COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU

27 JUILLET 1955

(ISRAEL c. BULGARIE)
EXCEPTIONS PRELIMINAIRES

ARRÊT DU 26 MAI 1959

1959

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF

JULY 27th, 1955

(ISRAEL v. BULGARIA)
PRELIMINARY OBJECTIONS

JUDGMENT OF MAY 26th, 1959
Le présent arrét doit étre cité comme suit:
« Affaire relative à l'incident aérien du 27 juillet 1955
(Israël c. Bulgarie), Exceptions préliminaires,
Arrêt du 26 mai 1959: C. I. J. Recueil 1959, p. 127. »

This Judgment should be cited as follows:

“Case concerning the Aerial Incident of July 27th, 1955
(Israel v. Bulgaria), Preliminary Objections,
Judgment of May 26th, 1959: I.C.J. Reports 1959, p. 127.”

N° de vente: 206
Sales number

127

INTERNATIONAL COURT OF JUSTICE

1959
May 26th
General List:
No. 35

YEAR 1959

May 26th, 1959

CASE CONCERNING THE
AERIAL INCIDENT OF
JULY 27th, 1955

(ISRAEL v. BULGARIA)
PRELIMINARY OBJECTIONS

Compulsory jurisdiction of International Court of Justice. —Declara-
tions accepting compulsory jurisdiction of Permanent Court of Inter-
national Justice.—Article 36, paragraph 5, of Statute of Court.—
Determination of States to which Article 36, paragraph 5, applies.—
Conditions required for application of Article 36, paragraph 5.—Lapse
of a declaration following dissolution of Permanent Court.

JUDGMENT

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN:
judges BASDEVANT, HACKWORTH, WINIARSKI, BADAWI,
ARMAND-UGoN, KOjEVNIKOV, Sir Hersch LAUTERPACHT,
MORENO QUINTANA, CORDOVA, WELLINGTON Koo, SPIRO-
POULOS, Sir Percy SPENDER; Judges ad hoc GOITEIN and
ZouREK; Deputy-Registrar GARNIER-COIGNET.
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 128

In the case concerning the Aerial Incident of July 27th, 1955,

between

the State of Israel,
represented by

Mr. Shabtai Rosenne, Legal Adviser to the Ministry for Foreign
Affairs,

as Agent,

assisted by

Mr. M. Shneerson, Minister Plenipotentiary, Embassy of Israel,
Paris,

Mr. J. H. Lazarus, Assistant to the Attorney-General, Ministry
of Justice,

Mr. F. Landau, Assistant to the State-Attorney, Ministry of

_ Justice,

Mr. T. Meron, Assistant to the Legal Adviser, Ministry for
Foreign Affairs,

as Counsel,

and

the People’s Republic of Bulgaria,
represented by
Dr. Nissim Mévorah, Professor of Civil Law at the University of
Sofia, Adviser to the Ministry for Foreign Affairs,
as Agent,
assisted by
M. Evguéni Kamenov, Envoy Extraordinary and Minister
Plenipotentiary of Bulgaria in France,
as Counsel,
and by
M. Pierre Cot, Professeur agrégé of the Faculties of Law of France,
and |

Me Marc Jacquier, of the Bar of the Paris Court of Appeal,
as Advocates,

THE COURT,
composed as above,

delivers the following Judgment :

On October 16th, 1957, the Minister of Israel to the Netherlands
handed to the Registrar an Application by the Government of Israel,

5
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 129

dated October gth, 1957, instituting proceedings before the Court
against the Government of the People’s Republic of Bulgaria with
regard to the destruction, on July 27th, 1955, by the Bulgarian
anti-aircraft defence forces, of an aircraft belonging to El Al Israel
Airlines Ltd.

The Application invoked Article 36 of the Statute of the Court
and the acceptance of the compulsory jurisdiction of the Court by
Israel, on the one hand, in its Declaration of October 3rd, 1956,
replacing the previous Declaration of September 4th, 1950, and
by Bulgaria, on the other hand, on July 29th, 1921. In accordance
with Article 40, paragraph 2, of the Statute, the Application was
communicated to the Government of the People’s Republic of
Bulgaria. In accordance with paragraph 3 of the same Article, the
other Members of the United Nations and the non-Member States
entitled to appear before the Court were notified.

Time-limits for the filing of the Memorial and the Counter-Me-
morial were fixed respectively by Orders of the Court of November
26th, 1957, and January 27th, 1958. The Memorial was filed within
the time-limit fixed for this purpose. Within the time-limit fixed
for the filing of the Counter-Memorial, the Government of the Peo-
ple’s Republic of Bulgaria filed preliminary objections to the juris-
diction of the Court.On December 17th, 1958, an Order, recording
that the proceedings on the merits were suspended under the provi-
sions of Article 62 of the Rules of Court, granted the Government of
Israel a time-limit expiring on February 3rd, 1959, for the submis-
sion of a written statement of its observations and submissions on the
preliminary objections. The written statement was filed on that
date and the case became ready for hearing in respect of the pre-
liminary objections.

Mr. Justice Goitein, of the Supreme Court of Israel, and M.
Jaroslav Zourek, member of the International Law Commission of
the United Nations, were respectively chosen, in accordance with
Article 31, paragraph 3, of the Statute, to sit as Judges ad hoc
in the present case by the Government of Israel and the Government
of Bulgaria.

On March 16th, 17th, 18th, 19th, 23rd, 24th, 25th and 26th and
on April 1st, 2nd and 3rd, 1959, hearings were held in the course of
which the Court heard the oral arguments and replies of M. Mévorah,
Agent, M. Kamenov, Counsel, and M. Cot, Advocate, on behalf
of the Government of the People’s Republic of Bulgaria, and of
Mr. Rosenne, Agent, on behalf of the Government of Israel.

In the course of the written and oral proceedings, the following
submissions were presented by the Parties:

On behaif of the Government of Israel, in the Application:

“That it may please the Court:

(a) Subject to the presentation of such written and oral pleadings
as the Court may direct, to adjudge and declare that the People’s
Republic of Bulgaria is responsible under international law for

6
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 130

the destruction of the Israel aircraft 4X-AKC on 27 July 1955
and for the loss of life and property and all other damage that
resulted therefrom;

(b) To determine the amount of compensation due from the
People’s Republic of Bulgaria to Israel;

(c) In exercise of the power conferred upon it by Article 64
of the Statute of the Court, to decide that all costs and expenses
incurred by the Government of Israel be borne by the Govern-
ment of the People’s Republic of Bulgaria.”

On behalf of the same Government, in the Memorial:
“I. On the first petition of the Application instituting Proceedings:

Whereas units of the armed forces of Bulgaria opened fire
on 4X-AKC and shot it down and destroyed it, killing all
its occupants, as has been admitted by the Government of
Bulgaria ;

And whereas the Government of Bulgaria has furthermore
admitted that in so doing its armed forces displayed a certain
haste and did not take all the necessary measures to compel
the aircraft to land, and has stated that it would identify
and punish the culpable persons and pay compensation;

And whereas such action was in violation of international
law;

May it please the Court

To judge and declare

That Bulgaria is responsible under international law for
the destruction of Israel aircraft 4X-AKC, on 27 July 1955,
and for the loss of life and property and all other damage
that resulted therefrom.

II. On the second petition of the Application instituting Pro-
ceedings:

(a) Whereas the Government of Israel has established that

the financial loss incurred by the persons whose cause is being

adopted by it amounts to the sum of U.S. Dollars 2,559,688.65 ;

May it please the Court

To give judgment in favour of the claim of the Government
of Israel and fix the amount of compensation due from Bulgaria
to Israel at U.S. Dollars 2,559,688.65;

(b) Whereas the Government of Israel has stated that a
declaration by the Court regarding the international respon-
sibility of Bulgaria, as contained m Submission No. I, would
be sufficient satisfaction and that it was waiving any further
claim to reparation;

And whereas, nevertheless, the Government of Israel has
asked the Court to take note of the failure of the Government

7
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 131

of Bulgaria to implement its undertaking to identify and
punish the culpable persons;

May it please the Court
To place the foregoing on record.

III. On the third petition of the Application instituting Proceedings:

May it please the Court

(a) To judge and declare

that the expenses incurred by the Government of Israel in
preparing this claim, assessed at I £25,000, be borne by the
Government of Bulgaria.

(6) To decide

that the costs of the Government of Israel in this case shall
be borne by the Government of Bulgaria.

IV. And further to judge and declare that the sum awarded under
Submission No. II (a), with interest at six per cent per annum
from 27 July 1955 until the date of payment, together with
the expenses and costs incurred in this case, shall be paid by
the Government of Bulgaria to the Government of Israel in
Israel.”

