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The World Court and the Interpretation of Constitutive Treaties

Some Observations on the Development of an International Constitutional Law*

Published online by Cambridge University Press:  28 March 2017

Edward Gordon
Edward Gordon*
Affiliation:
L.L.B., Yale University; Diploma in International Law, University of Cambridge
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Type
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American Journal of International Law , Volume 59 , Issue 4 , October 1965 , pp. 794 - 833
Copyright
Copyright © American Society of International Law 1965

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Footnotes

*

This article is based upon work done in preparation for a thesis submitted for the Diploma in International Law at the University of Cambridge.

References

1 For our purposes, the two institutions can be treated as one and will be sometimes referred to herein as “the Court.“

2 Cf.Aréchaga, “The International Court of Justice and the Judicial Settlement of International Disputes,” International Law in a Changing World 54-55 (1963).

3 Schechter, Interpretation of Ambiguous Documents by International Administrative Tribunals (1964).

4 Ibid.at 114.

5 Compare Lord McNair's comprehensive Law of Treaties, Part Two (1938), with Grotius’ De Jure Belli ac Pacis Libri Tres, Bk. II, Ch. 16, and Vattel's Le Droit des Gens, Bk. II, Ch. 17.

6 See Pound, ‘ ‘ Hierarchy of Sources and Norms in Different Systems of Law,'’ 7 Tulane Law Bev. 475 (1933).

7 On the limits of rules in international law, see Dillard, ‘ ‘ Some Aspects of Law and Diplomacy,” 91 Hague Academy Recueil des Cours 447, 490 (1957); and Falk and Mendlovitz, “Towards a Warless World: One Legal Formula to Achieve Transition,” 73 Yale Law J. 399, 401-402 (1964).

8 Pound, note 6 above; and Dillard, note 7 above, at 477 and 481.

9 Cf. Note, “Modern Trends in Legal Education,” 64 Columbia Law Bev. 710, 715 (1964) (“Older casebooks used legal concepts, for example, ‘mutual assent,’ ‘offer and acceptance,’ as the basis for classification. While modern casebooks employ this approach in acquainting students with the meanings and limits of technical legal concepts, they have increasingly recognized that such concepts are not uniformly applied in certain recurrent types of factual situations, and that to attempt to maintain a theoretical unity of legal doctrine in the face of the growing diversity is a distortion. Authors have sought to discover factual subgroupings of cases that are more significant than those denned by the traditional legal concepts.“—Citations omitted).

10 H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” 26 Brit. Tr. Bk. Int. Law 48, 53 (1949). Cf.Certain Expenses of the United Nations, [1962] I.C.J. Rep. at 187 (separate opinion, Judge Spender); and Pollux, “Interpretation of the Charter,” 23 Brit. Yr. Bk. Int. Law 54, 67 (1946).

11 See, for example, Employment of Women, P.C.I.J., Ser. A/B, No. 50, at 383 (dissenting opinion, Judge Anzilotti) ; and Certain Expenses, note 10 above, at 230 (dissenting opinion, Judge Winiarski); and cf.Lauterpacht, note 10 above, at 73.

12 Lauterpacht, note 10 above, passim.

13 See The Wimbledon,P.C.I.J., Ser. A, No. 1, at 37 (joint dissenting opinion, Judges Anzilotti and Huber); Corfu Channel, [1949] I.C.J. Rep. at 73 (dissenting opinion, Judge Krylov); Separations for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Rep. at 198 (dissenting opinion, Judge Hackworth); and Certain Expenses, note 10 above, at 233 (dissenting opinion, Judge Winiarski) and 272 (dissenting opinion, Judge Koretsky).

14 See Reparations, note 13 above, at 182 (majority opinion). See also Lauterpacht, note 10 above, at 68; Fitzmaurice, “Law and Procedure of the International Court of Justice 1951-54: Treaty Interpretation and Other Treaty Points,” 33 Brit. Tr. Bk. Int. Law 203, 204-205 (1957); and Ago, “The State and International Organization,” International Law in a Changing World, especially pp. 18 et seq.(1963).

