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Published online by Cambridge University Press: 20 April 2017
The twenty-ninth year of the Court at The Hague was marked by sustained and fruitful activity. Two judgments were handed down in the Colombian-Peruvian Case Relating to Asylum, and four advisory opinions were given at the request of the General Assembly of the United Nations. Proceedings in the Franco-Egyptian Case on Protection of French Nationals in Egypt were discontinued. At the close of the year four cases were on the Court’s list: the Anglo-Norwegian Fisheries Case, the Rights of American Nationals in Morocco Case, a second Colombian-Peruvian Asylum Case, and a request for an advisory opinion concerning Reservations to the Genocide Convention. The progress registered during the year in the extension of the Court’s jurisdiction was disappointingly slight.
This is the twenty-ninth in the writer’s series of annual artieles on the World Court, the publication of which was begun in this Journal, Vol. 17 (1923), p. 15.
1 A list of the numerous documents submitted with the request was annexed to the opinion.
2 I. C. J. Reports, 1949, pp. 241-242.
3 These statements are reproduced in Document Distr. 50/17.
4 I. C. J. Reports, 1950, pp. 4-57; this Journal, Vol. 44 (1950), p. 582.
5 See this Journal, Vol. 42 (1948), p. 17.
6 The text of the application is reproduced in the Pleadings, Oral Arguments, Documents relating to the case, p. 8. See also this Journal, Vol. 44 (1950), pp. 22-23.
7 The writer regrets an error, due to misinformation, in reporting the issuance of such an order in this Journal, Vol. 44 (1950), p. 24.
8 I. C. J. Reports, 1950, pp. 59-60.
9 I. C. J. Reports, 1949, pp. 229-231.
10 I. C. J. Reports, 1950, pp. 65-119; this Journal, Vol. 44 (1950), p. 742.
11 Series B, No. 5. See also 1 Hudson, World Court Reports, p. 190.
12 Series B, No. 5, p. 27.
13 League of Nations Official Journal, 1923, pp. 1336-1337, 1501-1502.
14 The three articles read as follows:
“1. Except where another procedure is specifically provided under any article of the present Treaty, any dispute concerning the interpretation or execution of the Treaty, which is not settled by direct diplomatic negotiations, shall be referred to the Three Heads of Mission acting under Article 35, except that in this case the Heads of Mission will not be restricted by the time-limit provided in that Article. Any such dispute not resolved by them within a period of two months shall, unless the parties to the dispute mutually agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member selected by mutual agreement of the two parties from nationals of a third country. Should the two parties fail to agree within a period of one month upon the appointment of the third member, the Secretary-General of the United Nations may be requested by either party to make the appointment.
“2. The decision of the majority of the members of the Commission shall be the decision of the Commission, and shall be accepted by the parties as definitive and binding.” “ I. C. J. Reports, 1950, pp. 121-123.
15 I. C. J. Reports, 1950, pp. 121-123.
16 I. C. J. Reports, 1950, pp. 221-261; this Journal, Vol. 44 (1950), p. 752.
17 U. N. Doc. A/1443, Oct. 16, 1950.
18 U. N. Docs. A/1450 and A/1469, Oct. 19 and 30, 1950.
19 In the additional resolution 337 (IV) of Dec. 6, 1949, the General Assembly expressed its regret that the Union of South Africa had withdrawn its “previous undertaking” to submit reports for the information of the United Nations.
20 I. C. J. Reports, 1949, pp. 270-271.
21 The writer is in possession of a printed statement of 33 pages on behalf of the International League for the Eights of Man.
22 I. C. J. Reports, 1950, pp. 128-219; this Journal, Vol. 44 (1950), p. 757.
23 The text of the Mandate is reproduced in 1 Hudson, International Legislation, pp. 57-60; also in this Journal, Supp., Vol. 17 (1923), p. 175.
24 The resolution provided in part that the Assembly:
“3. Recognizes that, on the termination of the League’s existence, its functions with respect to the mandated territories will come to an end, but notes that Chapters XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League;
“4. Takes note of the expressed intentions of the Members of the League now administering territories under Mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective Mandates, until other arrangements have been agreed between the United Nations and the respective mandatory Powers” (League of Nations Official Journal, Spec. Supp. No. 194, pp. 278-279).
25 League of Nations Official Journal, 1923, pp. 211, 300.
26 This paragraph reads aa follows:
“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted [Fr., soit soumis] to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations....”
27 Perhaps it may be thought that in consequence of the introductory words in Article 7 (2) of the Mandate—”The Mandatory agrees”—the South African Union itself cannot invoke the Court’s jurisdiction against the other states; in approving the Mandates, the Council of the League of Nations did not have power to bind all Members to accept the Court’s jurisdiction.
28 Article 75 reads: “The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories.”
Article 77 reads:
“1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:
“a. territories now held under mandate;
“b. territories which may be detached from enemy states as a result of the Second World War; and
“c. territories voluntarily placed under the system by states responsible for their administration.
“2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.”
29 Article 80 (2) reads: “Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.”
30 P. C. I. J., Series A/B, No. 42, p. 116. In that case, the parties had accepted a recommendation of the Council of the League of Nations ‘ ‘ to enter into direct negotiations as soon as possible.” It is not without interest that some national legislation—for example, that of the United States—imposes a duty on employers and employees in certain cases to exert every reasonable effort to make agreements.
31 Resolutions adopted by the General Assembly, First Sess., Pt. I, Jan. 10-Feb. 14, 1946, p. 35.
32 I. C. J. Reports, 1950, p. 266; this Journal, below, p. 179.
33 Colombia, Tratados, Convenciones y Acuerdos aprobados por el Congreso Nacional de 1913, p. 15; Peru, 2 Tratados, Convenciones y Acuerdos vigentes (1936), p. 162.