On behalf of the People’s Republic of Bulgaria in the Preliminary
Objections (communications of December 4th and 8th, 1958):

“May it please the Court,

Whereas Article 36, paragraph 5, of the Statute of the Inter-
national Court of Justice is inapplicable in regard to the People’s
Republic of Bulgaria,

Whereas the International Court of Justice is without juris-
diction to adjudicate on the Application of the Government of
Israel since the latter submits to the Court a dispute which relates
to situations and facts that arose prior to the alleged acceptance
of the compulsory jurisdiction of the International Court of Justice
by the People’s Republic of Bulgaria,

For these reasons and all others which may be presented or
which the Court should consider it appropriate to add thereto or
to substitute therefor,

To adjudge and declare

That the Court is without jurisdiction in the case concerning the
aerial incident of July 27th, 1955, and also

That the Application filed on October 16th, 1957, by the Govern-
ment of Israel against the Government of the People’s Republic
of Bulgaria is inadmissible ;

In the alternative,

May it please the Court,

Whereas the State of Israel can act in defence of its nationals
only and whereas the damage in respect of which it seeks reparation

8
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 132

was for the most part suffered by non-Israel insurance companies,

Whereas the dispute referred to the International Court of
Justice by the Israel Government is subject to the exclusive
jurisdiction of the People’s Republic of Bulgaria; and whereas
moreover it falls in any event essentially within the domestic
jurisdiction of Bulgaria,

Whereas the Government of Israel has not exhausted the remedies
available in the Bulgarian courts before applying to the Court,

For these reasons and all others which may be presented or
which the Court should consider it appropriate to add thereto
or to substitute therefor,

To adjudge and declare that the Application filed on October
16th, 1957, by the Government of Israel against the Government
of the People’s Republic of Bulgaria is inadmissible.”

On behalf of the Government of Israel, in its Written Observa-
tions on the Preliminary Objections:

“May it please the Court,

Rejecting all Submissions to the contrary,

To dismiss the Preliminary Objections, and
To resume the proceedings on the merits.”

On behalf of the Government of the People’s Republic of Bul-
garia, Submissions deposited in the Registry on March 2oth, 1950,
after the first oral presentation of that Government’s case:

“May it please the Court,

On the First Preliminary Objection,

Whereas the Declaration of August 12th, 1921, by which the
Kingdom of Bulgaria had accepted the compulsory jurisdiction of
the Permanent Court of International Justice and which formed
part of the Protocol of Signature of the Statute of that Court,
ceased to be in force on the dissolution of the Permanent Court,
pronounced by the Assembly of the League of Nations on April
18th, 1946;

Whereas that Declaration was therefore no longer in force on
the date on which the People’s Republic of Bulgaria became a
party to the Statute of the International Court of Justice; and
whereas it cannot accordingly be regarded as constituting an
acceptance of the compulsory jurisdiction of the International
Court of Justice, by virtue of Article 36, paragraph 5, of the
Statute of that Court,

For these reasons,

To adjudge and declare that the Court is without jurisdiction
to adjudicate upon the Application of the Government of Israel
relating to the aerial incident of July 27th, 1955.

9
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 133

On the Second Preliminary Objection,

Whereas the dispute referred to the Court relates to situations
or facts prior to the alleged acceptance of the compulsory juris-
diction of the International Court of Justice which is said to
result from the accession of the People’s Republic of Bulgaria
to the Statute of that Court on December 14th, 1955;

Whereas the Government of Israel, in accepting the compulsory
jurisdiction of the International Court of Justice, excluded disputes
prior to the date of its submission to that compulsory jurisdiction ;

Whereas, on the basis of reciprocity, the Government of the
People’s Republic of Bulgaria cannot, in any event, be regarded
as having accepted the compulsory jurisdiction of the Inter-
national Court of Justice in respect of facts prior to December r4th,

1955,
For these reasons,

To adjudge and declare that the Court is without jurisdiction
to adjudicate upon the Application of the Government of Israel
relating to the aerial incident of July 27th, 1955.

On the Third Preliminary Objection,

Whereas the Government of Israel can act in defence of its
nationals only; whereas it does not dispute that all or part of
the damage in respect of which it seeks compensation was covered
by insurance; whereas it provides no evidence of the Israel
nationality of the insurers,

For these reasons,

To adjudge and declare that the Government of Israel has no
capacity to submit to the Court claims to a right to be indemnified
which has been the subject of assignment or subrogation in favour
of insurance companies not of Israel nationality.

On the Fourth Preliminary Objection,

Whereas it appears from the Memorial filed on behalf of the
Government of Israel that the Application, of which the Court
is seised, is based upon action undertaken by the Bulgarian anti-
aircraft defence armed forces, in the Bulgarian airspace; whereas
the dispute, which has arisen as a result of such action, does not
fall within any of the categories referred to in Article 36,
paragraph 2, of the Statute of the International Court of Justice,
but, on the contrary, falls within the exclusive jurisdiction of
the People’s Republic of Bulgaria;

Whereas, moreover, this dispute is one ‘relating to matters
which are essentially within the domestic jurisdiction of the Bul-
garian State’; whereas in virtue of reservation ‘(5)’ included by
the Government of Israel in its Declaration of Acceptance of the
compulsory jurisdiction of the Court—which reservation the
Bulgarian Government claims to be entitled to apply in its favour,
on the basis of reciprocity—the dispute falls outside the juris-
diction of the International Court of Justice,

ro
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 134

For these reasons,

To adjudge and declare that the Court is without jurisdiction
to adjudicate upon the Application of the Government of Israel
relating to the aerial incident of July 27th, 1955.

On the Fifth Preliminary Objection,

Whereas the nationals of Israel whose claims are presented by
the Government of Israel have not exhausted the remedies available
to them in the Bulgarian courts before applying to the Inter-
national Court of Justice,

For these reasons,

To adjudge and declare that the claim of the Government of
Israel cannot, at the present stage, be submitted to the Court.”

On behalf of the Government of Israel, Submissions filed at the
hearing of March 26th, 1959:

“May it please the Court,

Rejecting all Submissions to the contrary,
To dismiss the Preliminary Objections, and
To resume the proceedings on the merits.”

On behalf of the Government of the People’s Republic of Bul-
garia, Submissions filed in the Registry on April 2nd, 1959, after
the oral reply:

“On the Fifth Preliminary Objection,

Whereas the nationals of Israel whose claims are presented by
the Government of Israel had not exhausted the remedies available
to them in the Bulgarian courts before the reference by that
Government to the International Court of Justice,

For these reasons,

To adjudge and declare that the claim of the Government of
Israel cannot, at the present stage, be submitted to the Court.”

At the hearing of April 3rd, 1959, at the end of his oral rejoinder,
the Agent for the Government of Israel confirmed the formal Sub-
missions set forth in the Written Observations submitted on behalf
of his Government.

*
* *

It was stated to the Court that on the morning of July 27th, 1955,
the civil Constellation aircraft No. 4X-AKC, wearing the Israel
colours and belonging to the Israel Company El Al Israel Airlines
Ltd., making a scheduled commercial flight between Vienna,
Austria, and Lod (Lydda) in Israel, having, without previous
authorization, penetrated over Bulgarian territory, was shot down
by aircraft of the Bulgarian anti-aircraft defence forces. After
catching fire, the Israel aircraft crashed in flames near the town of

IT
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 135

Petritch, Bulgaria, and all the crew, consisting of seven members,
and also the fifty-one passengers of various nationalities were killed.

These facts gave rise to negotiations and diplomatic correspon-
dence between the two Governments which attempted in that
way to arrive at a friendly solution. As these diplomatic approaches
did not lead to a result which was satisfactory to the Parties
to the case, the Government of Israel submitted the dispute to
the Court by means of an Application instituting proceedings
on October 16th, 1957. Against this Application the Government
of the People’s Republic of Bulgaria advanced five Preliminary
Objections.

The Court will proceed to consider the First Preliminary Objection.

*
* *

The Government of Israel claims to find a basis for the juris-
diction of the Court in the present case by invoking in its Application
the fact that ““Bulgaria’s acceptance of the compulsory jurisdiction
was made on 29th July, 1921, on the occasion of the deposit of the
instrument of that country’s ratification of the Protocol of Signature
of the Statute of the Permanent Court of International Justice”.
In its Memorial, it reproduced the declaration thus invoked under
the date of August 12th, 1921, which is the date of its ratification
by the Government of the Kingdom of Bulgaria and therefore the
date of its entry into force. The Memorial adds: “Bulgaria became
a Member of the United Nations on 14 December, 1955... when
that country’s Declaration became applicable to the jurisdiction
of the International Court of Justice.” While not so stating at the
time, though it was thus understood by the Bulgarian Government
and explained in the subsequent proceedings, the Government of
Israel rested this reference to the 1921 Declaration on Article 36,
paragraph 5, of the Statute of the International Court of Justice.