15 The phrase “international constitutional law” is admittedly not free from ambiguities. See Opsahl, “An ‘International Constitutional Law'?”, 10 Int. and Comp. Law Q. 760 (1961), especially note 34, p. 768. As used here, it is descriptive of a broad and systematic hierarchy of those norms which relate to international organizations and which are appropriate for legal analysis and application. It closely parallels what Opsahl calls “the law of international institutions” and is meant to be somewhat more inclusive than what he calls “the constitutional law of international organizations.” Ibid,at 777. Compare Jenks, The Common Law of Mankind 23 (1958).

16 See Interpretation of Greco-Turkish Agreement, P.C.I. J., Ser. B, No. 16, at 19; cf.German Minority Schools in Upper Silesia, P.C.I.J., Ser. A/B, No. 40, at 19; and Certain Expenses, note 10 above, at 184 (separate opinion, Judge Spender).

17 McDougal and Gardner, “The Veto and the Charter: An Interpretation for Survival,” 60 Tale Law J. 258 at 262, note 21 (1951).

18 “it is precisely because words used in an instrument rarely have exact and single meanings, and because all possible situations which may arise under it cannot … or … are not foreseen and expressly provided for by the parties at the time of its drafting that the necessity for interpretation occurs.” Harvard Research Draft on Treaties 946 (1935). See other sources cited by McDougal and Gardner, note 17 above. Cf.Territory of South-West Africa (Voting Procedure), [1955] I.C.J. Rep. at 96 (separate opinion, Judge Lauterpacht); Certain Expenses, note 10 above, at 184 (separate opinion, Judge Spender); South-West Africa Cases, [1962] I.C.J. Rep. at 402 (separate opinion, Judge Jessup); and Opsahl, note 15 above, at 782.

19 See note 11 above.

20 see Lauterpacht, note 10 above, at 52.

21 See McDougal and Gardner, note 17 above, at 265.

22 See, for example, Competence of the ILO to Regulate Incidentally the Work of Employers, P.C.I.J., Ser. B, No. 13, at 22. Cf.South-West Africa Cases, note 18 above, and other cases concerning the mandate-trusteeship problem of South-West Africa.

23 See McDougal and Gardner, note 17 above, at 262.

24 But see Certain Expenses, note 10 above, at 230 (dissenting opinion, Judge Winiarski) (“The intention of those who drafted the [TJ.N. Charter] was clearly to abandon the possibility of useful action rather than to sacrifice the balance of carefully established fields of competence, as can be seen, for example, in the case of the voting in the Security Council… . It may be that the United Nations is sometimes not in a position to undertake action which would be useful for the maintenance of international peace and security or for one or another of the purposes indicated in Article I of the Charter, but that is the way in which the Organization was conceived and brought into being.“).

25 See- Judge Bead's dissenting opinion in Anglo-Iranian Oil Co. (U.K. v.Iran), [1952] I.C.J. Rep. at 143-144.

26 United Nations Charter, preamble. Cf.Arts. 34 and 36 of the Statute of the International Court of Justice.

27 Cf.Elias, “The Expanding Frontiers of Public International Law,” International Law in a Changing World 103 (1963).

28 Cf.Certain Expenses, note 10 above, at 221 (separate opinion, Judge Morelli).

29 “ The function of authentic interpretation is not t o determine the true meaning of the legal norm thus interpreted, but to render binding one of several meanings of a legal norm, all equally possible from a logical point of view . “ Kelsen, Law of the United Nations, at xv (1950).

30 Cf.Dillard, note 7 above, at 454-455; and Falk and Mendlovitz, note 7 above, passim.

31 See Rosenne, The World Court 15 (1963); and Metzger, “Settlement of Disputes by Non-Judicial Means,” 48 A.J.I.L. 408 (1954).

