would necessarily be a matter to be established
by reference to the subject-matter of the clauses, their relation to the
other clauses, to the travaux préparatoires and to the circumstances
of the conclusion of the treaty”.

In this regard, the subject-matter of the Commonwealth reserva-
tion — being particular to a group of States and not representing a
general attitude towards the concept of compulsory jurisdiction
such as would be, for example, the exclusion of matters falling
within the domestic jurisdiction of the declarant State — does not
give rise to an inference that acceptance of the reservation was an
essential or crucial basis of consent to submit to compulsory juris-
diction. Moreover, the relationship of the reservation to other res-
ervations or conditions or other parts of the declaration cannot sup-
port such an inference. The only inference that can be drawn ts that
the reservation is readily separable from the remainder of the dec-
laration. As for the travaux préparatoires (or their equivalent in the
area of the optional acceptance of compulsory jurisdiction) no evi-
dence whatsoever was provided by India that, with reference to
those sources, its consent depended crucially on inseparability of
declaration and reservation.

The words “and to the circumstances of the conclusion of the
treaty” may give credence prima facie to the argument that, since
the revised version of India’s latest declaration in 1974 took place in
circumstances where India was trying to avoid Pakistan’s invocation
of the Court’s jurisdiction, it represented an essential basis of India’s
consent. Again in the absence of supporting evidence and given that
the subject-matter of the reservation is confined to a particular class
of disputes, any conclusion that goes beyond acknowledging that
the reservation was an important — as distinct from an essential —
basis of consent would be unwarranted. Indeed the very fact that
India chose to renew its declaration — with modifications — under
those circumstances would support this conclusion.

(c) Continued performance of the remainder of the treaty would not be

'3 Yearbook of the International Law Commission, 1966, Vol. IL, p. 238. Sinclair, The
Vienna Convention on the Law of Treaties, 2nd ed., pp. 166-167.

50
59

AERIAL INCIDENT (DISS. OP. AL-KHASAWNEH)

unjust. As is well known, this condition has been criticized as being
inevitably subjective, adding little to the underlying basis of condi-
tion (6) !*. Against this, the rationale for the paragraph seems to be
that it is useful to deal with situations where — with the passage of
time — certain provisions may gain or lose in importance in a way
not foreseen in the negotiations. Whatever the merits or demerits of
this condition, it is apparent that the continued binding force of the
Indian declaration without the reservation would not be unjust for
India, given that Pakistan maintains no such reservation with regard
to India. Moreover, while opinions differ as to the obsolescence
stricto sensu of the Commonwealth reservation, there can be little
doubt that the reservation is losing in relevance as time passes !, as
can be seen not only from the diminishing number of Common-
wealth members who maintain such a reservation but also from the
phenomenon — admittedly still in statu nascendi — of greater readi-
ness on the part of States, including Commonwealth members, to
submit to compulsory jurisdiction in other fora and under important
instruments, for example under the 1982 Law of the Sea Convention
and within the framework of the World Trade Organization.

37. It would seem therefore that the reservation in question is likely to

decline further in importance over time, which would support the conclu-
sion that striking out the Commonwealth reservation is unlikely to lead
to unjust results for India by reason of the continued performance of its
remaining obligations under its declaration.

38. It would follow, therefore, that the reservation is separable from

the rest of the declaration.

(Signed) Awn S. AL-KHASAWNEH.

14 Capotorti, “L’extinction et la suspension des traités”, 134 Recueil des cours, 1971,
p. 463.

15 The literature lends authority to this view: Merrills for example observes “this reser-
vation must be taken to have outlived its usefulness” (British Yeur Book of International
Law, 1993, p. 222).

SI


OPINION INDIVIDUELLE DE M. SCHWEBEL
[Traduction]

Bien qu’ayant voté pour l’ordonnance de la Cour, j'ai voté contre l’un
de ses paragraphes et me sens tenu de m’en expliquer.

Après avoir fait observer dans l'ordonnance qu’il n’y a pas lieu pour la
Cour, dans les circonstances de l’espèce, de rechercher si des mesures
conservatoires peuvent ou non être indiquées à l’occasion d’une procé-
dure pour avis consultatif, la Cour poursuit:

«Considérant que la Cour prend note que l’Assemblée générale, à
la séance au cours de laquelle elle a adopté la résolution 42/229B par
laquelle elle demande un avis consultatif à la Cour, a aussi adopté la
résolution 42/229 A par laquelle elle

« demande au pays hôte de respecter les obligations qu’il a contrac-
tées au titre de l’accord et de donner l’assurance qu’il ne sera pris
aucune mesure qui porte atteinte aux arrangements actuellement
en vigueur en ce qui concerne les fonctions officielles de la mission
permanente d'observation de l'Organisation de libération de la Pa-
lestine auprès de l'Organisation des Nations Unies à New York.»