Thus, the Government of Israel relies on two provisions. The first
is the Declaration signed on July 2gth, 1921, at the same time as
the Protocol of Signature of the Statute of the Permanent Court
of International Justice, and ratified on August 12th, 1921. This
Declaration is in the following terms:

[Translation]

“On behalf of the Government of the Kingdom of Bulgaria, I
recognize, in relation to any other Member or State which accepts
the same obligation, the jurisdiction of the Court as compulsory,
tpso facto and without any special convention, unconditionally.”

The second provision is Article 36, paragraph 5, of the Statute of
the International Court of Justice, which reads as follows:

“Declarations made under Article 36 of the Statute of the Per-
manent Court of International Justice and which are still in force

Iz
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 136

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.”

To justify the application of the latter provision to the Bulgarian
Declaration of 1921, the Government of Israel relies finally on the
fact that Bulgaria became a party to the Statute of the International
Court of Justice as a result of its admission to the United Nations,
pursuant to Resolution 995 (X) adopted by the General Assembly
on December 14th, 1955.

The Government of the People’s Republic of Bulgaria denies
that Article 36, paragraph 5, of the Statute transferred the effect
of the Bulgarian Declaration of 1921 to the jurisdiction of the
International Court of Justice. Consequently, its First Preliminary
Objection asks that it ‘‘may please the Court ... to adjudge and
declare that the Court is without jurisdiction to adjudicate upon
the Application of the Government of Israel relating to the aerial
incident of July 27th, 1955”.

The Court has to determine whether Article 36, paragraph 5, of
the Statute is applicable to the Bulgarian Declaration of 1921.

The object of Article 36, paragraph 5, is to introduce a modifi-
cation in the declarations to which it refers by substituting the
International Court of Justice for the Permanent Court of Inter-
national Justice, the latter alone being mentioned in those declara-
tions, and by thus transferring the legal effect of those declarations
from one Court to the other. That Article 36, paragraph 5, should
do this in respect of declarations made by States which were
represented at the San Francisco Conference and were signatories
of the Charter and of the Statute, can easily be understood. This
corresponds indeed to the very object of this provision. But is this
provision meant also to cover declarations made by other States,
including Bulgaria? The text does not say so explicitly.

At the time of the adoption of the Statute a fundamental
difference existed between the position of the signatory States and
of the other States which might subsequently be admitted to the
United Nations. This difference is not expressed in the text of
Article 36, paragraph 5, but it derives from the situation which that
text was meant to regulate, namely, the transfer to the International
Court of Justice of declarations relating to the Permanent Court of
International Justice which was on the point of disappearing when
the Statute was drawn up. The States represented at San Francisco
knew what their own position was under the declarations they had
made. They were acting with a full knowledge of the facts when
they agreed to transfer the effect of those declarations to the com-
pulsory jurisdiction of the new Court and they had the power
to do so. These States were not in the same position with
regard to the declarations signed by other States. In the case of

13
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 137

some of these, there might arise the question of the effect of the
war, a question which does not appear then to have been considered.
In a more general way, the signatory States could not regard as
more or less imminent the admission to the United Nations of any
of the other States, their admission being possibly preceded by the
lapsing of the declarations of some of them; the question which
the signatory States were easily able to resolve as between them-
selves at that time would arise in a quite different form in the
future as regards the other States. The existence of these differences
militates against a construction extending the effect of Article 36,
paragraph 5, to declarations made by States subsequently admitted
to the United Nations, on the mere ground that those declarations
were in force at the time of the signing of the Charter or of its
entry into force.

Article 36, paragraph 5, considered in its application to States
signatories of the Statute, effects a simple operation: it transforms
their acceptance of the compulsory jurisdiction of the Permanent
Court into an acceptance of the compulsory jurisdiction of the
International Court of Justice. This was done in contemplation
of the dissolution of the old Court and the institution of a new
Court, two events which, while not absolutely coincident, were
sufficiently close so far as States signatories of the Charter and
of the Statute were concerned. The transformation enacted was
in their case contemporaneous with this double event. The position
was quite different in respect of declarations by non-signatory
States, apart from the possibility, which did not in fact materialize,
of a non-signatory State’s becoming a party to the Statute before the
dissolution of the Permanent Court. Subject to this, the operation
of transferring from one Court to the other acceptances of the
compulsory jurisdiction by non-signatory States could not con-
stitute a simple operation, capable of being dealt with immediately
and completely by Article 36, paragraph 5. Such a transfer must
necessarily involve two distinct operations which might be separated
by a considerable interval of time. On the one hand, old declarations
would have had to have been preserved with immediate effect as
from the entry into force of the Statute, and, on the other hand,
they would have had to be transferred to the jurisdiction of the
International Court of Justice, a transfer which could only have
been operated by the acceptance by the State concerned of the
new Statute, in practice, by its admission to the United Nations.
Immediate preservation of the declaration was necessary in order
to save it from the lapsing by which it was threatened by the
imminent dissolution of the Permanent Court which was then in
contemplation. If it were not thus maintained in being, a subsequent
transfer of the declaration to the jurisdiction of the new Court
could not be effected. Thus, the problem of the transfer of former
declarations from one Court to the other, which arose in the case
of the acceptances of non-signatory States, was quite different

14
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 138

from that in the case of acceptances by States signatories of the ©
Charter and of the Statute.

In addition to this fundamental difference in respect of the
factors of the problem, there were special difficulties in resolving
it in respect of acceptances by non-signatory States. These diffi-
culties, indeed, rendered impossible the solution of the problem
by the application of Article 36, paragraph 5, as drafted and
adopted. Since this provision was originally subscribed to only by
the signatory States, it was without legal force so far as non-
signatory States were concerned: it could not preserve their
declarations from the lapsing with which they were threatened
by the impending dissolution of the Permanent Court. Since it
could not maintain them in being, Article 36, paragraph 5, could
not transfer their effect to the jurisdiction of the new Court as
of the date when a State having made a declaration became a
party to the Statute. Since these declarations had not been
maintained in being, it would then have been necessary to reinstate
lapsed declarations, then to transport their subject-matter to the
jurisdiction of the International Court of Justice: nothing of this
kind is provided for by Article 36, paragraph 5. Thus, the course
it would have been necessary to follow at the time of the adoption
of the Statute, in order to secure a transfer of the declarations
of non-signatory States to the jurisdiction of the new Court, would
have had to be entirely different from the course which was
followed to achieve this result in respect of the declarations of
signatory States. In the case of signatory States, by an agreement
between them having full legal effect, Article 36, paragraph 5,
governed the transfer from one Court to the other of still-existing
declarations; in so doing, it maintained an existing obligation
while modifying its subject-matter. So far as non-signatory States
were concerned, something entirely different was involved: the
Statute, in the absence of their consent, could neither maintain
nor transform their original obligation. Shortly after the entry
into force of the Statute, the dissolution of the Permanent Court
freed them from that obligation. Accordingly, the question of a
transformation of an existing obligation could no longer arise so
far as they were concerned: all that could be envisaged in their
case was the creation of a new obligation binding upon them. To
extend Article 36, paragraph 5, to those States would be to allow
that provision to do in their case something quite different from
what it did in the case of signatory States.

The question of the transfer from one Court to the other of
former acceptances of the compulsory jurisdiction is so different,
according to whether it arises in respect of States signatories of
the Statute or in respect of non-signatory States, that the date
of the transfer, which it is a simple matter to determine in the
case of signatory States, in spite of the silence on the point of
Article 36, paragraph 5, can scarcely be determined in any satis-

15
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 139

factory way in the case of declarations of non-signatory States.
If regard be had to the date upon which a non-signatory State
became a party to the Statute by its admission to the United
Nations or in accordance with Article 93, paragraph 2, of the
Charter, the transfer is then regarded as occurring at a date which
might be very distant from the entry into force of the Statute,
and this would hardly be in harmony with the spirit of a provision
designed to provide for the transition from the old to the new
Court by maintaining something of the former regime.

On the point now under consideration, the States represented
at San Francisco could have made an offer addressed to other
States, for instance, an offer to consider their acceptance of the
compulsory jurisdiction of the Permanent Court as an acceptance
of the jurisdiction of the International Court of Justice. But, in
that case, such an offer would have had to be formulated, and
the form of its acceptance and the conditions regarding the period
within which it must be accepted would have had to be determined.
There is nothing of this kind in Article 36, paragraph 5. When
this Article decides that, as between parties to the present Statute,
certain declarations are to be deemed to be acceptances of the
compulsory jurisdiction of the International Court of Justice,
this can be easily understood as meaning that the Article applies
to the declarations made by the States which drew it up. Such
a form of expression is scarcely appropriate for the making of
an offer addressed to other States.

