156

JOINT DISSENTING OPINION
BY JUDGES SIR HERSCH LAUTERPACHT,
WELLINGTON KOO AND SIR PERCY SPENDER

Paragraph 5 of Article 36 of the Statute of this Court provides as
follows:

« Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in
accordance with their terms.”

On 29th July, 1921, Bulgaria accepted unconditionally for an
unlimited period the jurisdiction of the Permanent Court of Inter-
national Justice under Article 36, paragraph 2, of the Statute of
that Court. On 14th December, 1955, Bulgaria became a Member
of the United Nations and a party to the Statute of this Court.
According to paragraph 5 of Article 36, as cited above, the fol-
lowing two conditions must be fulfilled for the transfer to the
International Court of Justice of the declarations, of acceptance
made with respect to the Permanent Court: (1) the declarant State
must become a party to the Statute of the International Court of
Justice; (2) its declaration must be “still in force”, that is to say,
the period for which it has been made must not have expired. By
virtue of these conditions the obligations of the Declaration made
by Bulgaria on 20th July, 1921, were transferred to the Inter-
national Court of Justice on 14th December, 1955, when she became
a party to the Statute of the International Court of Justice. On
that day, paragraph 5 became applicable to Bulgaria. We are of
the view that, so far as that provision is concerned, the Court,
contrary to the conclusions of the First Preliminary Objection of
the Government of Bulgaria, is competent to adjudicate upon the
application of the Government of Israel brought before the Court
in reliance upon its declaration of acceptance of 17th October, 1956.

To the express conditions, as stated, of paragraph 5 of Article 36
of the Statute, the present Judgment of the Court adds two further
conditions: (1) the declarant State must have participated in the
Conference of San Francisco; (2) the declarant State must have
become a party to the Statute of this Court prior to the date of the
dissolution of the Permanent Court, namely, prior to 18th April,
1946. As neither of these two conditions were fulfilled in the case
of Bulgaria the Court has held that the obligations of her Declaration
of Acceptance made in 1921 were not transferred to the International
Court of Justice when in 1955 she became a party to its Statute and,

33
157 AERIAL INCIDENT (JOINT DISS. OPINION)

therefore, that the Court has no jurisdiction by reference to that
declaration. We regret that we are compelled to dissent from the
Judgment of the Court based on a text of an article of the Statute
thus amended and amplified.

*
* *

The First Preliminary Objection of the Government of Bulgaria as
advanced in the written Preliminary Objections and during the
oral hearing is based exclusively on the contention that the Bul-
garian Declaration of Acceptance of 1921 had finally and irrevo-
cably lapsed on 18th April, 1946, namely, on the date of the dis-
solution of the Permanent Court of International Justice, and that
it cannot therefore accurately be maintained that it was “still in
force” when Bulgaria became a party to the Statute by virtue of
her admission to the United Nations.

The principal argument put forward in this connection by the
Government of Bulgaria and admitted by the Court was that, as the
Bulgarian Declaration of Acceptance of 1921 was indissolubly
linked with the Statute of the Permanent Court, it ceased to exist
with the dissolution of that Court on 18th April, 1946, unless prior
to that date the declaring State had become a party to the Statute
of the International Court of Justice. According to that contention
the words ‘‘which are still in force” were intended to cover not the
question of the expiration of the time for which the Declaration
was made but an altogether different matter, namely, the contin-
gency of the dissolution of the Permanent Court. On that inter-
pretation the declarations of States which became parties to the
Statute subsequent to 18th April, 1946, ceased to be in force with
the result that subsequent to that date they were no longer covered
by paragraph 5 of Article 36. It is by reference to these asserted
effects of the dissolution of the Permanent Court that the Govern-
ment of Bulgaria has advanced the contention that the words
“which are still in force” do not possess the meaning normally
attributed to them. in relation to the validity of international
undertakings. Ordinarily these: words refer to instruments which
have not come to an end in consequence of either denunciation or
termination as the result of the lapse of the period provided in the
instrument.

Upon that text of paragraph 5 of Article 36 the principal conten-
tion of the Government of Bulgaria engrafted a new text. The
Government of Bulgaria contended, in effect, that the Court must
omit from the text of Article 36, paragraph 5, the words ‘which
are still in force” and replace them by other words. It was contended
that the Court must read the relevant part of Article 36, para-
graph 5, as follows: “Declarations made under Article 36 of the
Statute of the Permanent Court shall be deemed as between the

34
158 AERIAL INCIDENT (JOINT DISS. OPINION)

parties to the present Statute who have become parties thereto
prior to the dissolution of that Court to be acceptances of the
compulsory jurisdiction of the International Court of Justice...’’ We
are unable to accept that emendation of a clear provision of the
Statute. We are unable to do so for two reasons: The first is that the
interpretation thus advanced is contrary to the clear terms of para-
graph 5; the second is that that interpretation is contrary to the
manifest purpose of that provision. We will now examine separately
these two aspects of the interpretation of paragraph 5.

*
* *

The essential issue arising out of the First Preliminary Objection
of Bulgaria is whether the Bulgarian Declaration of 29th July, 1921,
accepting the compulsory jurisdiction of the Permanent Court of
International Justice is still valid and in force in the sense of
Article 36, paragraph 5, of the Statute of this Court. The issue is
one of determining the true meaning of that paragraph, both in its
own context and in that of the Statute and the Charter of the
United Nations.

While the conclusions of the present Opinion are based on the
text of Article 36, paragraph 5, it is useful to give an account, by
reference to the avowed purpose of that provision, of the historical
background of the creation of the International Court of Justice.

Although the establishment of the International Court of Justice
and the dissolution of the Permanent Court were two separate acts,
they were closely linked by the common intention to ensure, as far
as possible, the continuity of administration of international justice.
In its Resolution of April 18th, 1946, the Assembly of the League
of Nations made express reference to Article 92 of the Charter of
the United Nations providing for the creation of an International
Court of Justice as the principal judicial organ of the United
Nations and to the Resolution of the Preparatory Commission of
the United Nations of December 18th, 1945, which declared that it
would welcome the taking of appropriate steps by the League of
Nations for the purpose of dissolving the Permanent Court.

The dissolution of the Permanent Court was not an ordinary
act of liquidation whereby everything connected with that Court
disappeared as a consequence of the termination of its existence.
While various considerations urged the dissolution of the Perma-
nent Court and the creation of the International Court of Justice,
there was general agreement as to the substantial identity of these
two organs. In particular, every effort was made to secure conti-
nuity in the administration of international justice. In the Resolu-
tion adopted by the Permanent Court at its final session at The
Hague at the end of October 1945, it is stated: “The Permanent

35
159 AERIAL INCIDENT (JOINT DISS. OPINION)

Court of International Justice attaches the greatest importance to
the principle of continuity in the administration of international
justice. Accordingly, it desires to do everything possible to facilitate
the inauguration of the International Court of Justice, which was
referred to at the San Francisco Conference as the ‘successor’ to
the present Court.” (1.C.J. Yearbook, 1946-1947, p. 26.) It is not
without significance that the International Court of Justice was
inaugurated at The Hague on April 18th, 1946—one day before the
Resolution of the League of Nations dissolving the Permanent
Court took effect. Previously, the Report of Committee 1 of Com-
mission IV on Judicial Organization of the Conference of San
Francisco had stated as follows:

“The creation of the new Court will not break the chain of conti-
nuity with the past. Not only will the Statute of the new Court be
based upon the Statute of the old Court but this fact will be ex-
pressly set down in the Charter. In general, the new Court will
have the same organization as the old, and the provisions concerning
its jurisdiction will follow very closely those in the old Statute...
To make possible the use of precedents under the old Statute, the
same numbering of the Articles has been followed in the new
Statute.

In a sense, therefore, the new Court may be looked upon as the
successor to the old Court which is replaced. The succession will be
explicitly contemplated in some of the provisions of the new
Statute, notably in Article 36, paragraph 4 [which subsequently
became paragraph 5!, and Article 37.” (United Nations Conference
on International Organization, Documents, Vol. 13, p. 384.)

The passage quoted shows clearly that, although certain consider-
ations called for the creation of a new Court, that Court was to
be in substance a continuation of the Permanent Court. The formal
and, in effect, insignificant changes in the Statute of the new Court
were not to be permitted to stand in the way of the then existing
compulsory jurisdiction of the Permanent Court being taken over
by the International Court. It was specifically contemplated that
the continuity of the two Courts should be given expression by
recognizing the continuity of the compulsory jurisdiction at that
time existing. It would have been difficult to use more specific
terms: “The succession will be expressly contemplated...”

In fact, a study of the records of the Conference shows that the
determination to secure the continuity of the two Courts was
closely linked with the question of the compulsory jurisdiction of
the new Court in a manner which is directly relevant to the inter-
pretation of paragraph 5 of Article 36.

With regard to the question of the jurisdiction of the new Court,
the discussions in both the Washington Committee of Jurists and

36
160 AERIAL INCIDENT (JOINT DISS. OPINION)

Committee x of Commission IV of the San Francisco Conference
had disclosed a preponderance of sentiment in favour of compulsory
jurisdiction. The Committee of Jurists, considering the question of
compulsory jurisdiction to be of a political character, took no
decision on the subject. Instead, in its final report it presented
alternative texts—one leaving the acceptance of compulsory juris-
diction over legal disputes to a free decision of each State which is a
party to the Statute; the other providing for the immediate accep-
tance of such compulsory jurisdiction by all parties to the Statute.

At San Francisco, the First Committee of Commission IV had
these two texts before it, as well as some other proposals. These
proposals were, subject to some variations, all in favour of com-
pulsory jurisdiction of the New Court. The prolonged debate which
took place showed the existence of a preponderant volume of support
for the immediate recognition, throughout the membership of the
new international organization, of the principle of the compulsory
jurisdiction of the Court. The United Kingdom representative urged
the adoption of a compromise between the advocates and the
opponents of the principle of compulsory jurisdiction to be incor-
porated into the Statute. He stated: “If the Committee decides to
retain the optional clause, it could provide for the continuing
validity of existing adherences to it.’ A Sub-Committee was
created to “seek an acceptable formula”. It presented the existing
text of paragraph 5 of Article 36 of the Statute.

In fact, the two questions—the continuity of the existing com-
pulsory jurisdiction as provided in paragraph 5 of Article 36 (as well
as in Article 37) and the general question of compulsory juris-
diction—-were treated as two aspects of the same wider question
at the same meetings, in the same speeches, in the same reports.
This is clearly shown in the documents containing the Reports of
the Seventeenth Meeting of Committee IV/r (Documents of the
Conference, Vol. 13, pp. 246-250) and, in particular, in the Report
of the Sub-Committee of Committee IV/I on Article 36 (pp. 557-559).

