COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INTERHANDEL

(SUISSE c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE DU 15 JANVIER 1958

1958

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

INTERHANDEL CASE

(SWITZERLAND v. UNITED STATES OF AMERICA)

ORDER OF JANUARY 15th, 1958
La présente ordonnance doit étre citée comme suit :

« Affaire de V Interhandel,
Ordonnance du 15 janvier 1958: C.I. J. Recueil 1958, p. 4.»

This Order should be cited as follows:

“Interhandel Case,
Order of January 15th, 1958: I.C.J. Reports 1958, p. 4.”

N° de vente: 177
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INTERNATIONAL COURT OF JUSTICE

YEAR 1958

January 15th, 1958

INTERHANDEL CASE

(SWITZERLAND v. UNITED STATES OF AMERICA)

ORDER

The Vice-President of the International Court of Justice, Acting
President in this case,

having regard to Article 48 of the Statute of the Court,
having regard to Article 37 of the Rules of Court;

Having regard to the Order of October 24th, 1957, whereby
the Court fixed January 31st, 1958, as the time-limit for the filing
of the Memorial of the Government of the Swiss Confederation,
and March 3rd, 1958, as the time-limit for the filing of the Counter-
Memorial or any Preliminary Objections of the Government of
the United States of America, the rest of the procedure being
reserved for further decision;

Whereas, on January 1oth, 1958, the Ambassador of Switzer-
land to the Netherlands and the Ambassador of the United States
of America to the Netherlands transmitted to the Registrar an
application, drawn up in agreement between the Agent of the
Swiss Government and the Agent of the Government of the
United States of America, for the extension of these time-limits
to April rst and to June 15th, 1958, respectively;

Whereas there is no objection to granting this application;

Extends to April 1st, 1958, the time-limit for the filing of the
Memorial of the Government of the Swiss Confederation and to
June 16th, 1958, the time-limit for the filing of the Counter-

4

1958
January 15th
General List :

No. 34
INTERHANDEL (ORDER OF 15 I 58) 5

Memorial or any Preliminary Objections of the Government of
the United States of America, the rest of the procedure remaining
reserved for further decision.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this fifteenth day of
January, one thousand nine hundred and fifty-eight, in three
copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Swiss
Confederation and to the Government of the United States of
America, respectively.

(Signed) A. BADAWI,
Vice-President.

(Signed) J. Lépez OLIVAN,
Registrar.


T95

DISSENTING OPINION OF JUDGE GOITEIN

It is with diffidence that I dissent from the judgment of the
majority of the Court. I am strengthened in the decision I have
come to by the views of my learned colleagues who have dissented.
These appear to me to give a less strained interpretation of the
Statute that binds us than that adopted by the majority, and their
reading of the law enables this Court to fulfil and not deny the
purpose for which it was founded.

Bulgaria has submitted no facts to this Court and we can therefore
only rely on those stated in the Israel Memorial, facts which have
still to be proved. The chronicle of events, as set out by the Govern-
ment of Israel, is as follows: “On July 27, 1955, a civil passenger air-
craft, registered in Israel... while on a scheduled commercial flight
from London to Lod ... came down in flames in the region of Petritch,
Bulgaria. Not one of the occupants of this aircraft—fifty-one passen-
gers and seven members of its crew—survived the disaster ... the Bul-
garian Government, on 28 July, officially ... announced how this had
come about. That Government’s armed forces had shot down and
destroyed the aircraft, killing all its occupants. This was amplified
… on 4 August when the Bulgarian Government ... again gave out
that its armed forces had destroyed the aircraft, those armed
forces having acted in haste and without taking all the necessary
measures... The Bulgarian Government gave ... undertakings
regarding the identification and punishment of those guilty ... as
well as regarding the eventual payment of compensation.” (See the
full text on pp. 4 and 5 of the Memorial of the Government of
Israel.) After setting out the above chronicle of events, and after
referring to the diplomatic negotiations which had failed to bear
fruit, the Government of Israel stated that it had turned to this
Court and prayed that it formally declare ‘that Bulgaria is res-
ponsible under international law for the destruction of the aircraft
and by determining the amount of compensation due”. (Zbid., p. 5.)