Thus to restrict the application of Article 36, paragraph 5, to
the States signatories of the Statute is to take into account the
purpose for which this provision was adopted. The Statute in
which it appears does not establish the compulsory jurisdiction
of the Court. At the time of its adoption, the impending disso-
lution of the Permanent Court and, in consequence thereof, the
lapsing of acceptances of its compulsory jurisdiction, were in
contemplation. If nothing had been done there would have been
a backward step in relation to what had been achieved in the
way of international jurisdiction. Rather than expecting that the
States signatories of the new Statute would deposit new declara-
tions of acceptance, it was sought to provide for this transitory
situation by a transitional provision and that is the purpose of
Article 36, paragraph 5. By its nature and by its purpose, that
transitional provision is applicable only to the transitory situation
it was intended to deal with, which involved the institution of
a new Court just when the old Court was being dissolved. The
situation is entirely different when, the old Court and the acceptance
of its compulsory jurisdiction having long since disappeared, a
State becomes a party to the Statute of the new Court: there is then
no transitory situation to be dealt with by Article 36, paragraph 5.

16
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 140

*
* *

To the extent that the records of the San Francisco Conference
provide any indication as to the scope of the application of
Article 36, paragraph 5, they confirm the fact that this paragraph
was intended to deal with the declarations of signatory States.
Those of non-signatory States, in respect of which special provisions
would have been necessary, were not envisaged.

This point had not been dealt with by the Washington Com-
mittee of Jurists. A Sub-Committee, sitting on April 13th, 1945,
had merely drawn attention to the fact that many nations had
previously accepted compulsory jurisdiction under the Optional
Clause and added “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’’. This reference
to a special agreement clearly indicated that in order to preserve
these acceptances under a new system, the consent of States
having made such declaration would be necessary: the contem-
plating of such an agreement indicated that the Conference could
not substitute its decision for that of the States not there
represented.

At the San Francisco Conference, the provision which became
paragraph 5 of Article 36 was proposed by Sub-Committee D and
discussed and adopted by Committee IV/r, on June Ist, 1945.
In this Committee, the statements made mainly indicated the
preference of many delegations for the Court’s compulsory juris-
diction and their regret that it did not appear to be possible to
adopt it. As to the meaning to be attributed to the provision
which was to become paragraph 5 of Article 36, the Canadian
representative said: “In view of the new paragraph ... as soon
as States sign the Charter, the great majority of them would be
automatically under the compulsory jurisdiction of the Court
because of the existing declarations.” The representative of the
United Kingdom having for his part said that he thought “that
some forty States would thereby become automatically subject
to the compulsory jurisdiction of the Court”, this optimistic
estimate was corrected by the Australian representative in the
terms thus recorded in the minutes: “He desired to call attention
to the fact that not forty but about twenty States would be
automatically bound as a result of the compromise. In this con-
nection he pointed out that of the fifty-one States that have
adhered to the optional clause, three had ceased to be independent
States, seventeen were not represented at the Conference and
about ten of the declarations of other States had expired.” The
representatives of the United Kingdom and of Australia, referring
to the meaning which they attached to the paragraph which sub-
sequently became paragraph 5, were indicating the number of

17
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 141

States to which, in their opinion, this provision would be applicable.
The Australian representative, whose statement followed that of
the representative of the United Kingdom, set out to correct the
latter’s estimate of the number of declarations which would thus
be affected and, for this purpose, he rejected those of the seventeen
States which were not ‘represented at the Conference”. This
statement clearly shows that in the view of the Australian rep-
resentative, paragraph 5 was not intended to be applicable to the
declarations of States not represented at the Conference. This
statement, though it related to a point in the paragraph of cardinal
importance, was not disputed by the representative of the United
Kingdom or by any other member of the Committee. The conclusion
to be drawn is that, in the view of the members of the Committee,
the States not represented at the Conference remained outside the
scope of the matter being dealt with by paragraph 5 and that that
paragraph was intended to be binding only upon those States
which, having been represented at the Conference, would sign and
ratify the Charter and thus accept the Statute directly and without
any probable delay.

This is confirmed by the report of Committee IV/r, approved by
the Committee on June 11th, 1945. The report, having stated that
the Committee proposed solutions for certain problems to which
the creation of the new Court would give rise, sets out under (a)
what is provided in Article 37, under (6) what is provided in
paragraph 4 (which was to become paragraph 5) of Article 36, and
adds: “fc) Acceptances of the jurisdiction of the old Court over
disputes 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
jurisdiction 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.’’ Thus a clear
distinction was drawn between what could be dealt with by Arti-
cle 36, paragraph 5, and what could only be dealt with otherwise,
that is, by agreement, outside the provisions of the Statute, with
the States absent from the San Francisco negotiations. If that did
not refer exclusively to the declarations of such States, at least
there is no doubt that it did refer to them and that they were princi-
pally referred to: the use of the word ‘‘acceptances’’ confirms this,
if confirmation is necessary, and this word, which appears once only
in the French text, appears twice in the English text of which
indeed it is the first word.

This confirms the view that Article 36, paragraph 5, was designed
to govern the transfer dealt with in that provision only as between
the signatories of the Statute, not in the case of a State in the
position of Bulgaria.

18
AERIAL INCIDENT OF 27 VH 55 (JUDGMENT OF 26 V 59) 142

Finally, if any doubt remained, the Court, in order to interpret
Article 36, paragraph 5, should consider it in its context and
bearing in mind the general scheme of the Charter and the Statute
which founds the jurisdiction of the Court on the consent of States.
It should, as it said in the case of the Monetary gold removed from
Rome in 1943, be careful not to “run counter to a well-established
principle of international law embodied in the Court’s Statute,
namely, that the Court can only exercise jurisdiction over a State
with its consent”. (7.C.J. Reports 1954, p. 32.)

Consent to the transfer to the International Court of Justice of
a declaration accepting the jurisdiction of the Permanent Court
may be regarded as effectively given by a State which, having
been represented at the San Francisco Conference, signed and
ratified the Charter and thereby accepted the Statute in which
Article 36, paragraph 5, appears. But when, as in the present
case, a State has for many years remained a stranger to the Statute,
to hold that that State has consented to the transfer, by the fact
of its admission to the United Nations, would be to regard its
Tequest for admission as equivalent to an express declaration by
that State as provided for by Article 36, paragraph 2, of the
Statute. It would be to disregard both that latter provision and
the principle according to which the jurisdiction of the Court is
conditional upon the consent of the respondent, and to regard as
sufficient a consent which is merely presumed.

*
* *

Even if it should be assumed that Article 36, paragraph 5, is not
limited to the declarations of signatory States, the terms of that
provision make it impossible to apply it to the Bulgarian Declaration
of 1921. The Government of Israel, in order to base the jurisdiction
of the Court upon the combined effect of the Bulgarian Declaration
of 1921 and Article 36, paragraph 5, of the Statute, has construed
that provision as covering a declaration made by a State, which
had not participated in the San Francisco Conference, which is not
a signatory of the Statute and only became a party thereto much
later. The Court will also consider the matter from this angle and
accordingly enquire whether the conditions, required by Article 36,
paragraph 5, for a transfer from the Permanent Court of Inter-
national Justice to the International Court of Justice of acceptances
of compulsory jurisdiction relating only to the former, are satisfied
in the present case and whether the Bulgarian Declaration must
therefore “be deemed ... to be an acceptance of the compulsory
jurisdiction of the International Court of Justice”.

The declarations to which Article 36, paragraph 5, refers created
for the States which had made them the obligation to recognize the

19
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 143

jurisdiction of the Permanent Court of International Justice. At
the time when the new Statute was drawn up, it was anticipated
—and events confirmed this—that the Permanent Court would
shortly disappear and these undertakings consequently lapse. It was
sought to provide for this situation, to avoid, as far as it was possible,
such a result by substituting for the compulsory jurisdiction of the
Permanent Court, which was to come to an end, the compulsory
jurisdiction of the International Court of Justice. This was the
purpose of Article 36, paragraph 5. This provision effected, as
between the States to which it applied, the transfer to the new
Court of the compulsory jurisdiction of the old. It thereby laid
upon the States to which it applied an obligation, the obligation
to recognize, 7pso facto and without special agreement, the juris-
diction of the new Court. This constituted a new obligation which
was, doubtless, no more onerous than the obligation which was to
disappear but it was nevertheless a new obligation.

In the case of a State signatory of the Charter and of the Statute,
the date at which this new obligation arises, the date at which this
transfer from the jurisdiction of one Court tc that of another Court
is effected, is not directly determined. It could only be linked to
the signing of the Charter by an interpretation somewhat out of
keeping with the provisions of Article 110 of the Charter which,
for the date of the entry into force of the Charter and, consequently,
of the Statute, have regard to the dates of the deposit of ratifications.
Neither of these dates can be taken as fixing the birth of the obli-
gation here under consideration in.the case of a State not a signatory
of the Charter but subsequently admitted to the United Nations.
Until its admission, it was a stranger to the Charter and to the
Statute. What has been agreed upon between the signatories of
these instruments cannot have created any obligation binding upon
it, in particular an obligation to recognize the jurisdiction of the
Court.