32 Cf.Dissenting opinion of Justice Brandeis in International News Service v.The Associated Press, 248 U. S. 215, 248 (1918).

33 Cf. Dillard, note 7 above, at 490; D. Hammarskjold, “Liberty and Law in International Life,” International Law in a Changing World 27 (1963); and South-West Africa Cases, note 18 above, at 466 (joint dissenting opinion, Judges Spender and Fitzmaurice).

34 See the Proceedings of the Fourth Summer Conference on International Law, Cornell Law School, 1962 (“Cornell Conference“), at 38 (remarks of Prof. Carlston).

35 Cf.Dillard, note 7 above, at 455-456 and 487; and Certain Expenses, note 10 above, at 283 (dissenting opinion, Judge Koretsky).

36 See Cornell Conference, passim.See also Constitution of the Maritime Safety Committee of IMCO, [1960] I.C.J. Rep. at 165 et seq.(majority opinion) and 175 (dissenting opinion, Judge Koretsky).

37 For example, Exchange of Greek and Turkish Population, P.C.I.J., Ser. B, No. 10, at 17; Competence of the LLO to Regulate Incidentally the Work of Employers, P.C.I.J., Ser. B, No. 13, at 23; Conditions of Admission of a State to Membership in the United Nations, [1947-48] I.C.J. Rep. at 61 (majority opinion); Competence of the General Assembly for the Admission of a State to the United Nations, [1950] ibid.at 6-7 (majority opinion); and Certain Expenses, note 10 above, at 155-156 (majority opinion).

38 Compare Art. 14 of the Covenant of the League of Nations with Art. 65 of the Statute of the I.C.J. See also the Conditions of Admission case, note 37 above (separate opinion, Judge Azevedo); and Gilmore, “The International Court of Justice,” 55 Tale Law J. 1049 at 1054, note 19 (1946). But see Briggs, “The United Nations and Political Decision of Legal Questions,” 1948 Proceedings, American Society of International Law 42-53, with discussion at 70 ff.

39 See Gilmore, note 38 above, at 1060. Compare Professor Wright's remarks, Cornell Conference 16, with those of Pollux, note 10 above, at 55, note 3. Cf.Rosenne, International Court of Justice 2-3 (1961).

40 Palk and Mendlovitz, note 7 above, at 401. See also Professor Falk's remarks, Cornell Conference 38; and the Conditions of Admission case, note 37 above, at 69 (separate opinion, Judge Alvarez).

41 Conditions of Admission, note 37 above, at 70 (separate opinion, Judge Alvarez). Cf.Conditions of Admission, note 37 above, at 84-85 (joint dissenting opinion, Judges McNair, Basdevant, Winiarski and Bead); and the Certain Expenses case, note 10 above, at 254 (dissenting opinion, Judge Koretsky).

42 See Dillard, note 7 above, at 496.

43 Hudson, “The Twenty-Sixth Tear of the World Court,” 42 A.J.I.L. 16 (1948).

44 See Rosenne, note 39 above, at 13. The wish for law to remain free from social tendencies or influences lingers, however. See the Competence of the General Assembly case, note 37 above, at 23 (dissenting opinion, Judge Azevedo).

45 See Palk and Mendlovitz, note 7 above, at 401.

46 See Dillard, note 7 above, at 486-487.

47 Art. 4, Statute of the I.C.J.

48 Cf.Aréchaga, note 2 above.

49 Cf.Dillard, note 7 above, at 474.

50 Cf. Voting Procedure, note 18 above, at 105 (separate opinion, Judge Lauterpacht).

51 Cf. Higgins, Development of International Law Through Political Organs of the United Nations 66-67, 309 (1963). See also Professor Carlston's remarks, Cornell Conference 34.

52 Gilmore, note 38 above, at 1062. See also Brierly, Law of Nations 369-371 (6th ed., Waldock ed., 1963); and Rosenne, note 39 above, at 1.