If the facts are as stated in the Memorial, as summarized above,
then this would appear to be a dispute with which this Court and
this Court alone is competent to deal. In my opinion, therefore, this
Court should be anxious to right a wrong and take upon itself to
judge between the Parties before it. The Court should refuse to
exercise jurisdiction only if its Statute clearly and unequivocally
withholds jurisdiction from it. I shall show in this Opinion that far
from withholding jurisdiction from the Court, the law unequivocally
clothes it with power to decide the present dispute. The Statute of

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196 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

this Court, which otherwise follows that of the Permanent Court,
enacted a special paragraph—paragraph 5 of Article 36—precisely
in order to clothe this Court with the jurisdiction it might otherwise
have been unable to exercise.

I respectfully agree with my colleagues in the majority that this
Court must first be satisfied that the Parties have voluntarily
submitted to its jurisdiction before it can take upon itself to decide
a dispute brought before it. I do not agree that that voluntary
submission may not be inferred from an express presumption of
law laying down that such a submission has been made.

The Israel Government in its Memorial (pp. 3 and 4), in order to
show that this Court had jurisdiction, relied upon Declarations
which had been made by both Parties accepting such jurisdiction.
Reference was made to the Declaration of Israel dated 3rd October,
1956, and to that of Bulgaria dated 12th August, 1921. I shall refer
to the latter in this Opinion as the Bulgarian Declaration. In its
First Preliminary Objection, the only one with which the judgment
of the majority, and hence this Opinion, deals, the Bulgarian
Government submitted that ‘‘Article 36, paragraph 5, of the Statute
of the International Court of Justice is inapplicable in regard to the
People’s Republic of Bulgaria.”

The question whether this Court has or has not jurisdiction de-
pends accordingly on the true interpretation of that paragraph, and
on the answer to the question whether that paragraph is applicable
to the Bulgarian Declaration. Indeed, the question raised by the
First Preliminary Objection of Bulgaria may be confined to narrower
limits: what is the meaning of the words in that paragraph ‘still
in force” and of the words “‘parties to the present Statute’? In the
ultimate analysis the Preliminary Objection may be accepted or
rejected in accordance with the interpretation given to the latter
words alone.

I will first read the paragraph as a whole, without taking into
consideration the submissions made on behalf of Bulgaria and
without referring to the reply of the Agent for the Government of
Israel.

The submissions of Counsel for Bulgaria were intended to show
that the terms of Article 36 (5) of the Statute were not applicable
to the present case. To reach this conclusion he was forced to give
a special and peculiar meaning to the words used in the paragraph
in question, and in accepting his submissions the majority of this
Court has—and I say this with the greatest respect—been bound
to give meanings to the terms employed by the legislator which
are not their ordinary meanings, and this Court has been forced

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197 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

to take into account considerations which, it seems to me, are
irrelevant.

The opening words of the paragraph are: “Declarations made
under Article 36 of the Permanent Court of International Justice...”
It is agreed that Bulgaria made such a Declaration. The opening
words, therefore, as applied to the present case, may be interpreted
as: ““The Bulgarian Declaration ...”

The following words are, in the English text, “which are still in
force”, or, in the French text, ‘pour une durée qui n’est pas encore
expirée”. Although I shall enlarge on this phrase in the following
paragraphs, here it may be said that there is no difficulty in giving
the ordinary and natural meaning to this phrase. As the present
tense is used and the word “still”, the interpreter of these words,
without any reference to dictionaries, would understand that the
legislator is speaking as of the Statute date. A declaration existing
on 24th October, 1945, was one to be “caught up” by the paragraph.
The French text, however, which is as binding upon us as the
English, suggests that a declaration is still in force when it has not
come to an end by effluxion of time. Counsel for Bulgaria was well
aware of this and he vainly tried to find support in the Spanish,
Russian and Chinese texts rather than the French and, being a
Frenchman, expressed his regret at this unpatriotic preference.
But it needs more than mere pleading to make words change
their meaning. The words, therefore, ‘‘which are still in force”
mean, as I have said, in force on the Statute date, or, alterna-
tively, refer to declarations which have not come to an end by
effluxion of time.

Was the Bulgarian Declaration still in force in October 1945?
There is no doubt that it was. Here, too, the Bulgarian delegation
does not contend otherwise. It claims that the Declaration “‘died”
in the following year upon the dissolution of the Permanent Court.
The Declaration was also in force because it had not expired by the
effluxion of time. Nor had it been denounced. It was therefore a
declaration covered by Article 36 (5). I accordingly read that part
of Article 36 (5) which I have now discussed as “The Bulgarian
Declaration, which is still in force...”