It is thus clear that the purpose of paragraph 5 was to provide
“for the continuing validity of the existing adherences” to the
Optional Clause. Far from contemplating that any of the then
existing declarations of acceptance should disappear with the
dissolution of the Permanent Court, the authors of paragraph 5
had in mind the maintenance of the entire group of declarations of
acceptance which were still in force and in accordance with their
terms, irrespective of the dissolution of the Permanent Court:
That purpose was expressed in the widest possible terms intended
to eliminate any real or apparent legal difficulties: “They [the
Declarations] shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice.’’ Neither, as will be shown later in

37
x61 AERIAL INCIDENT (JOINT DISS. OPINION)

the present Opinion, is there any evidence to suggest that the
intention of the authors of paragraph 5 was to limit its operation
to States which participated in the Conference of San Francisco
and which became the original Members of the United Nations as
defined in Article 3 of the Charter. It is legitimate to hold that the
result of the compromise reached at the Conference and embodied
in paragraph 5 should not be whittled down by way of inter-
pretation of the clear and unqualified text of paragraph 5 of
Article 36 of the Statute.

oe
* *

We will now, in the first instance, examine as a matter of inter-
pretation—both in themselves and in their context—the relevant
words of paragraph 5 of Article 36 in relation to the contention of
Bulgaria that the words ‘which are still in force” in paragraph 5
refer to the existence of the Permanent Court and do not therefore
apply to Bulgaria’s Declaration which, it is asserted, ceased to
exist with the dissolution of the Permanent Court. It will be shown
later in this Opinion that the maintenance or severance of the
connection between the Declaration and the existence of the Per-
manent Court is irrelevant having regard to the clear object of
paragraph 5. We are at present concerned with the interpretation
of the terms in question as such. We consider that the words
“which are still in force”, when read in the context of the whole
paragraph, can only mean, and are intended to mean, the exclusion
of some fourteen declarations of acceptance of the compulsory
jurisdiction of the Permanent Court which had already expired and
the inclusion, irrespective of the continuance or dissolution of the
Permanent Court, of all the declarations the duration of which has
not expired. At the Conference of San Francisco there were present
a number of States that had in the past made Declarations of
Acceptance which, not having been renewed, had lapsed and were
therefore no longer in force. This applied, for instance, to the De-
clarations of China, Egypt, Ethiopia, France, Greece, Peru, Turkey
and Yugoslavia. It was clearly necessary, by inserting the expression
“which are still in force”, to exclude those States from the operation
of paragraph 5. That interpretation is supported by the French
text which is as authoritative as the English text and which is even
more clear and indisputable than the latter. The words “pour une
durée qui n’est pas encore expirée’’ (for a duration which has not yet
expired) must be regarded as determining the true meaning of the
English text in question. The fact that the Chinese, Russian and
Spanish texts of that paragraph approximate to the English text
does not invalidate or weaken the obvious meaning of the French
text. Those three texts were translated from the English version,
whereas the French text was that of one of the two official working
languages adopted at the San Francisco Conference. However, while

38
162 AERIAL INCIDENT (JOINT DISS. OPINION)

the French text removes any doubt whatsoever as to the meaning of
these words, there is in effect no reasonable doubt about them also
so far as the English text is concerned. There is no question here of
giving preference to the French text. Both texts have the same
meaning. The French text is no more than an accurate translation
of the English text as generally understood. Or, rather, in so far as
it appears that the final version was first formulated in the French
language, the English text is no more than an accurate translation
from the French.

The Government of Bulgaria contended that the first French
version adopted by Committee [V/1—‘‘déclarations qui sont encore
en vigueur” (declarations which are still in force)—was a faithful
translation of the English text; that it was changed at the request
of the French delegation into the present wording in French: “pour
une durée qui n’est pas encore expirée’”’ (for a duration which has not
yet expired); and that the French representative had explained in
the Committee that the changes which he proposed for insertion
did not relate to the substance but were intended to improve the
drafting. The account of these successive changes is correct. Yet it
provides no support for the argument in aid of which it is adduced.
For it must be noted that the French amendment was proposed
subsequent to the adoption of the text of the paragraph in question
and was approved without dissent at a subsequent meeting of the
Committee. There was no change in the substance of the paragraph
for the reason that the clear and unambiguous meaning of the
French amendment was understood by the whole Committee as
conveying the true sense of the English text as well. The Rappor-
teur of the First Committee, who made his report in the English
language, stated, after referring to the question of Article 36, as
follows: ““A new paragraph 4 [now paragraph 5] was inserted to
preserve declarations made under Article 36 of the old Statute for
periods of time which have not expired and to make these declarations
applicable to the jurisdiction of the new Court.” There seems to
have been no doubt in the minds of the members of the First Com-
mittee as to the meaning of the words “‘still in force” in the English
text. The French amendment was made indeed not with a view to
any change in substance but only for the purpose of clarification.

Admittedly, an international obligation may cease to exist for
reasons other than lapse of time; it may, for instance, terminate
because of the fulfilment of its object, denunciation in a manner
provided in the instrument, or its dissolution by mutual agreement.
However, those various modes of termination and extinction of
obligations are not covered by the accepted usage of the phrase
“which are still in force’. They are clearly not covered by its
French version which speaks of “a duration which has not yet
expired” (pour une durée qui n’est pas encore expirée). That meaning
of the expression “which are still in force” is so well established in

39
163 AERIAL INCIDENT (JOINT DISS. OPINION)

the English language that it was not deemed necessary in the
English wording to give a literal translation, word by word, of the
French version. Both phrases refer, in their ordinary connotation,
to the element of the expiration of time—not to termination as the
result of an extraneous event such as the dissolution of the Perma-
nent Court. There is no persuasive power in the.argument that these
expressions, although ordinarily referring to the element of time,
may, by dint of some ingenuity, be made to mean something
different from their ordinary connotation.

The same result follows when the terms in question are considered
by reference to their context in relation to other provisions of the
Charter on cognate matters. The words “still in force” in para-
graph 5 cannot, in the absence of express language to the contrary,
be interpreted in a sense different from that which they obviously
have in paragraph 1 of Article 36 and in Article 37 of the Statute—
both of which refer to treaties in force. Neither party has suggested
that the latter provisions refer to the validity of the treaties in
question by reference to any test other than lapse of time for which
they were concluded. We are unable to interpret these words
in a manner which is not only contrary to accepted usage in
the English text and the explicit wording in the French language
in which they were first formulated, but which also departs from
the obvious—and uncontroverted—meaning of these terms in the
passages, immediately following and preceding, of the Statute.

There is, for reasons which will be elaborated presently in more
detail, no merit in the contention that the declarations made under
paragraph 2 of Article 36 of the Statute of the Permanent Court
were indissolubly linked with that Statute and therefore inevitably
and finally lapsed with the dissolution of that Court, while the
treaties referred to in Article 37 were not so linked and therefore
their transfer to the jurisdiction of the International Court of
Justice survived the dissolution of the Permanent Court. The legal
authority, as a source of the jurisdiction of the Court, of the juris-
dictional provisions of any treaty whatsoever is grounded in para-
graph x of Article 36 of the Statute which provides that the juris-
diction of the present Court comprises ‘‘all matters specially
provided for... in treaties and conventions in force”. If, as the
result of the injection of extraneous conditions imto the clear
terms of paragraph 5 of Article 36, the dissolution of the Permanent
Court had an effect of putting an end to the declarations made
under paragraph 2 of Article 36 of the Statute of the Permanent
Court, the same consequences would follow with regard to the
treaties and conventions referred to in Article 37 of the present
Statute. Yet it is clear that no such consequences follow, and none
have been asserted to follow, in this respect in relation to any of
these provisions. In relation to all of them the expression “‘in force”
does not possess a meaning different from that ordinarily attached
to these terms, namely, as referring to the element of time.

40
164 AERIAL INCIDENT (JOINT DISS. OPINION)

*
% *+

We do not attach decisive importance to the question, with
regard to which the parties were sharply divided, of the date to
which the expression “which are still in force” must be attached.
That may be either the date on which the Charter entered into
force, namely, 24th October, 1945, or the date on which the
declarant State has become a party to the Statute of the Interna-
tional Court of Justice. It may be said, in support of the first
alternative, as urged by the Government of Israel, that normally a
legal instrument speaks as of the date on which it enters into force.
However, there is also substance in the view that that expression
ought, more properly, to be attached to the date on which the
particular State becomes bound by the obligations of the Statute.
Retroactive operation of a provision ought not to be assumed with-
out good cause; normally, it is the date of the State becoming a
party to the instrument which determines, in relation to that
State, the date of the commencement of the operation of its various
provisions.

We do not consider that any practical consequences, detrimental
to the contentions of either party, follow from the adoption of one
of these alternative dates in preference to another. In our view, the
validity of paragraph 5 did not lapse on the dissolution of the
Permanent Court; its purpose was to render that dissolution irre-
levant in the matter of the transfer of declarations; the intention
was that it should become operative as soon as a declarant State
becomes a party to the Statute—unless its declaration was no longer
in force by reason of having expired in conformity with the conclud-
ing passage of paragraph 5. Accordingly, the main contention of the
Government of Israel is not defeated if the expression ‘which are
still in force” is attached to the date on which Bulgaria became a
party to the Statute. On that date—or from that date—her Decla-
ration of 1921, saved from extinction by virtue of paragraph 5
of Article 36, became fully operative.

*
* *

Accordingly, we reach the conclusion that, having regard both
to the ordinary meaning of their language and their context, the
words “which are still in force” refer to the declarations them-
selves, namely, to a period of time, limited or unlimited, which has
not expired, regardless of any prospective or actual date of the dis-
solution of the Permanent Court. So long as the period of time of
declarations made under Article 36 of the Statute of the Permanent
Court still has to run at the time when the declarant State concerned
becomes a party to the Statute of the International Court of Justice,
those declarations fall within the purview of Article 36, paragraph 5,
of the new Statute and “shall be deemed to be acceptances of the

41
165 AERIAL INCIDENT (JOINT DISS. OPINION)

compulsory jurisdiction of the International Court for the period
which they still have to run and in accordance with their terms”.

+
* *

We will now examine the meaning of these concrete terms of
paragraph 5 by reference to the object of that provision. The juris-
diction of the International Court of Justice is established by the
Charter and the Statute of the Court. In law it could not have been,
and was not, affected in any way by the action of the Assembly
of the League of Nations in dissolving the Permanent Court any
more than the establishment of the new Court could have juridically
affected the jurisdiction of the Permanent Court. The creation of
the one and the termination of the other were two separate legal
acts. This was so although there was a close link of cause and effect
between them. For a period of time between the enactment of these
two measures the two institutions existed in law, though one was
not yet organized and the other already preparing for dissolution.
In the words of Sub-Committee IV/1/A, “‘since, however, it is im-
possible to contemplate the existence of the two World Courts,
each with their seat at The Hague ... it is clear that at the earliest
possible moment steps will have to be taken to bring the old Court
to an end...”, (United Nations Conference on International Organiza-
tions, Vol. 13, p. 521.)