53 Lauterpacht, Development of International Law by the International Court 91 (1958).

54 1963] I.C.J. Rep. at 29.

55 See Dillard, ‘’ Tribute to Philip C. Jessup and Some Comments on International Adjudication,” 62 Columbia Law Rev. 1138, 1142-1143 (1962).

56 I t follows that this observer is unable to subscribe to Shabtai Rosenne 's conception of the “depoliticized and objective nature of the international judicial process“; see Rosenne, note 39 above, at 14. Nor is he persuaded by Erlich's distinction between “interpretation,” i.e.,finding a meaning, and “application,” i.e.,determining the consequences of a meaning. Compare Briggs, Law of Nations 896 (2d ed., 1952).

57 This imperfect distributive order serves merely to facilitate our inquiry by focusing attention on one discernible problem area at a time.

58 Certain Expenses, note 10 above, at 185 (separate opinion).

59 Note 13 above, at 182 (majority opinion).

60 Certain Expenses, note 10 above.

61 The principle of separability of nonessential provisions has been introduced to the Court. See Admission of Hearings of Petitioners by the Committee on South-West Africa, [1956] I.C.J. Rep. at 48-49 (separate opinion, Judge Lauterpacht); Southwest Africa Cases, note 18 above, at 408 (separate opinion, Judge Jessup).

62 Cf.Certain Expenses, note 10 above.

63 Lauterpacht, note 10 above, at 78. See also Admission of Hearings, note 61 above, at 48 (separate opinion, Judge Lauterpacht).

64 Lauterpacht, note 10 above, at 78. But this conception of law is by no means universally accepted. See Dillard, note 7 above, at 453-454; and, of course, Frank, Law and the Modern Mind (1930), especially Ch. 1 (“Why must law seem to be, what it is not, a virtually complete set of commands?“), at 11.

65 Cf.IMCO, note 36 above, passim.

66 See Status of South-West Africa, [1950] I.C.J. Rep. at 165 (separate opinion, Judge Bead); Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, [1954] I.C.J. Rep. at 92 (dissenting opinion, Judge Carneiro); and Certain Expenses, note 10 above, (dissenting opinions, Judges Winiarski and Koretsky). But see Reservations to the Genocide Convention, [1951] I.C.J. Rep. at 51-52 (dissenting opinion, Judge Alvarez); and Certain Expenses, note 10 above, at 304 (dissenting opinion, Judge Bustamante).

67 Cf . Polish Warships in Danzig, P.C.I.J., Ser. A/B, No. 43, at 144; Certain Expenses, note 10 above, at 184-185 (separate opinion, Judge Spender); and Fitzmaurice, note 14 above, at 204-205.

68 See Lauterpacht, note 10 above, at 76; Competence of the General Assembly, note 37 above, at 17 (dissenting opinion, Judge Alvarez). Cf.Admission of Hearings, note 61 above, at 58-59 (separate opinion, Judge Lauterpacht).

69 Lauterpacht, note 10 above, at 77-78.

70 See Eagleton, “The United Nations: Aims and Structure,” 55 Tale Law J. 974, 984 (1946).

71 See Pollux, note 10 above, at 55-56.

72 Note 36 above.

73 Note 37 above.

74 Ibid,.at 98 (dissenting opinion, Judge Zoričié).

75 P.C.I.J., Ser. B, No. 12.

76 P.C.I.J., Ser. A, No. 15.

77 Note 37 above. See pp. 62-63 (majority opinion), p. 86 (joint dissenting opinion, Judges McNair, Basdevant, Winiarski and Bead), and pp. 70-71 (separate opinion, Judge Alvarez). See also Free City of Danzig and the ILO, P.C.I.J., Ser. B, No. 18, at 10, on the requisites for membership in the International Labor Organization.