34 132 League of Nations Treaty Series, p. 323; 4 Hudson, International Legislation, p. 2412; this Journal, Supp., Vol. 22 (1928), p. 158. When this Convention was adopted by the Sixth International Conference of American States in 1928, the Delegation of the United States made an “explicit reservation” that “the United States does not recognize or subscribe to as part of international law, the so-called doctrine of asylum.” Ibid., p. 159. Ratifications of the Convention were deposited by fourteen American states, including Colombia and Peru.
35 6 Hudson, International Legislation, p. 607; this Journal, Supp., Vol. 28 (1934), p. 70.
36 Article 2 (4) (item 3) provides: “The Government of the State may require that the refugee be sent out of the national territory within the shortest time possible; and the diplomatic agent of the country who has granted asylum may in turn require the guaranties necessary for the departure of the refugee with due regard to the inviolability of his person, from the country.”
37 According to a despatch appearing in the New York Times in the early morning of Nov. 20, 1950, somewhat accurate forecasts as to the contents of the judgment seem to have been current at The Hague on the day before the judgment was announced.
38 I. C. J. Reports, 1950, p. 395. Judges Zoriêic, Badawi Pasha and Azevedo did not participate in this phase of the ease.
39 Art. 7 of this Protocol provides: “Colombia and Peru solemnly bind themselves not to make war on each other nor to employ force, directly or indirectly, as a means of solving their present problems or any others that may arise hereafter. If in any eventuality they fail to solve such problems by direct diplomatic negotiations, either of the High Contracting Parties may have recourse to the procedure established by Article 36 of the Statute of the Permanent Court of International Justice, nor may the jurisdiction of the Court be excluded or limited by any reservations that either Party may have made when subscribing to the Optional Clause.
“Sole sub-section. In this case, when judgment has been delivered, the High Contracting Parties undertake to concert means of putting it into effect. Should they fail to reach an agreement, the necessary powers shall be conferred upon the Permanent Court, in addition to its ordinary competence, to make effective the judgment in which it has declared one of the High Contracting Parties to be in the right.” 164 League of Nations Treaty Series, p. 21.
40 I. C. J. Reports, 1949, pp. 234-235. See this Journal, Vol. 44 (1950), p. 22.
41 I. C. J. Reports, 1950, pp. 62, 263. The time-limit was later extended.
42 Press Release No. 1111, of Oct. 27, 1950.
43 Department of State Bulletin, Vol. 22, No. 550 (Jan. 16, 1950), p. 98.
44 The Department of State announced on Oct. 27, 1950, that in view of the application being made to the Court, the President had decided to make no determination regarding compliance with treaties until the decision of the Court had been given.
45 The Convention has effect from January 12, 1951. For text of Convention and reservations see Supplement to this Journal, p. 7.
46 Under a resolution of the General Assembly of Dec. 3, 1949, invitations to sign or accede to the Convention were extended to each non-member of the United Nations which is or may become an active member of a specialized agency or a party to the Court’s Statute. Under Art. XI of the Convention, all of the nineteen non-member states which received such an invitation were permitted to accede after January 1, 1950.
47 For text of reservations see this Journal, Vol. 44 (1950), p. 128.
48 The Secretariat of the United Nations deserves an accolade for its ingenuity in arranging for the simultaneous deposit of five ratifications or accessions on Oct. 14, 1950, thus obviating a delicate question.
49 I. C. J. Reports, 1950, p. 406.
50 Paraguay is also included in the list published in the Court’s Yearbook for 1949-1950, pp. 44, 165. Ethiopia and Greece, as parties to the Geneva General Act of Sept. 26, 1928, have recognized the jurisdiction of the Court provided for in that Act.
51 In the course of the drafting of the Convention by the Sixth Committee of the General Assembly, the Delegation of the United Kingdom withdrew its proposal to impose criminal responsibility on states (U.N. Doc. A/C.6/236) and supported the imposition of civil responsibility. General Assembly, 3rd Seas., Pt. I, Official Records, Sixth Committee, pp. 428, 440.
52 In presenting the Convention for the advice and consent of the Senate on June 16, 1949, the President of the United States endorsed a recommendation by the Acting Secretary of State that such action be taken “with the understanding that article IX shall be understood in the traditional sense of responsibility to another state for injuries sustained by nationals of the complaining state in violation of principles of international law, and shall not be understood as meaning that a state can be held liable in damages for injuries inflicted by it on its own nationals.” This understanding was recommended by a subcommittee to the Senate Committee on Foreign Relations on May 23, 1950. In view of the conclusion stated above, no statement of such an understanding would seem to be needed.
53 The Borchgrave Case in 1938.
54 As employed here, the term “documents of the written proceedings” does not embrace applications or special agreements.
55 The practice is explained in detail in Hudson, Permanent Court of International Justice, 1920-1942, pp. 559-560.
56 In the Supreme Court of the United States, where proceedings to which States of the United States are parties are not infrequent, “briefs in all cases are made available to the public upon riling, and there is no restriction placed upon the parties as to their release,” but due to the limited number of copies available “copies of the briefs are not supplied to persons requesting them until after a case has been decided.” Letter of the Clerk, Nov. 9, 1950.
57 Such a trial may not be precluded, however. See an editorial on the Colombian-Peruvian Asylum Case published in the New York Times on Nov. 19, 1950, the day before the Court’s judgment in that case was handed down.
58 See Series D, No. 2 (2d addendum), pp. 173-174.
59 In consequence, the writer of this article has been under the handicap of having at hand none of the documents of the written proceedings in the case decided by the Court during the year.
60 The ban on publication was lifted in 1932. See the writer ‘s comment in this Journal, Vol. 26 (1932), p. 807.