This was the position of Bulgaria. Article 36, paragraph 5, could
not in any event be operative as regards that State until the date of
its admission to the United Nations, namely, December 14th, 1955.

At that date, however, the Bulgarian Declaration of 1921 was
no longer in force in consequence of the dissolution of the Permanent
Court of International Justice in 1946. The acceptance set out in
that Declaration of the compulsory jurisdiction of the Permanent
Court of International Justice was thereafter devoid of object since
that Court was no longer in existence. The legal basis for that
acceptance in Article 36, paragraph 2, of the Statute of the Per-
manent Court of International Justice, ceased to exist with the
disappearance of that Statute. Thus, the Bulgarian Declaration
had lapsed and was no longer in force.

Though the Statute of the present Court could not lay any
obligation upon Bulgaria before its admission to the United Nations,
and though the Bulgarian Declaration of 1921 had lapsed before

20
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 144

that date, can Article 36, paragraph 5, nevertheless have had the
effect that that Declaration must be deemed as between Bulgaria
and Israel to be an acceptance of the compulsory jurisdiction of
the International Court of Justice? That depends upon the date to
which Article 36, paragraph 5, refers when it speaks of declarations
“which are still in force’, “pour une durée qui n’est pas encore
expirée’’. In expressing itself thus; Article 36, paragraph 5, neither
states nor implies any reference to a fixed date, that of the signature
of the Charter and of the Statute, or that of their original entry
into force. These were events to which Bulgaria, which became a
party to the Statute only as a result of its admission to the United
Nations in 1955, was not privy; it would be permissible to have
reference to those dates in respect of the application of Article 36,
paragraph 5, only if that provision had referred thereto expressly
or by necessary implication; nothing of the kind is stated or implied
in the text.

There is nothing in Article 36, paragraph 5, to reveal any intention
of preserving all the declarations which were in existence at the
time of the signature or entry into force of the Charter, regardless
of the moment when a State having made a declaration became a
party to the Statute. Such a course would have involved the
suspending of a legal obligation, to be revived subsequently: it is
scarcely conceivable in respect of a State which was a stranger to
the drafting of Article 36, paragraph 5. There is nothing in this
provision to show any intention of adopting such an exceptional
procedure. If there had been such an intention, it should have been
expressed by a direct clause providing for the preservation of the
declaration, followed by a provision for its subsequent re-entry into
force as from the moment of admission to the United Nations:
nothing of the kind is expressed in the Statute.

Article 36, paragraph 5, is expressed in a single sentence the
purpose of which is to state that old declarations 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. The provision determines, in respect
of a State to which it applies, the birth of the compulsory juris-
diction of the new Court. It makes that subject to two conditions:
(1) that the State having made the declaration should be a party
to the Statute, (2) that the declaration of that State should still be
in force.

Since the Bulgarian Declaration had lapsed before Bulgaria was
admitted to the United Nations, it cannot be said that, at that time,
that declaration was still in force. The second condition stated in
Article 36, paragraph 5, is therefore not satisfied in the present case.
Thus, even placing itself on the ground upon which the Government
of Israel bases its claim, the Court finds that Article 36, para-
graph 5, is not applicable to the Bulgarian Declaration of Ig2r.

21
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26V 59) 145

This view is confirmed by the following considerations:

On the one hand, the clear intention which inspired Article 36,
paragraph 5, was to continue in being something which was in
existence, to preserve existing acceptances, to avoid that the crea-
tion of a new Court should frustrate progress already achieved;
it is not permissible to substitute for this intention to preserve, to
secure continuity, an intention to restore legal force to undertakings
which have expired: it is one thing to preserve an existing under-
taking by changing its subject-matter; it is quite another to revive
an undertaking which has already been extinguished.

On the other hand, Article 36, contrary to the desire of a number
of delegations at San Francisco, does not make compulsory juris-
diction an immediate and direct consequence of being a party to
the Statute. If Bulgaria, which at the time of its admission to the
United Nations was under no obligation of that kind in consequence
of the lapse of its Declaration of 1927, were to be regarded as subject
to the compulsory jurisdiction as a result of its admission to the
United Nations, the Statute of the Court would, in the case of
Bulgaria, have a legal consequence, namely, compulsory juris-
diction, which that Statute does not impose upon other States. It
is difficult to accept an interpretation which would constitute in the
case of Bulgaria such a derogation from the system of the Statute.

In seeking and obtaining admission to the United Nations,
Bulgaria accepted all the provisions of the Statute, including
Article 36. It agreed to regard as subject to the compulsory juris-
diction of the Court, on the one hand, those States parties to the
Statute which had made or would make the declaration provided
for by paragraph 2 and, on the other hand, in accordance with
paragraph 5, those States which, at the time of their acceptance
of the Statute, were bound by their acceptance of the compulsory
jurisdiction of the Permanent Court. At the time when Bulgaria
sought and obtained admission to the United Nations, its acceptance
of the compulsory jurisdiction of the Permanent Court had long
since lapsed. There is nothing in Article 36, paragraph 5, to indicate
any intention to revive an undertaking which is no longer in force.
That provision does not relate to the position of Bulgaria at the
time of its entry into the United Nations; Bulgaria’s acceptance
of the provision does not constitute consent to the compulsory
jurisdiction of the International Court of Justice; such consent can
validly be given by Bulgaria only in accordance with Article 36,
paragraph 2.

Article 36, paragraph 5, cannot therefore lead the Court to find
that, by the operation of this provision, the Bulgarian Declaration
of 1921 provides a basis for its jurisdiction to deal with the case
submitted to it by the Application filed by the Government of
Israel on October 16th, 1957.

22
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26V 59) 146

In the circumstances, it is unnecessary for the Court to proceed
to a consideration of the other Preliminary Objections to the Appli-
cation raised by the Government of the People’s Republic of Bulgaria.

For these reasons,

THE CouRT,
by twelve votes to four,

finds that it is without jurisdiction to adjudicate upon the dispute
brought before it on October 16th, 1957, by the Application of the
Government of Israel.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-sixth day of May, one
thousand nine hundred and fifty-nine, in three copies, one of which
will be placed in the archives of the Court and the others transmitted
to the Government of Israel and the Government of the People’s
Republic of Bulgaria, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.

Vice-President ZAFRULLA KHAN states that he agrees with the
Judgment of the Court. Paragraph 5 of Article 36 of the Statute
of the Court requires that the State having made a declaration of
acceptance of the compulsory jurisdiction of the Permanent Court
should be a party to the Statute of the International Court and
that the declaration should still be in force. The paragraph is not,
by its language, limited in its application to States who became
signatories of the Charter of the United Nations, though in actual
fact the paragraph did not become applicable to any other State, as
no other State, having a declaration still in force, became a party
to the Statute of the International Court before the dissolution of
the Permanent Court put an end to all declarations accepting its
jurisdiction. If Bulgaria, or any other State whose declaration
accepting the compulsory jurisdiction of the Permanent Court was
still in force, had become a party to the Statute of the International
Court before the dissolution of the Permanent Court, paragraph 5
of Article 36 of the Statute of the International Court would have
become applicable.
AERIAL INCIDENT OF 27 VII 55 (JUDGMENT OF 26 V 59) 147

Judges Bapawi and ARMAND-UGON, availing themselves of the
right conferred upon them by Article 57 of the Statute, append to
the Judgment of the Court statements of their Separate Opinions.

Judges Sir Hersch LAUTERPACHT, WELLINGTON Koo and Sir
Percy SPENDER, availing themselves of the right conferred upon
them by Article 57 of the Statute, append to the Judgment of the
Court a statement of their Joint Dissenting Opinion.

Mr. GOITEIN, Judge ad hoc, availing himself of the right conferred
upon him by Article 57 of the Statute, appends to the Judgment
of the Court a statement of his Dissenting Opinion.

(Initralled) H. K.
(Initialled) G.-C.


234

DISSENTING OPINION OF JUDGE GROS
[ Translation]

1. The two Judgments, as will be evident on reading them, are modelled
on each other, and the cases have been dealt with together throughout the
written, oral and deliberation stages, and lastly the ground for refusal of
a joinder was the desire formally conveyed to the Court by the two States.
Since I took the view that the United Kingdom v. Iceland case and the
Federal Republic of Germany y». Iceland case should be joined, L shall
here confine myself to the observations called for by the fact that one
submission peculiar to the Federal Republic has been maintained before
the Court. For an explanation of the reasons for my general disagreement
with the Judgment, | refer to my opinion on the Judgment concerning the
United Kingdom.