78 Note 13 above.

79 Note 10 above.

80 Holmes, “The Path of the Law,” 10 Harvard Law Rev. 457, 466 (1897).

81 Cf.Polish Postal Service in Danzig, P.C.I.J., Ser. B, No. 11, at 37; Minority Schools, P.C.I.J., Ser. A, No. 15, at 33-34; and Conditions of Admission, note 37 above, at 86 (joint dissenting opinion, Judges McNair, Basdevant, Winiarski and Read).

82 Turkey and Iraq Frontier, P.C.I.J., Ser. B, No. 12.

83 Ibid,at 31.

84 Note 18 above.

85 Competence of the ILO to Regulate Incidentally the Personal Work of Employers, P.C.I.J., Ser. B, No. 13. See p. 18.

86 Communities, P.C.I.J., Ser. B, No. 17, at 21.

87 lbid.,No. 16.

88 Ibid,at 25.

89 Ibid,at 20.

90 Ibid,at 20-22.

91 P.C.I.J., Ser. B, No. 18.

92 Ibid.,dissenting opinion, Judge Anzilotti.

93 Note 66 above.

94 Art. 80(2) states: “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.“

95 Note 18 above, at 99-100.

96 Ibid.

97 See Lauterpacht, note 10 above, at 77-78.

98 P.C.I.J., Ser. B, No. 14.

99 Ibid.,see p. 27 (majority opinion).

100 See Pollux, note 10 above, at 58.

101 See Exchange of Greek and Turkish Populations, P.C.I.J., Ser. B, No. 10, at 22.

102 P.C.I.J., Ser. A, No. 15.

103 See p. 40 of the majority opinion, p . 54 of Judge Huber's dissenting opinion, and pp. 60-61 of Judge Nyholm's dissenting opinion.

104 See also Exchange of Greek and Turkish Populations, P.C.I.J., Ser. B, No. 10, at 22; Free Zones, P.C.I.J., Ser. A/B, No. 46, at 21; Communities, P.C.I.J., Ser. B, No. 17, at 21; and IMCO, note 36 above, at 169 (majority opinion).

105 Exchange of Greek and Turkish Populations, P.C.I.J., Ser. B, No. 10, especially pp. 18-19.

106 Polish Postal Service in Danzig, ibid.,No. 11. See especially p. 37.

107 European Commission of the Danube, ibid.,No. 14, at 57-58. See also Pollux, note 10 above, at 77-78.

108 The Wimbledon,P.C.I.J., Ser. A, No. 1, at 25 et seq.

109 Interpretation of Greco-Turkish Agreement, P.C.I.J., Ser. B, No. 16, a t 25.

110 Ibid.

111 Status of South-West Africa, note 66 above, at 149 and 154 (separate opinion, Judge McNair). The majority rejected this search for analogy and precedent, however, at p. 132.

112 Status of South-West Africa, note 66 above; Admission of Hearings, note 61 above; and South-West Africa Cases, note 18 above. See also Voting Procedure, note 18 above (separate opinion, Judge Lauterpacht), on the voting procedure to be applied by the U.N. for functions taken over by it from the League of Nations.

113 IMCO, note 36 above, at 169 (majority opinion).

114 Certain Expenses, note 10 above. See particularly the dissenting opinion of Judge Moreno-Quintana, at 248.

115 Fitzmaurice, note 14 above, at 203-204.

116 Cf.McDougal and Gardner, note 17 above, passim.

117 See Voting Procedure, note 18 above, at 95 (separate opinion, Judge Lauterpacht). See, in general, Frank, note 64 above.

118 The Lotus,P.C.I.J., Ser. A, No. 10.

119 See pp. 31-33.

120 Interpretation of Greco-Turkish Agreement, P.C.I.J., Ser. B, No. 16. See p. 23.

121 Note 36 above.

122 Ibid. at 160 (majority opinion).

123 lbid.at 165 (majority opinion).