The following words of the paragraph are: “shall be deemed”.
Reading these words I would infer that the legislator is about to
lay down a legal presumption which would apply to the Bulgarian
Declaration from the Statute date and for the future. Here it is
important to stress, because the Bulgarian Government’s represent-
atives appear to have overlooked this elementary fact, that the
legislator 1s not stating the legal position as it was at the time but

74
198 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

the legal position as he was declaring it to be from the date of the
enactment of the Statute and for the future. The draftsman must
have been fully aware of the fact that the Bulgarian Declaration
was in the nature of a consensual undertaking, made in connection
with a Court that was about to disappear and that not a jot of it
could be altered without the consent of Bulgaria. Nevertheless, as
far as concerned those who were or wished to be Members of the
United Nations, their declarations were from now—the year 1945—
and for the future to be deemed {seront considérées) to be declarations
made in connection with the new Court, the International Court
of Justice.

The presumption would be as valid in 1955 as in 1945—provided,
of course, that Bulgaria had in the meantime become a Member of
the United Nations. With that point I shall deal when I come to
the words which follow. The paragraph, as applied to the present
case, now reads: “The Bulgarian Declaration, which is still in force,
shall be deemed...”

The words which follow are “‘as between the parties to the present
Statute’. I have already said that, in the final analysis, these are
the critical words of the paragraph and the basic difference between
the majority of this Court and those dissenting lies in the inter-
pretation to be given to these words. There is no difficulty about
the words “‘present Statute’. The word “‘present’’ appears because
the Statute of this Court (as is stated in Article 92 of the Charter)
is based on that of the Permanent Court, but nothing depends on
this word. Nor does any question arise as to the word “Statute’’.
What, then, is the meaning of ‘‘the parties” in the context of “par-
ties to the present Statute”? The same words are found when the
Court is first mentioned in the Charter. Article 93 reads:

‘AI Members of the United Nations are zfso facto parties to the
Statute...”

Article 94 reads:

“Each Member of the United Nations undertakes to comply
with the decision of the International Court of Justice.”

Unless there were a contrary intention expressed in Article 36 (5)
of the Statute, I would see no way of interpreting the words “parties
to the present Statute’, except as is expressly declared to be their
meaning in Article 93 of the Charter. No contrary intention is
expressed in Article 36 (5); therefore, using ordinary canons for the
interpretation of Statutes, I would hold without hesitation that
whenever a State becomes a Member of the United Nations it
becomes a “party to the present Statute”, and the words found in
Article 36 (5) of that Statute apply specifically to that State. (For
the purposes of the present case it is not necessary to refer to those
States which “may become a party to the Statute’ under Article 93 (2)

75
199 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

of the Charter.) If further elucidation of the words were neces-
sary, one might turn to paragraph 2 of the selfsame Article 36,
where precisely the same phrase is used, ‘‘the States parties to the
present Statute’, which must refer to Members of the United
Nations, whether to those who were Members at the time of the
enactment of the Statute or to those who would subsequently
become Members, ten or twenty or thirty years later. Any inter-
pretation which would give one meaning to the words “parties to
the present Statute” in Article 36 (2) and a different meaning to
those words in Article 36 (5) would be untenable. Again, the words
“parties to the Statute” appear in Article 36 (4) and obviously refer
to all Members of the United Nations and not to the original signa-
tories of the Charter. The majority of the members of this Court are
of the opinion that in Article 36 (5) the words “parties to the present
Statute’ must be confined to original signatories of the Charter.
and not to those who subsequently became “parties to the present
Statute’’. When the legislator wished to refer to “‘original Members”
he did so in plain words (see for example Article 3 of the Charter).
The words in Article 36, paragraph 5, cannot accordingly be
confined to “original Members”. I therefore read the words of the
paragraph so far discussed as meaning: “The Bulgarian Declaration
which is still in force shall be deemed as between Members of the
United Nations...”

The questions that next arise are whether Bulgaria, when raising
its Preliminary Objection or, earlier, when Israel brought its dispute
with her before this Court, was (a) a Member of the United Nations
and therefore ipso facto a party to the Statute, and {b) whether it
had or had not denounced its Declaration—for there is no question
of effluxion of time—and (c) whether Israel was a Member of the
United Nations and a party to the Statute. The answer to (a) is
that Bulgaria had become a party to the Statute in December 1955.
The answer to {b) is that Bulgaria had at no time and has not until
today denounced its Declaration, and the answer to (c) is that
Israel was at all relevant dates a Member of the United Nations
and a party to the Statute.

I come now to the last words of the paragraph which need concern
us and which have not directly given rise to any question of inter-
pretation. The words are: “to be acceptances of the compulsory
jurisdiction of the International Court of Justice...”.