It is thus clear that the provisions of Article 36, paragraph 5,
of the new Statute operate independently of the Permanent Court
and that such operation is not affected by its dissolution. As
already shown, the preoccupation of the San Francisco Committee
IV/z relating to that paragraph was to preserve as a whole the
declarations of acceptance of the compulsory jurisdiction of the
Permanent Court for the new Court. It was not concerned with
the question whether the Declarations would be valid when detached
from the Permanent Court. It was concerned with the drafting and
adoption of a formula which would provide for their continuing
validity.

The essential object of the Conference of San Francisco as
expressed by the First Committee was to provide ‘‘for the continuing
validity of the existing adherences to it” in a manner consistent
with international law. The fact of severance from the Permanent
Court of International Justice was taken for granted in respect of
declarations of acceptance. It was the attachment of the declarations
to the new Court which was considered essential and it was that
object which prompted the adoption of the formula provided in
paragraph 5 of Article 36 in order to ensure the continued validity
of those declarations. Nor was the date of severance from the
Permanent Court considered to be of importance. It is therefore
immaterial whether that date was October 24th, 1945, on which

42
166 AERIAL INCIDENT (JOINT DISS. OPINION)

the Charter of the United Nations providing for the establishment
of the International Court of Justice came into force, or the date
of April 18th, 1946, on which day the Permanent Court was for-
mally dissolved to take effect on April 19th. As a matter of fact,
the Permanent Court held its final session in October, 1945; all the
Judges resigned in January 1946. In view of the imminent disso-
lution of the League of Nations there was no machinery for the
election of new Judges. What is material in respect of the validity
of a declaration in relation to the present Court is whether it fulfils
the requirements of Article 36, paragraph 5. In other words, the
dissolution of the Permanent Court was not intended to have any
effect, and had none, upon the declarations of acceptance provided
for in Article 36, paragraph 5, so far as the present Court is concern-
ed. Whether these declarations, including the Bulgarian Declaration
of 1921, are applicable to the International Court of Justice or not
is to be determined solely in accordance with Article 36, paragraph 5,
of the new Statute—in which, by deliberate omission, there is no
reference to the dissolution of the Permanent Court.

In so far as its relation to the Permanent Court of International
Justice and its Statute is concerned, the Bulgarian Declaration
of 1921 ceased, both in fact and in the strict sense of the law, to
be applicable when that Court was dissolved on April 18th, 1946.
However, in relation to the International Court of Justice, the
dissolution of the Permanent Court was precisely the situation
envisaged by the framers of the new Statute as a reason for the
adoption of paragraph 5 and its full operation in consequence of
and subsequent to the dissolution of the Permanent Court. It was
for the purpose of preserving for the new Court the compulsory
jurisdiction which had been conferred upon the old Court and whose
period of validity had not expired that paragraph 5 was adopted
and inserted in Article 36 of the present Statute and that Article 37
was introduced. By virtue of paragraph 5 of Article 36 the decla-
rations of acceptance still in force of the States which became parties
to the Statute on 24th October, 1945, when the Charter came into
force, are deemed to be acceptances of the jurisdiction of the new
Court. However, the other declarations of acceptance which were
still in force were not to be extinguished and forgotten. Their
operation was suspended until such time as the declarant State
became a party to the Statute by being admitted to the United
Nations or by virtue of Article 93 (2) of the Charter. Bulgaria more
than once applied for admission to the United Nations. When
admitted on December 14th, 1955, she became on that day a party
to the Statute. Since the Bulgarian Declaration of 1921 has no time-
limit attached to it, it came on the same day within the purview of
Article 36, paragraph 5.

43
167 AERIAL INCIDENT (JOINT DISS. OPINION)

*
* *

There is a further consideration of a practical nature which
precludes the interpretation of the words “which are still in force”
as being directed to the contingency of the dissolution of the
Permanent Court. If that were the true interpretation of these
words, there would have existed a distinct possibility of the object
of paragraph 5 being frustrated. The States participating in the
Conference of San Francisco, having decided upon the creation of
a new Court, were anxious to see the old Court terminated. Of the
fifty-one States attending the San Francisco Conference, thirty-one
were parties to the old Statute and, with a few exceptions, were
Members of the League of Nations. There existed the possibility of
the League of Nations meeting and dissolving itself and the Per-
manent Court before the coming into force of the Charter of the
United Nations and the Statute of the new Court. Moreover, the
attainment of twenty-nine ratifications of the Charter on October
24th, 1945, including the ratifications of five permanent members
of the Security Council, could not have been foreseen with any
degree of certainty. It might have been achieved at a later date,
possibly after the dissolution of the League and of the old Court.
In either eventuality, Article 36, paragraph 5, would have become
a dead letter. For in that case, according to the contention of
Bulgaria, all the declarations would have lapsed with the dissolution
of the Permanent Court and the extinction of the old Statute, and
would no longer be in force.

* * *

The intention of paragraph 5 of Article 36 was to eliminate the
difficulties connected with the impending dissolution of the Per-
manent Court and likely to interfere with the continued validity of
the declarations. The Bulgarian contention, accepted by the Court,
introduced these considerations as an integral part of Article 36.
The unqualified language of paragraph 5 suggests that any real or
apparent legal difficulty ensuing from the fact that the declarations
were annexed to the Statute of the Permanent Court and any other
legal difficulties, real or apparent, which did or did not occur to the
authors of paragraph 5 were met by the comprehensive provision
laying down that these declarations shall be deemed, as between the
parties to the present Statute, to be acceptances of the compulsory
jurisdiction of the new Court. It is exactly some such obstacles
which the authors of Article 36 wished to neutralize. This was the
purpose of paragraph 5. They said in effect: Whatever legal ob-
stacles there may be, these declarations, provided that their period
of validity has not expired—that is provided that they are still in
force on the day of the entry of the Charter into force or on the day
on which the declarant State becomes a party to the Statute—shall

44
168 AERIAL INCIDENT (JOINT DISS. OPINION)

continue in respect of the International Court of Justice.

The intention of paragraph 5 which used the words ‘shall be
deemed ... to be acceptances” is to cut clear through any cobweb of
legal complications and problems which might arise in this connec-
tion. It is not the intention of paragraph 5 to recognize any decisive
effect of these difficulties by a form of words—‘‘still in force’’—
which normally mean something else. It is otherwise incompre-
hensible why if the words “‘still in force” were intended to mean
only ‘so long as the Permanent Court has not been dissolved”’ these
latter words should not have been used instead of the words “‘still
in force” which have a clear and different meaning of their own,
namely, as referring to termination as the result of lapse of time.
Accordingly, to attach decisive importance to the effect of the disso-
lution of the Permanent Court amounts not only to re-writing
paragraph 5; it amounts to adding to it an extraneous condition
which it was the purpose of that Article to exclude and to disregard.
When it is therefore asserted that the effect of the dissolution of
the Permanent Court was to terminate the declarations of accept-
ance existing on 19th April, 1946, the correct answer to any such
assertion is that that was exactly the result which paragraph 5
was intended to prevent.

The governing principle underlying paragraph 5 is that of
automatic succession of the International Court of Justice in respect
of the engagements undertaken by reference to the Statute of the
Permanent Court, the dissolution of which was clearly envisaged and
anticipated. We have cited the passage in question from the report
of Committee IV/1. We therefore consider that any argument
based on the dissolution of the Permanent Court and the lapse of
its Statute to which the Declaration of 1921 was attached is irre-
levant either in connection with the interpretation of the words
“which are still in force’’ or otherwise. There is, for the same reason,
no basis for the argument that the object of paragraph 5 being to
ensure the continuity of the jurisdiction of the Court, it cannot be
regarded as intended to resuscitate the declarations which had
lapsed as the result of the dissolution of the Permanent Court.
The object of paragraph 5, clearly expressed in the course of the
preparatory work as cited, was precisely to prevent these decla-
tations from lapsing with finality for all purposes. Undoubtedly,
they lapsed so far as the Permanent Court was concerned; they did
not lapse so far as the present Court is concerned. The object of
paragraph 5 was to secure succession in the sphere of the obligatory
jurisdiction of the Court.

Admittedly, the declaration of Bulgaria was based on the Statute
of the Permanent Court. Admittedly also, the Statute ceased to
exist and to be binding upon Bulgaria when the Permanent Court
was dissolved, and the Statute of the present Court was not binding
upon her unless and until she became a party to its Statute.

45
169 AERIAL INCIDENT (JOINT DISS. OPINION)

However, upon that event, her declaration became subject to the
operation of paragraph 5 which maintained the potential force of
the declarations in relation to the States covered by the plain
terms of that provision, namely, in relation to the States becoming
parties to the Statute. Consequently, when in 1955 Bulgaria became
a party to the Statute by becoming a Member of the United Nations,
paragraph 5 became fully operative in relation to her. Its purpose
was not extinguished through the dissolution of the Permanent
Court; it was to prevent the dissolution of that Court from becoming
a destructive factor in relation to the declarations made under its
Statute. Its purpose was to safeguard the existing compulsory
jurisdiction in relation to the present Court notwithstanding the
event clearly envisaged by the authors of paragraph 5, namely,
the dissolution of the Permanent Court. It was exactly that anti-
cipated event which prompted paragraph 5.

There is little persuasive power in the suggestion that paragraph 5
was intended to prevent that result only on condition that the
States concerned became parties to the Statute prior to 18th April,
1946. There is no evidence in support of that proposition and no
satisfactory explanation of any such intention calculated to reduce
the period of the operation of paragraph 5 and to render it vague
by introducing the element of uncertainty connected with the date
of the dissolution of the Permanent Court. At the time when the
text of the Charter was established it was difficult to foresee when
the dissolution would take place.

Accordingly, we do not consider it necessary to pursue the
arguments propounded, in expressive language, with regard to the
possibility of reviving the Bulgarian Declaration of 1921 whose
life, it was asserted, was terminated as the result of the dissolution
of the Permanent Court. As stated, this was so only subject to the
operation of paragraph 5. It may be added that there are obvious
limits to the analogy between the death of a person and the cessation
of the operation of a legal provision. Nothing can revive the dead; a
short paragraph in a treaty can instill new and vigorous life into a
treaty or provision of it whose operation is suspended or which had
ceased to exist. Some treaties, for instance, are automatically
dissolved as the result of war; they are resuscitated by a single
provision of the Treaty of Peace either immediately or under certain
conditions to be fulfilled in the future. Paragraph 5 intends the
same result with regard to declarations which might have been
temporarily inoperative in consequence of the contemplated event
of the dissolution of the Permanent Court and the termination of its
Statute. Legal intercourse between States—as between individuals
—abounds. in examples of a contractual provision being dormant,
and its operation suspended, pending the accomplishment of an
event by an act of a party or some extraneous occurrence.