In September 1972, after the [celandic Regulations had been brought
into force, the Government of the Federal Republic proposed trilateral
talks with Iceland for the negotiation of an interim agreement, but
Iceland refused (cf. Memorial of the Federal Republic of Germany on the
merits, Part I, para. 43). The White Book published by the United King-
dom shows that there was constant consultation and co-operation with
the Federal Republic:

““ANGLO/GERMAN COOPERATION

21. Throughout the dispute there has been close consultation and
cooperation with the Federal German Government. The latter are
conducting proceedings before the International Court on similar
lines to the proceedings instituted by H.M.G. The Federal Republic
proposed on 15 September 1972 that the negotiations with the
Government of Iceland should be on a tripartite basis. The United
Kingdom accepted this proposal but it was rejected by the Govern-
ment of Iceland. Consequently, the British and German negotia-
tions with Iceland had to continue on a bilateral basis but they have
been closely coordinated. The composition of the two fishing fleets
and the areas which they use are however different and this difference
will no doubt be reflected in any eventual agreement.” (Fisheries
Dispute between the United Kingdom and Iceland, Cmnd. 5341, June
1973.)

Throughout the proceedings in the two cases, in respect of the written

63
FISHERIES JURISDICTION (DISS. OP. GROS) 235

pleadings, the oral argument and the replies to questions, this co-opera-
tion was as evident as was the presence of the Agents and counsel of each
State at the public sittings devoted to the proceedings instituted by the
other State.

2. The Exchange of Notes of 19 July 1961 between the Federal Re-
public and Iceland is in identical terms to the Exchange of Notes of 11
March 1961 between the United Kingdom and Iceland, and the Federal
Republic stated in its Memorial on jurisdiction that:

“there can ... be no doubt that the subject-matter of the dispute
as defined in the Submissions contained in the Application ... that
is, whether or not the extension by Iceland of its fisheries jurisdiction
to 50 nautical miles is valid under international law, falls within the
scope of the jurisdiction of the Court” (Memorial, para. 5).

The position of the Government of the Federal Republic was explained
in the same way in paragraph 150 of Part IV of the Memorial on the
merits:

“Accordingly, the Government of the Federal Republic of Ger-
many respectfully requests the Court to adjuge and declare that
Iceland’s unilateral action which had been undertaken without
the faintest regard to the long-established traditional fishery rights
of the Federal Republic and other States in these waters, is without
foundation in international law and cannot be enforced against
the Federal Republic, the fishing vessels registered in the Federal
Republic, their crews and other persons connected with their fishing
activities in these waters.”

The reply of the Court should have been that such extension is not
in accordance with existing international law for the reasons which I have
explained with reference to the Judgment concerning the United King-
dom, and without extending the Court's jurisdiction to a decision on
negotiation of preferential and historic rights between Iceland and the
Federal Republic.

I would merely add that the clearest possible indication of the general
economic background against which the negotiations between Iceland
and the Federal Republic took place, and of the need which in my view
results therefrom to extend any examination of the elements of any
negotiation for the fisheries régime around Iceland to, as regards the
subject-matter, these economic problems, and as regards to the partici-
pants, to the States and organizations concerned, is given by the diplo-
matic documents quoted by the Federal Republic (for example, the aide-
mémoire of 20 July 1961 of the Icelandic delegation in Bonn, Memorial
on the jurisdiction, para. 20 and Ann. H; and the memorandum of the
Federal Republic of 21 July 1961, ibid., Ann. J, where the possibility
of association with the EEC is contemplated 11 years before the agree-
ment of 22 July 1972 between Iceland and the EEC, which demonstrates

64
FISHERIES JURISDICTION (DISS. OP. GROS) 236

the interest shown by the member States of the Community, including
the Federal Republic and the United Kingdom, in the fisheries régime
round Iceland).

3. The point which is peculiar to the present Judgment concerns the
fourth submission of the Federal Republic, which is dealt with in the last
subparagraph of the operative clause. The Court has decided that itis unable
to accede to this fourth submission of the Federal Republic of Germany
—-which was a claim for reparation for the consequences of action taken
against its fishing vessels—exclusively on the grounds of the way in
which the submission has been presented: ‘The fourth submission... as
presented to the Court cannot be acceded to” (para. 76 of the Judgment).
It may be deduced from this that in another form the claim could be
acceded to by the Court; but it might be contended, on the basis of the
continuance in force of the 1961 agreement, that further action would
be possible, particularly should the negotiations which the Court recom-
mends break down. Since there is between Iceland and the Federal Repu-
blic no interim agreement, like the agreement of 13 November 1973 with
the United Kingdom, there is therefore nothing to prevent the Federal
Republic from immediately re-presenting this part of its cl:im. Since [
am unable to accept the implications of the Judgment on this point, and
for other reasons also, I voted against subparagraph 5 of the operative
clause, as I did in respect of the Judgment as a whole.

4. The 1961 agreement, which has been subjected by the Court to an
extensive interpretation which has already been adverted to in my obser-
vations on the United Kingdom case, is in fact now presented by the
Court as having provided for acceptance by Iceland of judicial jurisdic-
tion extending also to reparation for any damage related to a further
extension of Icelandic fisheries jurisdiction beyond 12 miles. But the
Records of the 1960 negotiations provided by the United Kingdom (the
only such records available to the Court) show that reference to the
Court was only contemplated on a single point, and was only discussed
and accepted on that point, namely the assurance asked for by the
United Kingdom, and of which the Federal Republic subsequently had
the benefit, that any further extension would have to be submitted to the
judgment of the Court in accordance with international law. When two
States negotiate for and conclude an assurance which is confined to a
single point, it is not possible to draw the same conclusion from it as
would have been possible if what they had agreed was: ‘‘The Court shall
have jurisdiction in respect of any dispute concerning the application and
interpretation of the present agreement’; I would recall that the 1961
agreement was submitted for approval to the Althing, which was in no
position to understand that it was being asked to accept reference of any
dispute whatsoever to the Court, to which it had always refused to agree,

65
FISHERIES JURISDICTION (DISS. OP. GROS) 237

since the negotiations reported to it terminated only in an assurance
against any “further extension”. The commitment which has been relied
upon against Iceland should be understood as it was understood by the
two Parties at the time of its conclusion (cf. paras. 16 and 28 of my
opinion on the United Kingdom Judgment). An agreement can never
define anything other than what was subject to negotiation at the appro-
priate time between the parties who concluded it; as the Court has said, “no
party can impose its terms on the other party” (.C.J. Reports 1950, p. 139).
Nor can a court impose its interpretation of an agreement on the States
which concluded it, so as to make it say something more than, or something
different from, what it says. Here again the Court has already spoken:

“... though it is certain that the Parties, being free to dispose of
their rights, might ... embody in their agreement any provisions
they might devise .. ., it in no way follows that the Court enjoys the
same freedom; as this freedom, being contrary to the proper func-
tions of the Court, could in any case only be enjoyed by it if such
freedom resulted from a clear and explicit provision . . .” (Free Zones
of Upper Savoy and the District of Gex, Order of 6 December 1930,
P.C.1J., Series A, No. 24, p. 11).

5. The Court is bound to satisfy itself that the Applicant’s claim is
well founded in fact and law; I consider that the two identical agreements
of 1961 do not provide for any proceedings to establish responsibility
(contentieux de responsabilité), but only proceedings to establish law-
fulness (contentieux de légalité), directed to obtaining a declaratory
judgment on a limited point of law, and nothing more. It is therefore
because the fourth submission of the Federal Republic fell outside the
subject-matter of the compromissory clause, and therefore of the Court’s
jurisdiction, that it should have been rejected in the Judgment, and not
by means of an argument based on the way in which the submission was
presented. As to certain arguments concerning the law of responsibility
in general, since the Court has not given its decision on this aspect of the
matter, but may be seised of it again, I do not consider it possible to
discuss the point.

6. One final observation seems to me to. be necessary. The way in
which the Court has applied Article 53 of the Statute leads me to observe
that the difficulties which are inherent in any investigation of the position
taken up by a State which fails to appear, on the law and on the facts,
have not been sufficiently overcome, and thus there remains a feeling
that a State which has put itself in such a position can be subjected to
sanctions. This interpretation of failure to appear has, in both Judgments,
led to action u/tra vires, as a result of an incorrect interpretation of the
commitments entered into by the absent State, for lack of more thorough
enquiry into what that State said and, in that context, into what it could
have said, which is exactly what is required by Articie 53. I therefore
disagree on this point with paragraph 18 of the Judgment, particularly
as regards the decision on the fourth submission of the Federal Republic.