These words mean that a declaration under Article 36 of the
Statute of the Permanent Court accepting the compulsory juris-
diction of that Court shall from the date of the Statute and for the
future be deemed to be a declaration accepting the compulsory
jurisdiction of this Court, the International Court of Justice.

As applied to the present case, Article 36 (5) now reads: “The
Bulgarian Declaration which is still in force shall be deemed, as
between Members of the United Nations, to be acceptance of the

76
200 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

compulsory jurisdiction of the International Court of Justice.”

It would accordingly follow that the law presumed that Bulgaria,
having voluntarily submitted to the jurisdiction of the Permanent
Court, had voluntarily submitted to the jurisdiction of this Court.
That would lead me to overrule the first Bulgarian Preliminary
Objection.

Counsel for Bulgaria, however, submitted to us that we were not
entitled to read Article 36 (5) as it stands but that we must give a
special meaning to the phrase ‘‘which are still in force” and that
there must be some contemporaneity: that is to say, the State must
be a Member of the United Nations while its declaration is still in
force and that no declaration of a non-Member could survive the
dissolution of the Permanent Court. The paragraph does not support
this contention, so the Bulgarian Delegation would ask us to read
into the words: “still in force” the following: “‘which shall at
the time the Declarant becomes a Member of the United Nations,
provided always that the Permanent Court has not been dissolved,
be still in force”.

For the “parties to the present Statute’, Counsel for Bulgaria
would apparently read ‘“‘parties to the present Statute at the time
of the dissolution of the Permanent Court”. To interpret the former
expression he would add some twenty-four words and to interpret
the latter some ten words. He did not explain to us why, if that was
the intention of the legislator, the appropriate words had not been
used. I do not remember that he contended for the interpretation
which the majority of the Court has given to the phrase.

It would appear as if the majority of the Court accepts part of
this Bulgarian contention. If the words are capable of a reasonable
interpretation according to their ordinary meaning, it does not
seem to be consonant with a proper interpretation of the Statute
to add words which are not there. The interpretation which I have
adopted is that the time referred to in the words “are ... still...” is
the Statute date or, in the alternative, that the words used refer
to a declaration which is no longer in force by effluxion of the term
for which it was made. Accordingly, there is no need to alter the
wording of the paragraph to give it the meaning contended for by
the Government of Bulgaria. The legislator in our case has done
something very simple. “Live” declarations at the time of the
enactment are to be kept alive for the future. These might “die”
with the ‘‘death’ of the Permanent Court, were they not kept
“alive” by Article 36 (5).

It is at this point that the second divergence appears between
the majority of the Court and the Judges dissenting. The Bulgarian

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201 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

representatives repeated over and over again that once the tree
was felled the branches died with the tree. The tree, of course, was
the Permanent Court and the Bulgarian Declaration was the branch.
Counsel for Bulgaria said:

“Mais a partir de la dissolution de la Cour permanente, cette
déclaration s’est trouvée dans la situation bien connue de la fameuse
jument de Roland, qui elle aussi avait toutes les qualités, mais,
par malheur, elle était morte. Et aucun historien n’a jamais prétendu
qu’aprés ce petit accident elle était encore en vie.”

Nothing could revive the dead branch, just as nothing could
revive the dead horse. This is to misunderstand the whole purpose
of the paragraph. Perhaps rather than a misunderstanding, it is
an attempt to nullify the paragraph. An acceptance of the paragraph
as it stands inevitably puts an end to the first Bulgarian Preliminary
Objection. It must, therefore, be read away, removed from the
Statute. There are several ways of doing this. One, as I have said,
is to misunderstand its whole purpose. The other is to submit that
perhaps the Conference of San Francisco, at which Bulgaria was
not present, could not have enacted the paragraph for, by doing
so, it would have been acting wilira vires : the Conference could not
keep alive, without the consent of Bulgaria, a declaration that was
doomed to “die” with the “death ’’of the Permanent Court. This
was soberly argued before us and it would seem as if echoes of
the latter part of this submission are to be found in the Judgment
of the majority.

Article 36 contemplates two kinds of declarations:

{I) those to be made by Members of the United Nations in the
future (paragraph 2);

(2) those already made by States (whether at the time Members
of the United Nations or not) in the past in connection with
the Permanent Court (paragraph 5).