46
170 AERIAL INCIDENT (JOINT DISS. OPINION)

It is therefore of no consequence—in view of the specific provi-
sions of Article 36, paragraph 5—whether the acceptance by
Bulgaria of the Statute and therefore necessarily of Article 36,
paragraph 5, is to be considered, in regard to the Bulgarian Declar-
ation of 1921, as an act of ratification of a declaration previously
made but subject to ratification, or as a renewal of a former declar-
ation, or as an act equivalent to the making of a new declaration in
the form and with the content of that of 1921 without following the
requisite formalities of a declaration of acceptance. In whatever
way the matter is viewed there is no doubt as to the clear expression
of the sovereign will of Bulgaria—as given through her voluntary
acceptance of the Statute, including Article 36, paragraph 5—an
expression of will which supplied the consensual basis of a declar-
ation of acceptance of the compulsory jurisdiction of the new Court.
That act of acceptance, it may be added, is an implementation of
the solemn Declaration made by Bulgaria on gth October, 1948,
of the acceptance of the obligations—of all the obligations—of the
Charter of the United Nations. That Declaration reads, in part, as
follows: ‘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 its
accession to the United Nations” (United Nations Treaty Series,
Vol. 223, p. 33). There could be no clearer expression of the will of
Bulgaria to accept and observe the obligations of the Charter of
the United Nations and of the Statute. Later in this Opinion we
propose to examine in more detail the question of consent on the
part of Bulgaria in connection with the alternative basis of the
Judgment of the Court, namely, that the operation of paragraph 5
is limited to the original Members of the United Nations.

%
* *

As stated we are unable to uphold the main Bulgarian contention
according to which the dissolution of the Permanent Court had the
effect of finally and irrevocably putting an end to the declarations
attached to its Statute. Accordingly, we do not consider it necessary
to examine, in detail, the general grounds by reference to which it
was maintained that certain additional conditions must be implied
in paragraph 5. Thus it was argued that unless the operation of
paragraph 5 is limited to States who have become parties to the
Statute prior to the dissolution of the Court, the Conference of
San Francisco would have to be considered as having attempted
a measure which it was legally quite incompetent to attempt and
powerless to achieve: That measure would, it was contended, separate
the binding force of the declaration from the Statute to which it was

47
171 AERIAL INCIDENT (JOINT DISS. OPINION)

legally attached by an indissoluble link and which had ceased to
exist with the dissolution of the Permanent Court. It was further
argued that by doing so the Conference of San Francisco would be
attempting another drastic step which it was not legally entitled
or competent to undertake, namely, to destroy the consensual
character, grounded in the Statute, of the declarations of acceptance.
We can find no merit in that line of argument.

There is a deceptive element of simplification in some such notion
as that the Conference of San Francisco decreed certain measures
or that it had no power to decree them—for instance, to deprive
the declarations of acceptance of their consensual character or to
attach them to something which had ceased to exist. The only step
which the Conference did take and could take in this connection
was to establish a text. That text did not bind any State. Any
signatory of the Charter was free to refuse to ratify it. Any State
subsequently contemplating membership of the United Nations
was free to treat it as an offer which it was at liberty to accept or
to reject. The validity and binding force of the Charter and any
of its provisions are due not to the decision of the Conference of
San Francisco but to the very will of the States which subscribed
voluntarily to its obligations in 1945 and in subsequent years. Like
any other Member of the United Nations, Bulgaria, in adhering to
the Charter, of her own free will, accepted its obligations, including
those of paragraph 5 of Article 36 of the Statute. In doing so, she
supplied that very consensual link which, it is asserted, is essential
to the declarations of the Optional Clause. She also supplied the
consensual link necessary for the modification—however slight in
the present case—of her Declaration of Acceptance.

The Statute could have provided that all the declarations, when-
ever made, which had already expired, should be considered as being
revived and as continuing for another twenty years. This would.
have been an unusual and drastic provision. If a State had consented
to it by adhering to the Charter, that would have been the inevitable
result of its membership of the United Nations. The consensual
link would have been supplied. Paragraph 5 of Article 36, like any
other provision of the Statute, is a provision of a consensual
character. There is no basis for the suggestion that it is essential
for the structure of Article 36 that the consensual link be established
only through paragraph 2, and not through any other paragraph.
Thus, paragraph 1 of Article 36 establishes the consensual basis of
the jurisdiction of the Court with regard to “‘all cases which the
parties refer to it and on matters specially provided for in the Charter
of the United Nations or in treaties and conventions in force”. In
a different sphere, Article 37 provides the consensual link with
regard to the succession of the International Court of Justice to the
jurisdiction of either the Permanent Court or any other tribunal

48
172 AERIAL INCIDENT (JOINT DISS. OPINION)

established by the League of Nations.

Admittedly, once the text of the Charter had been established
by a decision of the Conference, the States which subsequently
adhered to it had no option but to agree to all its provisions.
However, this does not mean that they did not of their own volition
agree, in consideration of the overwhelming advantages of Mem-
bership of the United Nations, to the various Articles of the Charter
and the Statute. According to established and uniform international
practice, a State adhering to an international instrument agrees—
unless otherwise expressly provided by the instrument—to accept
it as it stands. Moreover, as already stated, there was no innovation
in the provision to which they thus elected to agree. It was, on any
reasonable estimate, no more than a piece of machinery in the
sphere of succession of international judicial organization. Members
of the United Nations agreed that their declarations in respect of
the Statute of the Permanent Court should continue, notwith-
standing the dissolution of that Court, in respect of what was
essentially and substantially the same Court. Paragraph 5 expressly
laid down that the declarations shall continue “for the period for
which they still have to run and in accordance with their terms”.
Except for their transference to the International Court of Justice,
they were not modified. When compared with many other provisions
of the Charter restricting the sovereignty of its Members, as en-
shrined in traditional international law, this was a provision of dis-
tinctly limited scope. It is sufficient to compare it, for instance,
with the Articles of the Charter which lay down that Members are
under a legal obligation to comply with decisions of the Security
Council or that they must not resort to force, even if not amounting
to war and even against States which are not Members of the
United Nations, for the settlement of disputes. There is therefore,
also from this point of view, no persuasive power in the argument
advanced by Bulgaria and claiming that radical—or, indeed,
absurd—legal consequences would result, on that account, from the
interpretation of paragraph 5 in accordance with its clear terms.

*
%* *

For the reasons stated we cannot admit the contention of Bulgaria
that the object and the basis of the Declaration of 1921 disappeared.
for the reason that the Permanent Court was replaced by what was
essentially an identical judicial organ. Both the object and the
basis of the Declaration remained the same; they were covered, in
addition, by the clearly manifested purpose of the authors of the
Statute to secure the continuity of the compulsory jurisdiction of
the Court. Apart from considerations of a formal character, which
it was the very purpose of paragraph 5 to eliminate, what was in

49
173 AERIAL INCIDENT (JOINT DISS. OPINION)

law and in fact the actual consequence of the dissolution of the
Permanent Court in relation to the basis and the object of the
Bulgarian Declaration of 1921 and of similar declarations? In so
far as the Statute of the Permanent Court was the basis of the
Declaration of 1021, that basis was hardly affected by the adoption
of anew Statute which for all practical purposes was indistinguishable
from that of the Permanent Court. The difference in the object of
the two declarations as related to the Permanent Court and the
International Court of Justice was, if possible, even more nominal:
the object of both declarations was exactly the same, namely, to
undertake obligations of compulsory judicial settlement with regard
to what were, for all practical purposes, identical organs—an
identity which corresponded to the articulate and frequently
expressed purpose of the Conference to secure the continuity of
international jurisdiction in the matter of obligatory judicial
settlement.

We attach importance to upholding the spirit of the jurisprudence
of the Court on the subject of succession in international organiza-
tion. In the Advisory Opinion concerning the International Status
of South-West Africa, the Court was confronted with the contention
that the disappearance of the League of Nations, the organ charged
with the supervision of the system of Mandates, put an end to the
Mandate and the international obligations of the Mandatory. The
Court rejected that contention. It held that the United Nations
succeeded to the supervisory functions of the League of Nations.
It did so although the Charter contained no express provision to
that effect and although the United Nations and the League of
Nations were different institutions. In the present case, most
explicit and unqualified provision is made for the transfer of
jurisdiction to what on any reasonable estimate must be regarded
as an identical organ. It is also for that additional reason that we
are unable to admit the accuracy of the contention that the object
and the basis of the Bulgarian Declaration of 192r disappeared
with the dissolution of the Permanent Court.

*k
* *

These, then, are the two governing factors in the situation: the
first is that the expression ‘which are still in force”, when inter-
preted in its ordinary and accepted meaning, refers to termination
as the result of expiration of time, and not to any extraneous event
such as the dissolution of the Permanent Court. The second is that
it is the very object of paragraph 5 to prevent the dissolution of
the Permanent Court from exercising a destructive effect upon the
existing declarations. The combined result of these two factors was,
in the first instance, to maintain these declarations immediately and
automatically with regard to the original Members of the United

50
174 AERIAL INCIDENT (JOINT DISS, OPINION)

Nations. Secondly, the result was to preserve them potentially
with regard to the other declaring States until the time—a reason-
able time—when they become parties to the Statute. The question
of the reasonableness of the period involved is examined later on in
this Opinion. In the present context it is sufficient to state that
after the dissolution of the Permanent Court paragraph 5 did not
cease to be operative in relation to the potential parties to the
Statute. Neither, for the purposes of that paragraph, did their decla-
tations. It was of the essence of the purpose of paragraph 5 to
prevent any such result. The comprehensive language of that
provision—‘“‘shall be deemed... to be acceptances’’—renders it
useless to speculate on the exact nature of that continuing
obligation whose operation remained in suspense so long as the
declarant State did not become a party to the Statute. The expres-
sion “legal fiction” may or may not be helpful in that connection;
so may the notion of a merely dormant obligation. The language
and purpose of paragraph 5 render unnecessary any refinement of
speculation on the subject.

It is of direct interest to the issue here examined to note the
manner in which, at the beginning of 1947, a writer, who is regarded
as a most authoritative commentator of the Statute, who was a
Judge of the Permanent Court and who was present on behalf of
that Court both in the Committee of Jurists at Washington and in
the relevant Committee of the Conference of San Francisco, under-
stood the operation of paragraph 5 of Article 36. Professor Manley
Hudson stated, at that time, without alluding to any exception,
that “under paragraph 5 of Article 36 previous declarations under
Article 36 are to be deemed to be still in force, to the extent that
they have not expired according to their terms, ‘as between the
parties to the present Statute’”’ (American Journal of International
Law, Vol. 41 (1947), p. 10). He then enumerated the countries
whose previous declarations were in force “down to the end of
1946”. The enumeration included Thailand. There was no sugges-
tion that the dissolution of the Permanent Court in April 1946
brought about the termination of the declaration of Thailand,
which in fact did not become a member of the United Nations till
December 1946. Professor Hudson, after mentioning some other
States whose declarations expired during 1946 and were subse-
quently renewed, then referred to the declaration of Sweden which
expired ‘‘during the year’’—namely, as he stated, on August 16th,
1946—and was not renewed. Again there was no suggestion that
the declaration of Sweden, who had not become a- party to the
Statute until 1947, expired simultaneously with the dissolution of
the Permanent Court. It expired on 16th August, 1946.