66
FISHERIES JURISDICTION (DISS. OP. GROS) 238

7. The 1961 agreement was conceived by the parties as a guarantee
against a further extension, which was already under contemplation by
Iceland, of its fishery limits, which would consist in the matter being
referred to the Court on the question whether a fresh extension would
be, at the relevant time, in accordance with existing international law.
As a result of the Court’s construction of the 1961 agreement, not only is
its Judgment ultra vires, but by refusing to pronounce on the question
of the lawfulness of the extension which was validly and clearly laid
before it, it has finally left unanswered the only claim which defined
the divergence between the Parties in 1961, and constituted the dispute
between them: the fresh extension of limits effected by the Icelandic
Regulations of 1972 is not in accordance with existing international law,
but the Court has not said so. This is however the basis necessary for the
establishment of any fisheries régime round Iceland, and that is doubtless
the reason why, when negotiating the 1961 agreement, the United King-
dom insisted so strongly that it should be the Court which should decide,
when the time came, what the state of the applicable law was.

8. The real task of the Court is still to “decide in accordance with
international law such disputes as are submitted to it” (Art. 38 of the
Statute). To introduce into international relations an idea that the de-
cisions of the Court may be given according to what on each occasion
the majority thought to be both just and convenient, would be to effect
a profound transformation. It will be sufficient to quote the Court itself:

“Having thus defined . . . the legal relations between the Parties...
the Court has completed its task. It is unable to give any practical
advice as to the various courses which might be followed with a
view to terminating the asylum, since, by doing so, it would depart
from its judicial function. But it can be assumed that the Parties,
now that their mutual legal relations have been made clear, will be
able to find a practical... solution...” U.C.J. Reports 1951, p. 83.)

That this new concept must be rejected as in contradiction with the role
of an international tribunal appears to me to be clear simply from the
observation that an international court is not a federal tribunal; the
States—of which there are now not many—which come before the Court
do not do so to receive advice, but to obtain judicial confirmation of the
treaty commitments which they have entered into according to established
international law, in relation to a situation with which they are well
acquainted. The Court saw all this in the Judgment in the Fisheries case,
in which the special nature of the situation was the dominant feature in
the decision (1.C.J. Reports 1951, Judgment of 18 December 1951); by
seeking to effect, under cover of a case limited to Icelandic fisheries, a
pronouncement of universal effect the Court contradicts its whole pre-
vious attitude. As long ago as 1963, Charles De Visscher wrote in his
commentary on judicial interpretation:

“The function of interpretation is not to perfect a legal instrument
with a view to adapting it more or less precisely to what one may

67
FISHERIES JURISDICTION (DISS. OP. GROS) 239

be tempted to envisage as the full realisation of an objective which
was logically postulated, but to shed light on what was in fact the
will of the Parties.”

There could be no better riposte to the philosophy which inspires the
Judgment and the postulates it contains (particularly paras. 36-40).

(Signed) André Gros.

68


PLATEAU CONTINENTAL (ARRÊT) 54

1) la configuration générale des côtes des Parties et la présence de toute
caractéristique spéciale ou inhabituelle;

2) pour autant que cela soit connu ou facile à déterminer, la structure
physique et géologique et les ressources naturelles des zones de
plateau continental en cause;

3) le rapport raisonnable qu’une délimitation opérée conformément à
des principes équitables devrait faire apparaître entre l'étendue des
zones de plateau continental relevant de l'Etat riverain et la longueur
de son littoral mesurée suivant la direction générale de celui-ci,
compte tenu à cette fin des effets actuels ou éventuels de toute autre
délimitation du plateau continental effectuée entre Etats limitrophes
dans la même région.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le vingt février mil neuf cent soixante-neuf, en quatre
exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement de la Répu-
blique fédérale d'Allemagne, au Gouvernement du Royaume du Dane-
mark et au Gouvernement du Royaume des Pays-Bas,

Le Président,
(Signé) J. L. BUSTAMANTE R.

Le Greffer,
(Signé) S. AQUARONE.

Sir Muhammad ZAFRULLA KHAN, juge, fait la déclaration suivante:

Je souscris à l'arrêt dans son intégralité mais voudrais ajouter les ob-
servations ci-après.

Le différend entre les Parties se ramène pour l'essentiel à ceci: le
Danemark et les Pays-Bas soutiennent que la délimitation effectuée entre
eux conformément à l’accord du 31 mars 1966 lie la République fédérale
et que celle-ci est tenue d’accepter la situation ainsi créée, dans laquelle
son plateau continental se trouverait limité au triangle formé par les
lignes ABE et CDE de la carte 3. La République fédérale rejette caté-
goriquement cette thèse.

Or, non seulement l’article 6 de la Convention de Genève de 1958
n’est pas opposable à la République fédérale, mais la délimitation ef-
fectuée par l'accord du 31 mars 1966 ne procède pas des dispositions
dudit article, puisque le Danemark et les Pays-Bas ne sont ni des Etats
«dont les côtes se font face » au sens du premier paragraphe de cet article,
ni des Etats «limitrophes » au sens du second paragraphe. La situation

55
PLATEAU CONTINENTAL (DÉCL. ZAFRULLA KHAN) 55

créée par cette délimitation, dans les effets qu’elle a pour la République
fédérale, n’est par conséquent pas due à l’application du principe énoncé
dans l’un ou l’autre de ces deux paragraphes de l’article 6 de la Conven-
tion.

Le paragraphe 2 de l'article 6 eût-il été applicable à la délimitation du
plateau continental entre les Parties que la ligne de délimitation déter-
minée par application du principe de l’équidistance aurait dû tenir compte
de la configuration de la côte de la République fédérale comme d’une
«Circonstance spéciale ».

Au cours de la procédure orale, le Danemark et les Pays-Bas n’ont pas
présenté la thèse suivant laquelle le principe « équidistance-circonstances
spéciales » se serait cristallisé en une règle de droit international coutumier
comme l'un des termes d'une alternative, l’autre étant que ce principe
serait inhérent à la notion même de plateau continental. Dans son arrêt
la Cour a cru devoir examiner ces deux thèses comme si elles avaient été
présentées sous la forme d’une alternative et étaient par conséquent
compatibles l'une avec l'autre, et la Cour a rejeté chacune d'elles au fond.
Je souscris dans les deux cas au raisonnement de l’arrêt. Mais ie crois
utile de signaler que l’agent du Danemark et des Pays-Bas a résumé la
position des deux gouvernements quant à l’effet de la Convention de 1958
de la façon suivante:

«fLes deux gouvernements] n'ont pas soutenu que la Convention
consacrait des règles déjà reçues de droit coutumier en ce sens qu’elle
était simplement déclaratoire des règles existantes. [ls estiment
plutôt que la doctrine des droits exclusifs d’un Etat riverain sur le
plateau continental adjacent se trouvait en voie de formation entre
1945 et 1958; que la pratique des Etats antérieure à 1958 témoignait
de variations fondamentales quant à la nature et à la portée des
droits revendiqués: qu'en conséquence, dans la pratique des Etats, la
doctrine en voie de formation ne définissait nullement ces éléments
essentiels pas plus qu’elle ne définissait le régime juridique applicable
aux Etats riverains en ce qui concerne le plateau continental; que
la définition et la consolidation du droit coutumier en voie de for-
mation s'étaient effectuées grâce aux travaux de la Commission du
droit international, aux réactions des gouvernements devant l'œuvre
de la Commission et aux débats de la conférence de Genève; que ce
droit coutumier en formation, désormais plus précis sur la double
question des droits des Etats riverains et du régime applicable, s'est
cristallisé du fait de l’adoption de la Convention sur le plateau
continental par la conférence; et que les nombreuses signatures et
ratifications recucillies par la Convention, ainsi que la pratique des
Etats s'inspirant des principes énoncés dans la Convention, ont eu
pour effet de consolider ces principes en tant que droit coutumier. »

Si Pon admet que la doctrine des droits exclusifs de l'Etat riverain sur
le plateau continental adjacent à sa côte était en voie de formation entre

56

PLATEAU CONTINENTAL (DÉCL. BENGZON) 56

1945 et 1958 et que la pratique des Etats antérieure à 1958 ne fournissait
aucune définition, ni de certains éléments essentiels ni du régime juri-
dique applicable à l'Etat riverain en ce qui concerne le plateau continental,
on doit, semble-t-il, en tirer la conclusion que le principe de l’équidis-
tance n'était pas inhérent à la notion de plateau continental.

M. BENGZON, juge,"fait la déclaration suivante:

Je regrette de ne pouvoir souscrire aux conclusions principales émises
par la majorité de la Cour. Je suis d'accord avec ceux de mes collègues qui
soutiennent que l’article 6 de la Convention de Genève constitue le
droit international applicable et qu'entre les Parties la règle de délimi-
tation est l'équidistance, cette règle pouvant même être déduite des
principes généraux de droit.