The legislator knew that the Permanent Court was in extremis
and that it would soon be dissolved, to make room for the Inter-
national Court of Justice. If there were no legislation to prevent it,
the declarations made in connection with the Permanent Court
would indeed, as Counsel for Bulgaria argued, come to an end. The
legislator, anxious that all the progress that had been made between
the two wars in furthering international jurisdiction should be
preserved, legislated for the preservation of declarations already
made. The Permanent Court would be dissolved: the declarations
would survive. That is why Article 36 (5) was enacted, and there is
nothing in the paragraph that even hints that the declarations in
question should survive only until the dissolution of the Permanent
Court. To introduce the proviso into the paragraph that the decla-

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202 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

rations were to end with the end of the Permanent Court is not to
read but to misread the paragraph. This Court is being asked not
to interpret the law but to make new law. In so far as the majority
of this Court bases its Judgment on this submission of Counsel for
Bulgaria it is not, in my opinion, interpreting the Statute as it
stands but is remoulding it as it considers it should have been
drafted.

The further argument that the paragraph is somehow ultra vires
need not detain us long. Article 92 of the Charter lays it down
that this Court ‘‘shall function in accordance with the annexed
Statute which ... forms an integral part of the present Charter”.
Article 1 of the Statute lays it down: “The International Court of
Justice ... shall function in accordance with the provisions of the
present Statute.” This Court has no authority to look behind the
articles of the Statute and question the right of the legislator to
enact any particular article or paragraph. We only exist as creatures
of the Statute, and the only decisions we are authorized to make are
those made in accordance with the Statute as it is: not as we might
like it to be.

A further reply to the Bulgarian contention is that on becoming
a Member of the United Nations Bulgaria accepted “the obligations
contained in the present Charter” (Charter, Article 4), and thus
became ‘‘a party to the Statute of the International Court of
Justice” (Charter, Article 93) and was bound by Article 36 of the
Statute as by all the other articles thereof.

Long before her admission to the United Nations, the Bulgarian
Government had publicly declared in 1948 (see Annex 43 at the
end of the Written Observations of the Government of Israel)
its adherence to the Charter and, therefore, to the Statute of this
Court. These are the terms of the declaration:

“In the name of the People’s Republic of Bulgaria, I ... declare
that the People’s Republic of Bulgaria hereby accepts without
reserve the obligations arising from the United Nations Charter
and promises to observe them as inviolable from the date of her
accession to the United Nations.”

Before December 1955, when Bulgaria was admitted as a Member
of the United Nations, she had two clear courses open to her: to
refuse to become a Member of the United Nations, or to denounce
her Declaration of 1921. She chose to become a Member: she did
not denounce her Declaration. Whether the States at San Francisco
had the authority or not to enact Article 36 (5), Bulgaria ratified
what had been done there when she became a Member of the United
Nations without denouncing her Declaration.

I hold, therefore, that there is no reference to the dissolution of
the Permanent Court in Article 36, which gives a terminus ad quem

79
203 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

for declarations, and we are not entitled to read such a reference
into the Article. Further, we are not entitled to ask the question
whether the States at San Francisco were authorized or not to
enact a paragraph that might affect a State not present at San
Francisco ; in any event, Bulgaria ratified what had been done at
San Francisco and accepted all the obligations of the Statute
when she became a Member of the United Nations.

Reference must be made to two other contentions. Both of these
were stressed by the Bulgarian delegation and both appear to have
played some part in leading the Court to arrive at its conclusion.
One contention was that even if Article 36 (5) did at one time apply
to the Bulgarian Declaration, it could not be supposed that the
paragraph kept alive a dead declaration for ten years. So to read a
transitional section of the law would be to give an unreasonable
interpretation to it. The second contention was that this Court
could not possibly accept jurisdiction unless Bulgaria had speci-
fically and in clear terms accepted the jurisdiction of this Court.
Submission to jurisdiction must not be inferred.