51
175 AERIAL INCIDENT (JOINT DISS. OPINION)

+
* *

Our conclusion is that we cannot, in the matter of the meaning
of the terms ‘‘which are still in force”, uphold an interpretation
which departs from the accepted and ordinary use of terms; which
is at variance with the admitted sense of corresponding terms in
other provisions, immediately following or preceding, of the Sta-
tute; which introduces into paragraph 5 an extraneous factor which
it was the very purpose of that provision to exclude; and which, if
accepted, might have frustrated or considerably reduced the effect
of paragraph 5. We hold that the terms in question refer not to the
dissolution of the Permanent Court but to the validity, in point of
time, of the declarations of acceptance on the date of the entry
into force of the Charter or of the declarant State becoming a party
to the Statute. For these reasons we must reject the First Prelimi-
nary Objection of Bulgaria in so far as it is based on that particular
submission.

The second main ground by reference to which the First Preli-
minary Objection is upheld is that paragraph 5 of Article 36 applies
only to original Members of the United Nations. Apart from one
passing reference, in the course of the oral argument, in connec-
tion with the exclusion of former enemy States from the opera-
tion of paragraph 5, that particular ground was not invoked by
Bulgaria. It was not argued by the Parties either in the written
or in the oral proceedings.

There is nothing in paragraph 5, or in the preparatory work of
the Conference of San Francisco, or in general principles of inter-
national law, or in the various provisions of the Charter to sub-
stantiate the view that that paragraph applies only to original
Members of the United Nations in the sense of Article 3 of the
Charter. Unless otherwise expressly provided, the provisions of the
Charter apply in equal measure to every State which becomes a
Member of the United Nations. In relation to Members of the
United Nations, whatever may be the date of their adherence, no
provision of the Charter can be res inter altos acta so as to bind
some but not other Members. The proposition that the rights and
obligations of the Charter vary in this respect as between the
various Members of the United Nations is contrary to the entire
structure of the Charter and the relevant principles, generally
accepted, of international law on the subject. In practice, any such
proposition, if accepted, would lead to serious consequences.

52
176 AERIAL INCIDENT (JOINT DISS. OPINION)

Neither can the suggestion be accepted that paragraph 5 does no
more than to give expression to an agreement reached inter se
between the States which participated in the Conference of San
Francisco. The Charter nowhere embodies particular agreements
between particular Members. Any such method would be wholly
alien to its purpose and character. The provisions of the Charter are
of general application. The same applies to the Statute, which is
part of the Charter.

*
*% *%

In our opinion there is no legal basis for the assertion that, while
the original Members of the United Nations could bind themselves in
the matter of the transfer of the declarations under paragraph 5 of
Article 36 of the Statute, they could not bind other States subse-
quently adhering to the Charter. It is of the very essence of the Charter
that its provisions—all its provisions—bind States which adhere to
the Charter subsequent to its coming into force. If Article 36 had
provided unconditionally for the obligatory jurisdiction of the
Court—and not merely for the maintenance of existing declarations
in accordance with their terms—it would be binding not only upon
original Members but also upon all States subsequently adhering.
It would not be ves inter alios acta in relation to those States. That
proposition is too fundamental to require elaboration. We consider
it imperative that in deciding any particular controversy, which
may be of a passing character, no countenance should be given to
general propositions such as that there is a difference, with regard
to any obligations of the Charter, between original Members and
others; or that any provision of the Charter can be ves tuter alios
acta in relation to States subsequently adhering; or that the obliga-
tions of a judicial settlement must be interpreted by reference to
standards more exacting than the interpretation of other obliga-
tions of the Charter.

There is not a single provision of the Charter which registers an
agreement inter se between a limited number of Members of the
United Nations. The Charter, in a number of articles—such as
Articles 43 (2) and (3), 52-54, 64, 77 (2)—-provides for the possibility
of such agreements. But these agreements, while contemplated or
permitted by the Charter, do not form part thereof. The provisions
of the Charter are provisions, applicable to all, of a generai legisla-
tive treaty which, it was expected, would in due course embrace
all members of the international community. It cannot be admitted
that a treaty of that character was used as an instrument for
embodying private agreements of limited scope and duration
between a limited number of Members of the United Nations.

53
177 AERIAL INCIDENT (JOINT DISS. OPINION)

As it was not known at the time of the signature of the Charter
how many signatories would ratify it prior to the dissolution of the
Permanent Court, it was possible that the number of States event-
ually bound by what is asserted to be a particular agreement
embodied in paragraph 5 would be even smaller than that appear-
ing on the face of that provision. Moreover, if the view is accepted
that the operation of paragraph 5 is confined to States which
ratified the Charter prior to the dissolution of the Permanent
Court, the result would have been not only that that was a par-
ticular agreement between a limited number of Members of the
United Nations; the result would have also been that that was an
agreement valid and operative for a period of six months only—the
period between October 1945 and April 1946. We do not find it
possible to admit that a truncated agreement of that kind, between
a limited number of States, can form part of a Charter laying down
the foundations of a universal community of States organized in
the United Nations.

There was no question at the Conference of San Francisco of the
participant States imposing upon future Members of the United
Nations any obligations against their will. What the authors of the
Charter were entitled to do, and what in fact they did, was to
provide that it should be a condition of membership—whether on
the part of the original Members or of States subsequently adhering
to the Charter—that the existing declarations in the matter of the
Optional Clause should continue in accordance with their terms. All
Members of the United Nations, whatever the date of their mem-
bership, were to be placed in this respect on an equal footing. The
equality of rights and obligations is, unless otherwise expressly
provided, a fundamental feature of the Charter. The act of becoming
a Member of the United Nations, and thus a party to the Statute,
was a consensual act of voluntary choice. But it was an act involv-
ing automatic consequences in respect of paragraph 5 of Article 36
—as well as in respect of other obligations of the Charter.

These considerations are specially pertinent when it is borne in
mind that the authors of the Charter attached particular impor-
tance to using accurate terminology in designating the entities to
which the provisions of the Charter were intended to apply. Great
care was taken to distinguish, whenever necessary, between “ori-
ginal Members” and “signatory Members” on the one hand and
Members of the United Nations” on the other. For instance,
Article 3 of the Charter contains a definition of what are “original
Members’’. Article 110 (4) refers explicitly both to “States signa-
tory to the present Charter” and ‘original Members of the United
Nations”. Article 107 refers to a State which is ‘a signatory to the
present Charter’; Article 110 (1) again refers to ‘‘signatory States’’.
It would have been easy for the authors of paragraph 5—-who, it is

54
178 AERIAL INCIDENT (JOINT DISS. OPINION)

asserted, were fully cognizant of the realities of the situation—to
use the words ‘original Members of the United Nations” or
“States signatory to the present Charter’ instead of “parties to the
present Statute”. They did not do so. The inference, which is not a
strained one, is that they considered these asserted realities to be
irrelevant. The Court cannot speculate on the question whether
the signatories of the Charter did or did not foresee the long chain
of political events which delayed the admission of a number of
States to the United Nations. Neither, subject to any considera-
tions of a reasonable application of the Statute, can the Court
engage in surmises as to the duration of the delay which the signa-
tories may or may not have considered proper in this connection.

The words “parties to the Statute’? occur constantly in the
Statute—to mention only Articles 5 (1), 35, 36 (2), 37. All these
Articles refer to all the parties to the Statute at any time. It is not
permissible to interpret them in relation to paragraph 5 of Article 36,
as meaning ‘‘present parties to the present Statute’. It will there-
fore be noted that to admit the contention that the operation of
paragraph 5 is limited to original Members of the United Nations
would involve yet another alteration of the wording of that provision.
It would involve a substantial change in the existing text of
paragraph 5. The words “‘as between the parties to the present
Statute’ would have to be altered to read ‘‘as between the present
parties to the present Statute”’.

* * *

Admittedly, unlike in the case of the original Members of the
United Nations, the operation of paragraph 5 in relation to States
not represented at the Conference could not be immediate and
auiomatic. That did not signify that those States were excluded
from its operation. What it meant was that their declarations would
be transferred to the [International Court of Justice only when they
became parties to the Statute. Professor Manley Hudson, to whom
reference is made in a previous part of the present Opinion, drew
attention to this aspect of the question when writing early in 1946.
He pointed out that “the new paragraph 5 was inserted with the
purpose of preserving some of the jurisdiction of the Permanent
Court for the new Court”. After giving the names of the eleven
States which had deposited ratifications of the Charter by 24th Oc-
tober, 1945, and whose declarations made under Article 36 were
in force, he continued: ‘“‘ ‘As between the parties to the Statute’,
the provision applies to them.’’ He then gave the names of ten other
States who participated in the Conference and to whose declarations
“the provision will similarly apply from the dates of their deposits
of ratifications’”’. He added: ‘‘On the other hand, declarations made

55
179 AERIAL INCIDENT (JOINT DISS. OPINION)

by the following States under Article 36, which were also in force
on October 24th, 1945, will not be covered by the provision unless
these States become parties to the new Statute: Bulgaria, Finland,
Ireland, Portugal, Siam, Sweden, and Switzerland” (American
Journal of International Law, Vol. 40 (1946), p. 34)—a statement
showing clearly that in the view of the learned writer those States
were to come within the ambit of the operation of paragraph 5 as
soon as they became parties to the new Statute.

*
* *

It is of interest to note here a statement on the subject by the
Australian representative at the First Committee of Commission IV
of the Conference of San Francisco—a statement which, unless
read carefully, may give the impression of lending some support
to the view that the operation of paragraph 5 was intended to be
limited to original Members of the United Nations. His contribution
to the discussion was preceded by those of the representatives of
Canada and the United Kingdom. The first, in referring to the
proposed paragraph 5, said: ‘‘In view of the new paragraph quoted
above, as soon as States sign the Charter, the great majority of
them would be automatically under the compulsory jurisdiction of
the Court because of existing declarations” (United Nations Con-
ference on International Organization, Documents, Vol. 13, pp.
247-248). According to the statement of the representative of the
United Kingdom, “‘some forty States would thereby become auto-
matically subject to the compulsory jurisdiction of the Court”
(ibid., p. 249). The representative of Australia then suggested a
correction of that estimated number of States which would become
automatically bound by the compromise effected through para-
graph 5. In the words of the Record of the Committee: “He desired
to call attention to the fact that not forty but about twenty States
would be automatically bound as the result of the compromise.
In this connection he pointed out that of the fifty-one States that
have adhered to the Optional Clause, three had ceased to be in-
dependent States, seventeen were not represented at the Conference,
and about ten of the declarations of other States had expired”
(ibid., p. 266). That statement accurately confined the automatic
and immediate operation of paragraph 5 to the States represented
at the Conference and ratifying the Charter. The declarations of
other States were to be transferred to this Court as soon as they
became parties to its Statute. In their case there would be no
automatic and immediate transfer of declarations.