124 Ibid,at 165-166 (majority opinion).

125 Ibid,at 166 (majority opinion).

126 Certain Expenses, note 10 above, at 163 and 172 (majority opinion).

127 Ibid,at 163 (majority opinion). Cf.Competence of the General Assembly, note 37 above, at 25 (dissenting opinion, Judge Azevedo).

128 Certain Expenses, note 10 above. See especially the separate opinion of Judge Fitzmauriee, at 206-207.

129 ibid.

130 See also South-West Africa Cases, note 18 above (separate opinion, Judge Jessup). The phrase “domestic jurisdiction” used in Art. 2(7) referring to the jurisdictional competence of the U.N. has not yet been the subject of a direct Court inquiry, but the heated debate over its meaning and the propriety of a Court determination of that meaning indicates that if it does come before the Court, the Court will be forced to reassess its rôle in rendering binding one of several equally logical meanings. See Rajan, The U.N. and Domestic Jurisdiction (2d ed., 1961); Pincham, Domestic Jurisdiction (1948); Cornell Conference, passim;and Higgins, note 48 above, at 61-65.

131 But-see Competence of ILO, P.C.I.J., Ser. B, No. 2, at 27 and 35-39; Mavrommatis (Preliminary Objections), P.C.I.J., Ser. A, No. 2, at 19; and IMCO, note 36 above, at 174 (dissenting opinion, Judge Klaestad). The most comprehensive recent study of this problem is Hardy, “Interpretation of Plurilingual Treaties by International Courts and Tribunals,” 37 Brit. Tr. Bk. Int. Law 72 (1961).

132 See Exchange of Greek and Turkish Populations, P.C.I.J., Ser. B, No. 10, at 18; and Pollux, note 10 above, at 79.

133 See Mavrommatis (Preliminary Objections), P.C.I.J., Ser. A, No. 2 at 19. Cf. V.S. v.Percheman, 7 Pet. 51, 8 L. ed. 604, 618 (1833); and In re Zalewski's Estate, 292 N.T. 2d 332, 55 N.E. 2d 184, 186 (1944).

134 See Certain Expenses, note 10 above, at 186 (separate opinion, Judge Spender). See also Conditions of Admission, note 37 above, at 62 (majority opinion); Corfu Channel, note 13 above, at 24 and 26 (majority opinion); Status of South-West Africa, note 66 above, at 187 (dissenting opinion, Judge DeYisscher) and 191 (dissenting opinion, Judge Krylov); IMCO, note 36 above, at 175 (dissenting opinion, Judge Klaestad); and Certain Expenses, note 10 above, at 272 (dissenting opinion, Judge Koretsky).

135 In one case in which the Court specifically refused to apply the rule, it was because the interpretation involved a unilaterally drafted declaration of acceptance of the jurisdiction of the Court. See Anglo-Iranian Oil Company, note 25 above, at 105 (majority opinion).

136 Certain Expenses, note 10 above, at 272 (dissenting opinion). See also Status of South-West Africa, note 66 above, at 188 (dissenting opinion, Judge DeVisscher); and Anglo-Iranian Oil Company, note 25 above, at 105 (majority opinion).

137 Certain Expenses, note 10 above, at 186 (separate opinion).

138 Competence of the General Assembly, note 37 above, at 27 (dissenting opinion). See also Chakste, “Justice and Law in the Charter of the United Nations,” 42 A.J.I.L. 590 et seq.(1948); and Competence of the General Assembly, note 37 above, at 17 (dissenting opinion, Judge Alvarez).