The former contention was buttressed by a large number of
illustrations from the Russian theatre and from Scandinavian
folklore, but not by any sound submission in law. It was said that
a declaration could not wander about in the Land of Shades from
1945 to 1955 and then, by the touch of a magic wand, come to
life. It was argued further that if, between those years, Bulgaria
had been brought before this Court, she would have had a complete
answer, namely, that she was not a party to the Statute. If, there-
fore, in the year 1953 Bulgaria could not have been bound by her
Declaration of 1921, she could not be bound by it in 1957. These
arguments, however attractively and persuasively put before us,
cannot convince so long as Article 36 (5) stands, and their submission
was but another attempt not to interpret but to repeal the para-
graph. If the legislator chose to consider a declaration as binding
upon Members of the United Nations, whenever they might become
Members thereof, it might certainly happen, as it did in this case,
that a particular declaration would not be effective for a number
of years. In the present case, also, the mention of the period of ten
years is misleading. Not alone did the law keep the Declaration
alive, but the Bulgarian Government did so as well. For in 1947,
within two years of the enactment of the Statute, Bulgaria was
asking to become a Member of the United Nations. In 1948 she
made the solemn declaration I have cited above. She continued to
press for admission throughout the years until 1955. It was due to
political considerations, not dependent on Bulgaria, that she was
not admitted earlier. On the correct reading of the Statute, of which
she was continuously asking to become a party, her Declaration
was still alive and would become effective on the day she became
a Member. At least from 1947, Bulgaria was continuously breathing

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204 AERIAL INCIDENT (DISS. OPIN. OF JUDGE GOITEIN)

the breath of life into an ancient declaration, a declaration volun-
tarily made in 1921 and, according to the argument of the Bulgarian
delegation, still alive in 1946.

As has been said, at no time during those years did she denounce
her Declaration. In the light of these facts, it cannot be held that
her Declaration lived in a World of Shades. It lived a full life in
the Permanent Court for a quarter of a century, it lived in this
Court for the next ten years, by virtue of two very powerful life-
givers, the Statute and the People’s Republic of Bulgaria.

The second contention, that an acceptance of jurisdiction must
be explicit and not implicit, appears to have been accepted by this
Court in its Judgment. The draftsman of the Statute drew no such
distinction. He made provision for two kinds of declarations, those
made in the past, those to be made in the future. Future declarations
are dealt with in Article 36 (2), and past declarations in Article 36
(5). There is no particular sanctity given to the former nor less
validity to the latter. The only difference the legislator has drawn
between them is that the former are to be deposited with the
Secretary-General of the United Nations (Article 36 (4)), while the
latter, for obvious reasons, need not be. The effectiveness of the
two kinds of declarations is the same. New declarations made by
States prove that such States “recognize as compulsory ... the juris-
diction of the Court...” (Article 36 (2)). Old declarations made by
States are “deemed ... to be acceptances of the compulsory juris-
diction of the ... Court” (Article 36 (5)). It is to be noted that by
Article 92 of the Charter, all Members of the United Nations are
the wording is not “are deemed to be’’—parties to the Statute.
So that when Bulgaria became a Member, she became 1pso facto a
party to the Statute, and the single presumption made by the
Statute was that her voluntary declaration recognizing as com-
pulsory the jurisdiction of thé Permanent Court was a declaration
recognizing as compulsory the jurisdiction of this Court.

In-my opinion, the First Preliminary Objection of the Govern-
ment of Bulgaria should be overruled.

(Signed) GOITEIN.

81


MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 35

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this fifteenth day of June, one
thousand nine hundred and fifty-four, in five copies, one of which
will be placed in the archives of the Court and the others will be
transmitted to the Government of the Italian Republic, the Govern-
ment of the French Republic, the Government of the United King-
dom of Great Britain and Northern Ireland and the Government of
the United States of America, respectively.

(Signed) J. G. GUERRERO,

Vice-President.

(Signed) J. Lopez OLIVAN,
Registrar.

Sir Arnold McNarr, President, after voting for the Judgment,
made the following declaration :

I concur in the finding of the Court that it is unable to adjudicate
upon the two questions submitted to it by the Application of the
Italian Government, but the reasons which have led me to this
conclusion are different from those stated in the Judgment of the
Court. In my opinion, there is a fundamental defect in the Applica-
tion and in the constitution of these proceedings. The Court is asked
to adjudicate upon an Italian claim against Albania arising out of
an Albanian law of January 13th, 1945. Albania is therefore an
essential respondent. But these proceedings are not brought against
Albania, nor does the Application name Albania as a respondent,
although there is nothing in the Washington Statement which could
preclude the Italian Government from making Albania a respondent.
I cannot see how State A, desiring the Court to adjudicate upon its
claim against State B, can validly seise the Court of that claim
unless it makes State B a respondent to the proceedings—however
many other States may be respondents.

20
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 36

Judge Reap, availing himself of the right conferred on him
by Article 57 of the Statute, appends to the Judgment a statement
of his individual opinion.

Judge Levi CARNEIRO, availing himself of the right conferred
on him by Article 57 of the Statute, appends to the Judgment
a statement of his dissenting opinion.

(Initialled) J. G. G.
(Initialled) J. L. O.

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