It would thus appear that the preparatory work of the Conference,
far from casting doubt upon the applicability of paragraph 5 to

56
180 AERIAL INCIDENT (JOINT DISS. OPINION)

States not represented at the Conference, confirms its operation in
relation to them as soon as they become parties to the Statute.

However, the records of the Conference show more directly—in
a manner which leaves no room for doubt—that the operation of
paragraph 5 of Article 36, as weil as that of Article 37, was not
intended to be limited to States participating in the Conference of
San Francisco. It is sufficient to quote here literally the full text
of the relevant part of the Report of the Rapporteur of the Main
Committee IV/1 (United Nations Conference on International
Organizations, Documents, Vol. 13, pp. 384-385). The text of that
Report speaks for itself. The Rapporteur said with regard to
Article 37:

‘‘(a) It is provided in Article 37 of the draft Statute that where
treaties or conventions in force contain provisions for the reference
of disputes to the old Court such provisions shall be deemed, as
between the members of the Organization, to be applicable to
the new Court.”

It will thus be seen that with regard to Article 37 its operation was
to be automatic, ‘‘as between the members of the Organization”,
with no distinction being made between the date of their adherence
to the United Nations. With regard to paragraph 5 of Article 36,
the language of the Report is even more specific:

“(b) It is provided in paragraph 4 [now paragraph 5] of Article 36
of the draft Statute that declarations made under Article 36 of
the old Statute and still in force shall be deemed as between
parties to the new Statute to apply in accordance with their terms
to the compulsory jurisdiction of the new Court.”

Nothing could express more clearly the intention that paragraph 5
of Article 36 should be operative “as between the parties to the
new Statute”, which can only mean States which become Parties
to the new Statute at any time. |

The Rapporteur, after having thus examined the position of the
Members of the United Nations and of the Parties to the Statute,
proceeded as follows:

“(c) Acceptances of the jurisdiction of the old Court over dis-
putes arising between parties to the new Statute and other States,
or between other States, should also be covered in some way, and
it seems desirable that negotiations should be initiated with a
view to agreement that such acceptances will apply to the juris-
diction of the new Court. This matter cannot be dealt with in
the Charter or the Statute, but it may later be possible for the
General Assembly to facilitate such negotiations.”

Accordingly, there seems to be no room for doubt that the only
acceptances, with regard to which future negotiation and agreement

57
I8I AERIAL INCIDENT (JOINT DISS. OPINION)

were required were those relating to ‘disputes arising between parties
to the new Statute and other States, or between other States”. No
such negotiations and agreements were required with regard to
acceptances in cases of disputes when both States were to become
parties to the Statute. A State which became a party to the Statute
ceased to belong to the category of “other States,” and no nego-
tiations with that State were required. Article 36, paragraph 5,
became directly applicable to it.

*
* *

The final Report, as here literally cited, is—in our view—con-
clusive on the subject. However, it is instructive for its fuller under-
standing to give some details of the history of the drafting of the
provision in question. In particular, it is useful to draw attention
to the successive drafts of Article 37, which was intended to serve
a general purpose similar to that underlying paragraph 5 of Arti-
cle 36.

The First Committee of Commission IV in examining the problem
of transferring to the present Court the provisions relating to the
reference to the Permanent Court in the treaties and conventions
in force at first adopted the following text of Article 37 on June 7th,
1945:

“Whenever a treaty or convention in force between the parties
to this Statute provides for reference of a matter to a tribunal
to have been instituted by the League of Nations, or to the Per-
manent Court of International Justice established by the Protocol
of December 16, 1920, amended September 14, 1920, the matter
shall be referred to the International Court of Justice.”

However, on the recommendation of the Advisory Committee of
Jurists of the San Francisco Conference the First Committee
adopted, on June 14th, 1945, a revised text, which constitutes
Article 37 of the present Statute and which is as: follows:

“Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League
of Nations, or to the Permanent Court of International Justice,
the matter shall as between the parties to the present Statute be
referred to the International Court of Justice.”

The considerations which led to the adoption of the recommended
revision are explained in the Minute of the First Committee as
follows: |

“The Advisory Committee of Jurists in considering Article 37
recommended changes whereby a treaty or convention which refers

a matter to a tribunal instituted by the League of Nations or to
the Permanent Court of International Justice should be construed,

58
182 AERIAL INCIDENT (JOINT DISS. OPINION)

as between the parties of the present Statute, to refer the matter
to the International Court of Justice. The Article as originally
approved by the Committee provided that only treaties between
parties to the Statute should be so construed. The Committee
agreed that the elimination of this limitation was desirable since
Article 37 of the Statute now envisages all treaties, which will
make it unnecessary to negotiate a new treaty in order to refer a
case to the Court.” (Zhid., p. 460.)

It was thus made clear that, so far as parties to the Statute were
concerned, no additional negotiations and agreements were re-
quired. The negotiations with a view to agreement which were at
first thought to be indispensable in regard to the subject-matter of
Article 37 were made unnecessary by the adoption of precisely the
same formula—‘‘shall, as between the parties to the Statute, be...” —
for Article 37 as is embodied in Article 36, paragraph 5, with regard
to the existing declarations of acceptance. All this confirms the
view that paragraph 5 of Article 36 was intended to apply to all
parties to the Statute, non-signatory as well as signatory States,
without need of negotiation for any special agreement. In relation
to both provisions the requirement of consent is supplied by the
State concerned accepting membership of the United Nations—an
event which makes it a party to the Statute—and by its formal
undertaking to observe the obligations of the Charter, of which the
Statute is an integral part.

*
* *

The case of Thailand is directly instructive on the issue here
examined as well as with regard to the asserted effect of the dis-
solution of the Permanent Court. For reasons which are not relevant
in the present context, Thailand did not participate in the Confer-
ence of San Francisco. On 3rd May, 1940, she had renewed for a
period of ten years her previous declaration of acceptance. She
did not become a Member of the United Nations till 16th December,
1946, that is to say, seven months after the dissolution of the
Permanent Court. According to the view which excludes non-
participating States from the operation of paragraph 5, the Declar-
ation of Thailand, made in 1940 for ten years, became a dead
letter on the date of the dissolution of the Permanent Court,
namely, on 18th April, 1946. This was not the view of Thailand.
She considered herself bound by.the Declaration of 1940. Accord-
ingly, she did not deem it necessary to take any action prior to the
expiration of the full period of ten years as laid down in her Declara-
tion of 1940. When that period expired, she renewed, as from
3rd May, 1950, her acceptance for another ten years. According to
the view which restricts the operation of paragraph 5 to the original

59
183 AERIAL INCIDENT (JOINT DISS. OPINION)

Members of the United Nations, that attitude of the Government
of Thailand was due to a mistaken estimate of the legal situation.
However, it was an attitude based on a view which met with no
contradiction. Moreover, it is significant that the action taken by
Thailand was undertaken regardless of any existing controversy.
It was an attitude which, having regard to the absence of other
State practice bearing directly on the subject, is of particular
weight. We have already referred to the analysis undertaken by
Professor Hudson and confirming that Thailand—together with
some other States who were not original Members of the United
Nations—was covered by the provisions of paragraph 5 of Article 36.

In this connection reference must be made to the assertion—
which involves an important issue of interpretation—that the object
of Article 36, paragraph 5, must be limited to original Members of
the United Nations on account of the realities which confronted the
States participating at the Conference of San Francisco and of
which they must be presumed to have had knowledge. It is asserted
that some such limitation must be implied in that paragraph for
the reason that while the original Members were able to assess their
own situation as it existed at that time and their future attitude to
the obligatory jurisdiction of the Court, they were wholly unable to
do so with regard to States which might adhere in the future.

We find it difficult to inderstand what effect any uncertainty as
to the future position of those States could have in the matter of
continuing, on a footing of equality with other declarant States,
their obligations under their declarations of acceptance. It will be
noted that, by virtue of Article 93 of the Charter, those States
could not subsequently become parties to the Statute without the
concurrence of the Security Council and of the General Assembly.

Undoubtedly, the task of interpretation must not be confined to
a literal interpretation of the bare letter of a provision. When a
treaty is not clear the Court is entitled and bound to take into
consideration the circumstances surrounding its adoption. How-
ever, we consider that it is not within the province of interpreta-
tion to re-write a treaty, by inserting into it extraneous conditions,
in reliance on realities of which, it is asserted, the parties were fully
cognizant and to which they were in the position to give effect by a
form of words of utmost brevity if in fact that had been their
intention. They could have done it in the present case by saying
in paragraph 5, instead of ‘‘as between the parties to the present
Statute’, “as between the original Members of the United Nations”.

60
184 AERIAL INCIDENT (JOINT DISS. OPINION)

This they did not do and, clearly, they did not wish to do. Their
intention, as shown at the beginning of this Opinion, was to main-
tain the maximum—not the minimum—of existing declarations.
It is particularly appropriate in this connection to draw attention
to the principle of interpretation to which the Court gave emphatic
expression in the Advisory Opinion on the Acquisition of Polish
Nationality: “The Court’s task is clearly defined. Having before
it a clause which leaves little to be desired in the nature of clearness,
it is bound to apply this clause as it stands, without considering
whether other provisions might with advantage have been added
to or substituted for it.” (P.C_I.J., Series B, No. 7, p. 20.)

Moreover, a closer examination of the realities in question shows
that the problem with which, it is asserted, the authors of the
Statute were confronted hardly existed. What were these States
whose uncertain status and disposition in the distant future made
it imperative to exclude them—not by the normal process of direct
exclusion but by the indirect method of silence in relation to an
otherwise comprehensive provision—from the operation of para-
graph 5 of Article 36? These States were nine in number: Bulgaria,
Estonia, Finland, Ireland, Latvia, Portugal, Sweden, Switzerland
and Thailand. All other declaring States whose declarations had
not expired participated in the Conference of San Francisco and
became subsequently original Members of the United Nations. As
to the nine States referred to above it may be said, in the first
instance, that their future attitudes on the question were irrelevant
if, contrary to our view, the binding force of their declarations
lapsed in any case with the dissolution of the Permanent Court.

However, it is desirable to consider the asserted position of un-
certainty with regard to the nine States referred to above. In all
the circumstances, of which the Court must take judicial notice,
the position of Estonia and Latvia created no problem. The declar-
ations of Ireland, Sweden and Switzerland were due to expire
before long and they did in fact expire before those States became
parties to the Statute of the International Court of Justice. There
thus remained three States—-Bulgaria, Portugal and Thailand—
whose future position may have given rise to uncertainty. With
regard to these States, any dangers of their premature adherence
to the Statute or any kind of uncertainty were fully met by the
fact that in order to become parties to the Statute they would have
either had to be admitted to the United Nations or comply with the
conditions determined by the Security Council and the General
Assembly in accordance with Article 93 (2) of the Charter. In our
view there is no room for an interpretation which alters the terms
of paragraph 5 and reduces its effectiveness by reference to realities
of such small compass.