139 Note 10 above.

140 See McDougal and Gardner, note 17 above, at 266.

141 P.C.I.J., Ser. A/B, No.

142 Ibid.at 18.

143 P.C.I.J., Ser. B, No. 17.

144 Ibid.at 21. See also Turkey and Iraq Frontier, P.C.I.J., Ser. B, No. 12, at 27; Minority Schools, P.C.I.J., Ser. A, No. 15, at 32-33; The Wimbledon, Ibid.,No. 1, at 23; Exchange of Greek and Turkish Populations, P.C.I.J., Ser. B, No. 10, at 17; Competence of the ILO to Regulate Incidentally the Personal Work of Employers, ibid.,No. 13, at 18; European Commission of the Danube, ibid.,No. 14, at 52; Interpretation of Greco-Turkish Agreement, ibid.,No. 16 at 18; Memel Territory, P.C.I.J., Ser. A/B, No. 49, at 317; Employment of Women, ibid.,No. 50, at 374, and dissenting opinion of Judge Anzilotti; Minority Schools in Albania, ibid.,No. 64, at 17.

145 See note 10 above.

146 Note 61 above.

147 Ibid,at 45 (separate opinion). See also Competence of ILO, P.C.I.J., Ser. B, No. 2, at 23.

148 Note 66 above.

149 Admission of Hearings, note 61 above, at 56.

150 Certain Expenses, note 10 above, at 185 (separate opinion).

151 Ibid. at 187 (separate opinion).

152 Ibid,at 186 (separate opinion).

153 Competence of the ILO, P.C.I.J., Ser. B, Nos. 2 and 3.

154 Competence of the ILO to Regulate Incidentally the Personal Work of Employers, P.C.I.J., Ser. B, No. 13.

155 Competence of the ILO, ibid.,No. 2.

156 Ibid. at 25.

157 Ibid,at 35.

158 Competence of the ILO, ibid.,No. 3.

159 Ibid,at 57.

160 Ibid,at 55.

161 See also Turkey and Iraq Frontier, P.C.I.J., Ser. B, No. 12, at 20-21.

162 Ibid.,No. 13.

163 Note 13 above.

164 lbid.at 182 (majority opinion), cited with approval in the Awards of the Administrative Tribunal case, note 66 above, at 56 (majority opinion).

165 see Certain Expenses, note 10 above, at 245 (dissenting opinion, Judge Moreno- Quintana); and Awards of the Administrative Tribunal, note 66 above, at 80 (dissenting opinion, Judge Hackworth).

166 See Awards of the Administrative Tribunal, note 66 above, at 58-60 (majority opinion); and Certain Expenses, note 10 above, at 245 (dissenting opinion, Judge Moreno-Quintana). See Seyersted “Objective International Personality of Intergovernmental Organizations,” 34 Nordisk Tidsskrift for International Bet 1, 80 (1964).

167 T P.C.I.J., Ser. B, No. 10.

168 Ibid,at 24.

169 Note 13 above.

170 Ibid,at 179-180 (majority opinion). Accord, Certain Expenses, note 10 above, at 159 (majority opinion).

171 Note 66 above.

172 Admission of Hearings, note 61 above, at 56 (separate opinion).

173 Ibid.

174 Note 25 above.

175 Ibid. at 143-144 (dissenting opinion). See also the dissenting opinion of Judge Carneiro, at 153.

176 Note 66 above.

177 Ibid,at 57 (majority opinion).

178 Note 18 above.

179 lbid.at 113-114 (separate opinion).

180 Ibid.

181 Note 10 above.

182 Ibid.at 167 (majority opinion).

183 Ibid,at 230 (dissenting opinion). See also the dissenting opinion of Judge Koretsky.

184 Ibid.at 168 (majority opinion).

185 Note 18 above.

186 Ibid.at 336 (majority opinion).

187 Ibid. at 329 (majority opinion).

188 Ibid.at 336 (majority opinion).

189 Status of South-West Africa, note 66 above.

190 P.C.I.J., Ser. B, No. 3.

191 Competence of the ILO, P.C.I.J., Ser. B, No. 2.

192 Ibid

193 See Fitzmaurice, note 14 above, at 207; Lauterpacht, note 10 above, at 51; and Certain Expenses, note 10 above, at 185 (separate opinion, Judge Spender) (“Despite current tendencies to the contrary, the first task of the Court is to look, not at the travaux préparatoiresor the practice which hitherto has been followed … but at the terms of the Charter itself. What does it provide to carry out its purposes?“). But see Frank, note 64 above, at 27 (“Someone has observed that whenever a lawyer says that something is the manifest intention of a man, the word ‘manifest’ means that the man never really had such an intention.“).