A mon avis, l'inclusion du paragraphe qui précède dans l’ordonnance
est contestable pour les raisons ci-après.

Le Statut de la Cour dispose que la question sur laquelle un avis consul-
tatif de la Cour est demandé est exposée à la Cour « par une requête écrite
qui formule, en termes précis, la question sur laquelle l’avis de la Cour est
demandé...» (art. 65, par. 2). La compétence de la Cour dans une procé-
dure consultative est limitée par les termes de cette question.

«On trouve une application particulièrement significative de ce
principe dans les cas où l’avis consultatif est demandé sur une ques-
tion de procédure de caractère préliminaire. Dans de tels cas, la Cour
a pris soin dans son avis de ne pas préjuger le problème de fond.»
(Shabtai Rosenne, The Law and Practice of the International Court,
vol. 2, 1965, p. 699, qui cite l’affaire de l’Interprétation de l'article 3,
paragraphe 2, du traité de Lausanne, C.P.J.I série B n° 12, p. 18, et l’af-
faire de l’Interprétation des traités de paix conclus avec la Bulgarie, la
Hongrie et la Roumanie, C.J. Recueil 1950, p. 70.)

Dans la présente affaire, la question précise posée à la Cour est exclusi-
vement de savoir si les Etats-Unis sont tenus de recourir à l’arbitrage
conformément à la section 21 de l’accord entre l'Organisation des Nations
Unies et les Etats-Unis relatif au siège de l'Organisation des Nations
Unies. La question est ainsi limitée à une question de procédure de carac-
ACCORD RELATIF AU SIÈGE (OP. IND. SCHWEBEL) 7

tère préliminaire. L'Assemblée générale s’est délibérément abstenue de
poser à la Cour une question touchant la question de fond sous-jacente, à
savoir si, par l’effet des dispositions de l’accord de siège, la mission per-
manente d'observation de l'Organisation de libération de la Palestine
auprès de l'Organisation des Nations Unies doit être mise en mesure de
maintenir des locaux et des installations adéquates à l’intérieur de la juri-
diction des Etats-Unis. Cette question n’a pas été posée à la Cour, avec la
nette intention qu’elle soit traitée exclusivement en application de la sec-
tion 21 de l’accord de siège, c’est-à-dire par un tribunal arbitral habilité à
rendre une décision définitive. Il convient d’observer à cet égard que la
section 21 dispose en outre que le Secrétaire général de l'Organisation des
Nations Unies ou les Etats-Unis pourront prier l’Assemblée générale de
demander à la Cour internationale de Justice un avis consultatif sur
«toute question juridique qui viendrait à être soulevée au cours de ladite
procédure [d’arbitrage]. … Par la suite, [le tribunal arbitral] rendra une
décision définitive en tenant compte de l’avis de la Cour.» Mais aucune
question de ce genre n’a été posée à la Cour, en tout cas jusqu’à présent.
D'ailleurs la question dont la Cour est maintenant saisie concerne seule-
ment l'obligation de recourir à l’arbitrage conformément à l’article 21
de l’accord de siège.

La Cour a néanmoins adopté une ordonnance dans laquelle elle prend
note d’un paragraphe d’une résolution de l’Assemblée générale qui ne lui
est pas adressé, et elle cite ce paragraphe, lequel fait intervenir la question
de fond sous-jacente évoquée ci-dessus. Dans ce paragraphe, et de ma-
nière encore plus explicite dans la résolution qui le contient, il est pris
position sur cette question de fond.

Ce faisant, la Cour a d’après moi dépassé tout de suite les limites de sa
compétence et débordé sur la question de fond, qui ne lui a pas été posée.
Pire encore, dans le cas où un arbitrage aurait lieu entre l'Organisation des
Nations Unies et les Etats-Unis, conformément à la section 21, et où une
question soulevée au cours de cette procédure serait posée à la Cour, cette
dernière, pour avoir cité le paragraphe en question, s’exposerait peut-être
à être accusée d’avoir préjugé la question.

On peut dire, à la décharge de la Cour, que celle-ci, n’étant pas à même
d'indiquer des mesures conservatoires dans la présente procédure consul-
tative, a pris note du paragraphe en question au lieu d’en indiquer. C’est
peut-être là une explication exacte de l'intention de la Cour mais cela ne
saurait constituer un moyen adéquat de défendre ce qu’elle a fait. La cita-
tion par la Cour du paragraphe en question ne peut avoir l’effet de
mesures conservatoires; à aucun degré elle ne supplée effectivement à
Vindication de mesures conservatoires. Il semble qu’il s’agisse plutôt de
l'expression d’une préoccupation de la Cour, expression qui n’a pas un
caractère juridique. C’est une raison supplémentaire pour déplorer son
inclusion dans l'ordonnance de la Cour.

(Signé) Stephen M. SCHWEBEL.