61
185 AERIAL INCIDENT (JOINT DISS. OPINION)

These considerations also supply an answer to the contention—
referred to by Counsel for Bulgaria and confirmed by the records
of the Conference of San Francisco—that the draftsmen of the
Charter intended to exclude enemy States from the benefits of
immediate access to the new Court. However, that intention was
not to pursue a policy of permanent ostracism. As shown in the
“transitional security arrangements” of Article 107 of the Charter,
the intention was to prevent ex-enemy States from obstructing
measures connected with the liquidation of the war. To achieve
that object, it is not necessary to maintain the much wider, and
inaccurate, proposition to the effect that the operation of para-
graph 5 was intended to be limited to the original Members of. the
United Nations. So far as the International Court of Justice was
concerned, the object of excluding ex-enemy States from immediate
participation in the Court was achieved by laying down that the
transfer of the declarations shall operate only in relation to the
“parties to the present Statute’’—a condition which could not be
fulfilled without the concurrence, in due course, of the Security
Council and the General Assembly. Any notion, said to have been
entertained in 1945, of permanent ostracism of enemy States became
a matter of the past when, in 1947, the applications of a number
of them were considered by the Security Council and the General
Assembly. On that occasion the stated reason for which the appli-
cation of Bulgaria was opposed by some Governments was not that
she was an ex-enemy State but, inter alia, that she had failed to
comply with her obligations, contracted in the Treaty of Peace of
1947, to respect human rights and fundamental freedoms. (Security
Council, Official Records, Second Year, 1947, No. 81, p. 2132.)

* +

Reference may be made in this connection to the Resolution 171
(II) adopted by the General Assembly on 14th November, 1947. In
that Resolution the General Assembly ‘‘draws the attention of the
States which have not yet accepted the compulsory jurisdiction of
the Court in accordance with Article 36, paragraphs 2 and 5, of the
Statute, to the desirability of the greatest possible number of
States accepting this jurisdiction with as few reservations as
possible” (Resolution 171 (II)). The italicized words “have not vet
accepted”’ are of particular interest. They suggest that in November
1947, in the view of the General Assembly, the force of paragraph 5
had not yet been spent; on that view paragraph 5 had still some
application notwithstanding the dissolution of the Permanent
Court. It was in fact acted upon by Thailand when the time came
to renew her declaration. It may be added that this part of the
Resolution is also of interest inasmuch as it is addressed not to
Members of the United Nations, or to States Members, but to

62
186 AERIAL INCIDENT (JOINT DISS. OPINION)

States—an indication that in this matter action by reference to
paragraphs 2 and 5 of Article 36 was not limited to original Members
or even existing Member States. It is clear from the terms of that
Resolution, when read in its entirety, as well as from the general
practice of the United Nations, that particular care was taken in
the choice of terminology in this respect—namely, whether a
Resolution is addressed to a State, or a Member State, or a Signatory.

*
* *

The preceding considerations show that having regard to its
wording and the history of its adoption, as well as to applicable
principles of international law, the operation of paragraph 5 of
Article 36 is not limited to the declarations of those States which
participated in the Conference and which became parties to the
Statute when the Charter entered into force on 24th October, 1945.
It is applicable to all declarations which were made under Article 36
of the Statute of the Permanent Court and the time-limit of which
by their own terms ratione temporis, had not expired. It is applicable
to all declarations which, their duration not having been terminated
by expiration of time, “are still in force” at the time when the
declarant State by its own free will becomes a party to the new
Statute. For these reasons, we feel bound to dissent from the
Judgment of the Court in so far as it adopts the view that para-
graph 5 of Article 36 applies only to original Members of the
United Nations and does not therefore apply to the Bulgarian
Declaration of 1921.

*
* *

For the reasons stated, we are unable to accept the view that
paragraph 5 of Article 36 is inapplicable to Bulgaria. We are unable
to accept that view either by reference to the ground, relied upon
by Bulgaria, that the dissolution of the Permanent Court finally
and irrevocably deprived her Declaration of 1921 of all legal force,
or by reference to the ground, not invoked by Bulgaria and not
argued by the Parties, that paragraph 5 of Article 36 applies only
to the original Members of the United Nations. In our opinion that
provision of the Statute clearly applies to Bulgaria. By adhering
to the Charter and, in addition, by formally and expressly declaring
her intention and determination to respect all the obligations of
the Charter—of which the Statute is an integral part—Bulgaria
gave her consent to the jurisdiction of the Court as confirmed and
continued by that provision.

63
187 AERIAL INCIDENT (JOINT DISS. OPINION)

The jurisdiction of the Court is based on the consent of States.
That principle is too firmly established in the jurisprudence of the
Court and in international law in general to require confirmation
by reference to precedents or otherwise. Their authority is beyond
challenge. However, such precedents are altogether irrelevant in the
present case. The required consent was given by Bulgaria when,
on becoming a Member of the United Nations, she accepted the
obligations of Article 36, paragraph 5, together with other obligations
of the Charter and of the Statute. There is no suggestion that,
without her consent, she should be considered bound by her Decla-
ration of 1921 in relation to the International Court of Justice.

If—as is our view in the present case—paragraph 5 of Article 36,
when interpreted in accordance with the ordinary meaning of its
terms and its clear object as intended by its authors, must be held
to be applicable to Bulgaria, her consent is directly established
by her adherence to the Charter. It was not necessary that that
consent should be given yet another and additional expression. No
such additional consent was required with regard to the numerous
and more substantial obligations of the Charter by which Bulgaria
became bound on becoming a Member of the United Nations. We
are unable to accept the view that obligations of judicial settlement
of disputes on the basis of international law are so drastic and
exceptional as to necessitate such double consent—especially with
regard to a provision which, far from creating a new obligation
either in substance or in duration, is limited to the transfer, to
what is essentially and indisputably an identical judicial organ, of
existing declarations ‘‘for the period which they still have to run
and in accordance with their terms”. The meaning and the purport
of paragraph 5 of Article 36 must not be confused with paragraph 2
of the same Article which embodies the system of the Optional
Clause. The two paragraphs cover two different situations. Para-
graph 5, which maintains in force declarations already made,
operates automatically by virtue of the declarant State becoming
a party to the Statute; no additional consent is required in that
case. Paragraph 2 requires consent expressly declared.

Accordingly, we consider that it is irrelevant in this connection
to invoke the unchallenged principle that the jurisdiction of the
Court must be invariably based.on the consent of the parties and
that it must not be presumed. The requirement of consent cannot
be allowed to degenerate into a negation of consent or, what is the
same thing, into a requirement of double consent, namely, of
confirmation of consent already given. The Washington Committee
of Jurists, mentioned at the beginning of this Opinion, envisaged

64
188 AERIAL INCIDENT (JOINT DISS. OPINION)

the necessity of providing, by way of some special clause, for the
maintenance of existing declarations. One of its sub-Committees
proposed that ‘provision should be made at the San Francisco
Conference for a special agreement for continuing these acceptances
in force for the purpose of this Statute’ (United Nations Conference
on International Organization, Vol. 14, pp. 288-289). That suggested
provision assumed at the Conference of San Francisco the form of
the existing paragraph 5 of Article 36. It is difficult to imagine that,
in addition to that provision, paragraph 5 envisaged the necessity
of a further, and more specific, agreement.

+
* *

We must now consider whether there is some other legal ground,
independent of the interpretation of the terms of paragraph 5 of
Article 36, which places an obstacle to its application to Bulgaria
in the circumstances of the present case, In particular, having
regard to some considerations underlying the Judgment of the
Court, it is necessary to consider whether that provision, whose
meaning in itself leaves no room for doubt, can be applied consist-
ently with the requirement of reasonableness. Can it be so applied
in relation to an application brought before the Court twelve years
after the entry into force of the Charter and eleven years after the
dissolution of the Permanent Court and the establishment of the
International Court of Justice? To what extent can it accurately
be maintained that it is that factor of reasonableness which must
decisively influence the interpretation of paragraph 5 of Article 36
in the sense that unless that provision is held to have been intended
to apply only to the original Members of the United Nations there
was a danger that other potential parties to the Statute might be
in a position to act upon paragraph 5 at an unreasonably distant
future far removed from the establishment of the International
Court of Justice?

In applying a legal provision, the Court must not ignore circum-
stances of fact relevant to the test of reasonableness. Such facts, if
relevant, might defeat the claim of the applicant Government to a
remedy by the Court although there is nothing in paragraph 5 of
Article 36 as such to defeat it. However, we have been unable,
after full consideration, to come to the conclusion that in the pre-
sent case any such circumstances are sufficiently weighty to deprive
the applicant State of a remedy to which it may otherwise be
entitled.

With regard to the duration of the operation of paragraph 5, it
would appear from that provision and the reasons which prompted

65
189 AERIAL INCIDENT (JOINT DISS. OPINION)

its adoption that it was intended to be of a transitional character.
Undoubtedly, there is inherent in the very notion of transition a
certain limitation of time. Thus it would be unreasonable to main-
tain that the period of transition from the Permanent Court to the
International Court should last half a century. To contend that
would be as unreasonable as to maintain that it should last only
six months, for instance, for the period between the coming into
force of the Charter in October 1945 and the dissolution of the
Permanent Court in April 1946. The question bearing on the effect
of the lapse of half a century can be disregarded for the reason
that the extravagance of an affirmative answer is due largely to the
exaggeration inherent in the question.

It is consistent with enlightened practice and principle to apply
the test of reasonableness to the interpretation of international
instruments—a test which follows from the ever present duty of
States to act in good faith. However, the test of reasonableness
must itself be applied in a reasonable way; it must not be applied
by reference to contingencies which are in themselves of a mani-
festly exaggerated character; it must not be applied by reference to
examples bordering on absurdity. If a State invokes a provision,
fully grounded in the treaty, after twelve years from the date of its
adoption, it is contrary to the true test of reasonableness to defeat
its claim on the ground that it would be wholly unreasonable for it
to invoke the treaty after fifty or one hundred years. If the manner
in which a State invokes a treaty in a particular case is reasonable,
it is unreasonable to suggest that the interpretation on which it
relies might in extreme cases produce unreasonable results. The
Court is not confronted with a situation arising in 1995. It is faced
with a situation which arose in 1957 when Israel invoked the
jurisdiction of the Court. That situation is determined by the entry
into force of the Charter and the Statute in 1945; by the Bulgarian
application for admission to the United Nations in 1947; by her
solemn declarations, made in 1948 and subsequently reiterated,
accepting all the obligations of the Charter and the Statute; and
by her admission to the United Nations in 1955. It is true that the
Bulgarian Declaration of 1921 is now the last declaration to which
there apply the provisions of paragraph 5 of Article 36. But this
cannot properly be a reason for refusing to give effect to it. The
periods involved are only twelve years since the Charter came into
force and only two years since Bulgaria became a Member of the
United Nations. International jurisprudence—including that of the
Court itself—-shows instances of application of provisions of treaties
concluded in the more distant past.