M. BUSTAMANTE Y Rivero, Président, MM. Jessup, PADILLA NERVO et
AMMOUN, juges, joignent à l'arrêt les exposés de leur opinion individuelle.

M. KoreTsky, Vice-Président, MM. TANAKA, MORELLI, LACHS, juges,
et M. SORENSEN, juge ad hoc, joignent à l’arrêt les exposés de leur opinion
dissidente.

(Paraphé) J. L. B.-R.
(Paraphé) 8. A.

57


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
TEMPLE OF PREAH VIHEAR

(CAMBODIA v. THAILAND)

ORDER OF 10 JUNE 1960

1960

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU TEMPLE DE
PREAH VIHEAR

(CAMBODGE c. THAILANDE)

ORDONNANCE DU 10 JUIN 1960
This Order should be cited as follows:

“Case concerning the Temple of Preah Vihear
(Cambodia v. Thailand),
Order of 10 June 1960: I.C.J. Reports 1960, p. 180.”

La présente ordonnance doit être citée comme suit:

« Affaire du Temple de Préah Vihéar
(Cambodge c. Thaïlande),
Ordonnance du 10 juin 1960: C. I. J. Recueil 1960, p. 180. »

Sales number 9 30
N° de vente: 4

180

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1960

10 juin 1960

AFFAIRE DU TEMPLE DE
PRÉAH VIHÉAR

(CAMBODGE c. THAÏLANDE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

vu l’article 48 du Statut de la Cour et l’article 62 du Règlement
de la Cour;

Vu l’ordonnance du 5 décembre 1959 fixant au 23 mai 1960 la
date d’expiration du délai pour le dépôt du contre-mémoire du
Gouvernement de Thaïlande ;

Considérant que, dans le délai ainsi fixé, le Gouvernement de
Thaïlande a déposé certaines exceptions préliminaires à la compé-
tence de la Cour;

Considérant qu’en conséquence, en vertu des dispositions de
l’article 62, paragraphe 3, du Règlement de la Cour, la procédure
sur le fond est suspendue et qu’il échet de fixer un délai dans lequel
la Partie adverse pourra présenter un exposé écrit contenant ses
observations et conclusions sur les exceptions préliminaires;

Fixe au 22 juillet 1960 la date d'expiration du délai dans lequel
le Gouvernement du Cambodge pourra présenter un exposé écrit
contenant ses observations et conclusions sur les exceptions soule-
vées par le Gouvernement de Thaïlande.

4

1960
Le 10 juin
Rôle général
n° 45
TEMPLE DE PREAH VIHÉAR (ORD. DU IO VI 60) 181

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, 4 La Haye, le dix juin mil neuf cent soixante, en
trois exemplaires, dont l'un restera déposé aux archives de la Cour
et dont les autres seront transmis respectivement au Gouvernement
du Cambodge et au Gouvernement de Thailande.

Le Président,
(Signé) Helge KLAESTAD.

Le Greffier adjoint,
(Signé} GARNIER-COIGNET.


CONSEIL DE L'OACI (DÉCL. ZAFRULLA KHAN) 71

Sir Muhammad ZAFRULLA KHAN, Président, fait la déclaration
suivante:

A mon grand regret, il m'est impossible d'admettre que l'article 84
de la Convention, rapproché des articles 5, paragraphe 4, 15 et 18 du
Règlement pour la solution des différends, prévoie le droit d'appeler d'une
décision par laquelle le Conseil de l'OACI rejette une exception prélimi-
naire soutenant qu'il n’a pas compétence pour connaître d'une requête ou
d’une plainte. Il me semble que les considérations qui ont amené la Cour à
la conclusion contraire montrent simplement qu'une disposition à cet effet
serait souhaitable. Si souhaitable que cela soit, cependant, cette constata-
tion ne saurait rernédier à l'absence d’une clause semblable dans la Con-
vention, complétée par les articles pertinents du Règlement. Le plan
général du Règlement exclut la possibilité d’un appel d’une décision du
Conseil rejetant une exception préliminaire contre sa compétence. Pour
rectifier cette situation, à supposer qu'on le juge opportun, il convien-
drait d’amender Ia Convention et le Règlement, et non de leur prêter
un sens qu'ils ne peuvent avoir.

Je ne pense pas non plus que l'article If, section I, de l'Accord de
transit n’envisage que les cas d’injustice ou de préjudice causés par des
mesures licites mais préjudiciables, ni que, dans la mesure où une plainte
déposée aux termes de cette section fait état de mesures illicites comme
cause de l'injustice ou du préjudice allégués, la plainte puisse être assi-
milée à une requête pour ce qui est de la possibilité d’interjeter appel
devant la Cour.

Cependant, la Cour ayant conclu que le Conseil de l'OACTI a compé-
tence pour connaître de la requête et de la plainte qui lui ont été soumises
par le Gouvernement du Pakistan le 3 mars 1971, conclusion à laquelle
je m'associe pleinement, mon désaccord au sujet de la recevabilité de
l'appel de l'Inde revêt un caractère purement académique.

Une grande partie de la plaidoirie du conseil de l’Inde devant la Cour
a été consacrée à l’exposé des irrégularités de procédure qui auraient
été commises par le Conseil de l'OACI lors de l'examen de l'exception
préliminaire soulevée par l'Inde contre la compétence du Conseil pour
connaître de la requête et de la plainte du Pakistan. Cet exposé visait à
convaincre la Cour que la procédure devant le Conseil avait été viciée par
ces prétendues irrégularités et que la décision du Conseil sur l'exception
préliminaire de l'Inde était pour cette raison nulle et de nul effet et devait
être infirmée.

Ces irrégularités dont on fait état rentrent dans deux catégories
principales: celles qui concernent la méthode suivie pour parvenir à la
décision attaquée et celles qui tiennent au fait que le Conseil n'aurait pas
respecté les prescriptions de l’article 15 du Règlement pour la solutron des
différends.

En ce qui concerne la première catégorie, les objections et affirmations
de l'Inde ont été abondamment débattues au Conseil (annexe E, e), Débat,
au mémoire du Gouvernement indien, par. 50-84) et les décisions du

29
CONSEIL DE L’OACI (DÉCL. ZAFRULLA KHAN) 72

président ont été confirmées par celui-ci. Rien de ce qu’a pu dire à cet
égard le conseil de l'Inde devant la Cour n'a fait naître un doute quelcon-
que dans mon esprit à propos de la régularité ou de l'opportunité des
décisions du président et de la procédure suivie par le Conseil.

Pour ce qui est de la seconde catégorie, il suffit pour réfuter les objec-
tions de l'Inde de constater que l’article 15 du Règlement pour la solution
des différends ne se rapporte aucunement à une décision relative à une
exception préliminaire. La question des exceptions préliminaires et de
leur suite fait l’objet de l’article 5 du Règlement, dans le chapitre III qui
traite de la suite que comportent les requêtes. Cet article a un caractère
autonome et il épuise le sujet des exceptions préliminaires. La procédure
prévue pour leur examen est définie au paragraphe 4, ainsi libellé: « Si une
exception préliminaire est soulevée, le Conseil, après avoir entendu les
parties, rend une décision sur cette question préjudicielle avant toute
mesure à prendre en vertu du présent Règlement. » C'est exactement ce que
le Conseil a fait.

L'article 15 du Règlement se trouve au chapitre IV, qui définit les
règles applicables à la « procédure » qui s'engage après qu'une exception
préliminaire a été rejetée et qui concerne le fond d’une affaire. L'article 15,
intitulé « Décision », concerne manifestement une décision au fond, et ne
revient pas sur la décision prise sur une exception préliminaire en tant que
question préjudicielle avant que s ‘engage la procédure au fond.

Le procès-verbal des débats au Conseil ne fait pas apparaître que l'Inde
ait insisté pour que le Conseil se conforme aux prescriptions de l'article
15. Même devant la Cour, certaines irrégularités ont été évoquées pour
la première fois dans la plaidoirie du conseil de l'Inde, qui a mentionné
encore d’autres irrégularités dans sa réplique. Quoi qu’il en soit, il est
clair que l'article 15 du Règlement ne s'applique nullement à une déci-
sion sur une exception préliminaire. C’est ce que le Conseil a supposé à
juste titre et aucun de ses membres n'a exprimé d’avis contraire.

M. LACHS, juge, fait la déclaration suivante:

Estimant que certaines observations doivent être faites sur divers
aspects de l’arrêt, je me prévaux du droit conféré par l’article 57 du Statut
de la Cour pour présenter la déclaration qui suit.

I

Je souscris pleinement aux conclusions de la Cour concernant sa
compétence pour connaître de l’appel, mais n’en voudrais pas moins
formuler des observations complémentaires sur l'interprétation de
l'article 84 de la Convention de Chicago relative à l'aviation civile interna-

30