The Bulgarian Government at no time contended that the
Declaration of 1921 had escaped its notice—though it explained

66
190 AERIAL INCIDENT (JOINT DISS. OPINION)

that it deemed it unnecessary to take steps for releasing itself of
the operation, if any, of the Declaration.

*
* *

It may appear singular, at first sight, that the Bulgarian Declara-
tion of 1921, which had ceased to be operative in relation to the
Permanent Court of International Justice on the dissolution of
that Court, should be deemed to be “still in force” ten years after
the entry into force of the Charter—when Bulgaria became a
Member of the United Nations and zpso facto a party to the Statute
of the International Court. However, the delay in its admission was
due to external circumstances. In view of the true sense of the
phrase “which are still in force”, that delay is not relevant to the
question of the applicability of Article 36, paragraph 5. That pro-
vision is clearly not subject to any time-limit. Bulgaria first applied
for membership in 1947. The international situation prevented her
early admission and delayed her becoming a party to the new
Statute. This is an extrinsic cause which cannot affect the legal
force of Article 36, paragraph 5. If Bulgaria had become a Member
of the United Nations at the end of 1946, or in 1947, or even 1950,
the transitional provisions of the clear terms of paragraph 5 would
fully apply to her. We acknowledge that there is room for the view
that on and after 1950 the transition may be held to have been
accomplished; that by that time, with the exception of declara-
tions of indefinite duration, practically all declarations covered
by paragraph 5 had lapsed or been replaced by new declarations;
and that the continuity of the Permanent Court was no longer an
object to be fulfilled. To that extent it might be contended, without
obvious exaggeration, that it is unreasonable to resuscitate the
operation of paragraph 5 after that period.

On the other hand, it is of importance not to exaggerate the
degree of unreasonableness involved in the contrary solution. There
is nothing manifestly unreasonable in itself in invoking in 1956 the
Bulgarian Declaration of 192I—a declaration which in 1945 was
given a new potential lease of life in the Statute of the Court and
which was confirmed by the entry of Bulgaria into the United
Nations in 1955 and, in the preceding years, by her repeated affir-
mation of the intention to be bound by the resulting obligations.
Moreover—and this appears to be a material consideration with
regard to that aspect of the case—it seems to us inadmissible that
a State should be deprived of its rights under an international
instrument for the reason that its object has been substantially,
though not fully, realized. So far as that State is concerned, it is
ats interest in that instrument which constitutes its main object.

67
I9I AERIAL INCIDENT (JOINT DISS. OPINION)

It matters little to that State—in the present case the applicant
State—that most or all other parties have already benefited from
it and acted upon it. Unless the interested State has been guilty of
negligence or bad faith in pursuing its legal rights, it is entitled to
expect that the treaty will be given effect.

For similar reasons there is an obvious objection to introducing
into the interpretation of paragraph 5 the extraneous factors of the
dissolution ot the Permanent Court and of the limitation of its
scope to the original signatories of the Charter and justifying such
interpretation by asserting that its results constitute all that the
framers of the Statute could have reasonably hoped to have achiev-
ed. In our view the reasonable expectation is one which results
from the interpretation of paragraph 5 in accordance with its terms
without adding extraneous considerations. There is a lack of cogency
in the suggestion that the result of the interpretation thus adopted
by way of introduction of extraneous elements is, today, to exclude
in effect only a small number of States—perhaps merely one—
from the operation of that provision. The legal right of a State
must not be disregarded for the reason that it is the right of one
State only. Moreover, as already stated, for all the draftsmen of
the Statute knew, the effect of adopting as part of paragraph 5
extraneous tests, such as the dissolution of the Permanent Court
or the requirement of original membership of the United Nations,
might have been such as to exclude a considerable number of
States.

Above all, in judging the reasonableness or otherwise of the
reliance by a State on the terms of an international instrument,
some regard must be had to the nature of the right invoked. It is
one thing for the Court to cut down, by reference to the test of
reasonableness, a substantive claim which causes unfair hardship
or which, through an abusive reliance upon a legal right, puts in
jeopardy important interests of the defendant State. It is another
thing to deny, by reference to the test of reasonableness, a demand,
based on a valid instrument, that the principal judicial organ of the
United Nations should adjudicate upon a controversy by reference
to international law. A State ought not to be deemed to be acting
improperly if in reliance—even if it be rigid reliance—upon a valid
instrument it asks the Court to declare its competence to administer
international law. It is only in most exceptional circumstances that
a demand, based on a valid treaty, for the exercise of the primary
function of the Court to administer justice based on law can be
held to be unreasonable. These exceptional circumstances may
include the operation of the rule of extinctive prescription after a

68
192 AERIAL INCIDENT (JOINT DISS. OPINION)

prolonged period of inaction on the part of the applicant State.
No such ground has been invoked here.

In the matter of its jurisdiction it is fundamental that only the
legitimate rights of the parties can supply a basis for the decision
of the Court. In this matter we feel bound to adhere to the past
jurisprudence of the Court which, while consistently treating the
element of consent as the decisive factor, has applied the test of
reasonableness as a motive not for defeating but for upholding its
jurisdiction. It did so, early in the history of the Permanent Court,
when in the Mavrommatis Palestine Concessions case it considered
that its jurisdiction was not defeated by the fact that the negotia-
tions, required by the Mandate, had taken place not between Gov-
ernments but between a Government and the interested private
party (P.C.I.J., Series A, No. 2, pp. 13-15). It did so, on a number
of occasions, when it interpreted consent to its competence to decide
whether there was a breach of international obligation as implying
consent to its competence to award compensation for any breach
of international obligation (case of Certain German interests in
Polish Upper Silesia, P.C.I.J., Series A, No. 7, pp. 23, 25; Corfu
Channel case, I.C.J. Reports 1949, p. 26). It frequently acted in the
same way when it interpreted the conduct and the pleadings of the
parties as constituting implied consent to its jurisdiction (Rights
of Minorities in Polish Upper Silesia, P.C.I.J., Series A, No. 15,
pp. 23, 24). We see no reason for departing in the present case from
that practice of the Court.

We deem it necessary to examine a contention which, although
not referred to in the Judgment of the Court, has acquired some
slight prominence and which bears on the interpretation of para-
graph 5. That contention is that the words in the concluding passage
of paragraph 5—‘‘for the period for which they still have to run’’—
imply that that paragraph covers only those declarations which
contain a time-limit of their validity and that therefore it does not
embrace declarations, such as that of Bulgaria, whose duration is
not definitely circumscribed by a limited period of time. While
that assertion did not appear either in the oral submissions or in the
Conclusions of Bulgaria, it found some place in her written Preli-
minary Objections. From the point of view of purely conceptual
interpretation—for it is on that basis that the argument rests—the
form of words of the concluding passage as cited may cover declara-

69
193 AERIAL INCIDENT (JOINT DISS. OPINION)

tions of indefinite duration; for, in strict logic, these have still to
run for such indefinite time as they may last. However, in our view
these words can have only one meaning, namely, that which is
conveyed by the clear purpose which underlay them: in providing
for the transfer to the present Court of the existing declarations,
the Statute cannot be presumed to have intended that they should
continue regardless of the period for which they have still to run.
They were to be maintained “for the period which they still have
to run and in accordance with their terms”. If there had been an
intention to exclude from the purview of paragraph 5 declarations
of unlimited duration, that intention could have been expressed
by the addition, at the end of the paragraph, of a simple form of
words: ‘This provision does not apply to declarations which
contain no time-limit of their duration.”

It is not necessary to examine further this particular contention
except to the extent of drawing attention to its consequences. Its
result would have been, in 1945, to cut by one half the number of
States otherwise contemplated by a provision intended to secure
the maintenance of the existing jurisdiction of the Court. It would
have eliminated declarations which contain no provision for denun-
ciation as well as those which, although originally containing a
provision for possible denunciation, had, by their terms, been
transformed into declarations without a time-limit. The latter were
declarations of a considerable number of States, such as those of
the United Kingdom and Iran which, although expressed initially
for a fixed number of years, contained a clause whereby subsequent
to that period the declarations were to run for an indefinite period,
until denounced. After the expiration of the initial period, the dura-
tion of these declarations was indefinite. According to the conten-
tion here examined they, too, would have to be considered as
having remained outside the operation of paragraph 5 and there-
fore extinguished as the result of the dissolution of the Permanent
Court. Thus the declaration of Iran of znd October, 1930, was for
a period of six years and, after expiration of that period, until
notification of abrogation. If the interpretation excluding declara-
tions of indefinite duration from the operation of paragraph 5
were correct, then the Iranian Declaration was of no validity when
on 26th May, 1951, the Government of the United Kingdom lodged
with this Court an application invoking that declaration in the case
of the Anglo-Ivanian Oil Company. No such ground of invalidity
was advanced by the Iranian Government or referred to by the
Court.

Moreover, if the interpretation contended for had been adopted
by the Court in the present case, its result would be to invalidate,
as from the date of the Judgment of the Court, the existing declara-
tions of a number of States—such as Colombia, Haiti, Nicaragua
and Uruguay.

70
194 AERIAL INCIDENT (JOINT DISS. OPINION)

It would be difficult to comprehend the ratio legis of the provision
in question so unexpectedly expressed by verbal indirection. It is
hardly probable that the occasion for maintaining the jurisdiction
of the Court was used by the authors of the Statute as an oppor-
tunity for freeing a number of States of what has been described
as the unreasonable burden of declarations of unlimited duration
and for cutting down by one half the number of declarations which
would otherwise naturally be in the contemplation of paragraph 5.

It will be noted that the effect of the exclusion from the scope of
the operation of paragraph 5 of declarations which are in form or in
substance of unlimited duration as well as declarations of States
which did not participate in the Conference of San Francisco would
be to reduce to seven the number of declarations covered by that
paragraph. These would be the declarations of Argentina, Belgium,
Bolivia, Brazil, Denmark, the Netherlands and Norway. This does
not seem to be an acceptable interpretation of a provision the inten-
tion of which was to maintain the jurisdiction of the Permanent
Court as a significant measure of compromise between the obliga-
tory and the voluntary jurisdiction of the Court.

For the foregoing reasons we are of the opinion that the First
Preliminary Objection of Bulgaria must be rejected and that the
Court should have proceeded to examine and to adjudicate upon
the other Preliminary Objections.

(Signed) Hersch LAUTERPACHT.
(Signed) WELLINGTON Koo.
(Signed) Percy C. SPENDER.

71