194 Vattel, note 5 above, Vol. I, Ch. XVII, par 263. But see his somewhat contradictory rules, cited by Lauterpacht, note 10 above, at 48; and see also Polish Postal Service in Danzig, P.C.I.J., Ser. B, No. 11, at 37; European Commission of the Danube, ibid.,No. 14, at 28 and 31; and Ambatielos (Preliminary Objections), [1952] I.C.J. Rep. at 28.

195 Note 10 above.

196 Ibid,at 184 (separate opinion).

197 See Prank, note 64 above, written in 1930.

198 gee Lauterpacht, note 10 above, at 50-51.

199 Pollux, note 10 above, at 71.

200 E.g.,in the Conditions of Admission case, note 37 above, the majority's view wasdirectly contradicted by the ambiguities encountered by Judges McNair, Basdevant, Winiarski, Read, Azevedo and Zoricid. Compare also the dissenting opinion of Judge Moreno-Quintana in the Certain Expenses case, note 10 above, at 247, with the majority view.

201 See Certain Expenses, note 10 above, at 191 (separate opinion, Judge Spender).

202 See, for example, Polish Postal Service in Danzig, P.C.I.J., Ser. B, No. 11; and Turkey and Iraq Frontier, ibid.,No. 12.

203 Lauterpacht, note 10 above, at 50-51. See, for example, the IMCO case, note 36 above (majority opinion). Compare the majority's citation of the rule (pp. 159-160) with its actual practice (at pp. 165, 168 and 170).

204 See, for example, the Competence of the ILO cases, P.C.I.J., Ser. B, Nos. 2 and 3; and Schechter, note 3 above, at 113.

205 Compare the Competence of the General Assembly case, note 37 above, at 8 (majority opinion), with the South-West Africa Cases, note 18 above, at 338-341 (majority opinion), in the former denying itself the right to examine preparatory works, while in the latter affirming such right.

206 Compare Pollux, note 10 above, at 72-74. Cf.Certain Expenses, note 10 above, at 230 (dissenting opinion, Judge Winiarski); and Voting Procedure, note 18 above, at 108 (separate opinion, Judge Lauterpacht).

207 P.C.I.J., Ser. B, No. 10. This involved the powers of a mixed commission set up to facilitate the exchange of Greek and Turkish populations.

208 Ibid. at 9 (majority opinion).

209 Ibid. at 16 (majority opinion).

210 P.C.I.J., Ser. B, No. 12

211 lbid.at 22 (majority opinion).

212 P.C.I.J., Ser. B, No. 14.

213 Ibid at 28 (majority opinion).

214 Ibid,at 31. As is often pointed out, an obvious but not crucial discrepancy exists when the Court finds a “plain” or “natural” or “ordinary” meaning, but then has to exclude preparatory works which render that meaning suspect.

215 Certain Expenses, note 10 above, at 168 (majority opinion). Cf.opinions of Judges Morelli and Winiarski.

216 Note 10 above. See p. 168 (majority opinion).

217 Note 18 above. See pp. 338-341 (majority opinion).

218 Note 37 above.

219 Note 37 above.

220 Note 66 above.

221 See, for example, the dissenting opinion of Judge Azevedo in the Competence case, note 37 above, at 27; the separate opinion of Judge Lauterpacht in the Voting Procedure case, note 18 above, at 108; and the joint dissenting opinion of Judges McNair, Basdevant, Winiarski and Bead, in the Conditions of Admission case, note 37 above, at 90-91.

222 P.C.I.J., Ser. B, No. 2.

223 Ibid. at 41 (majority opinion).

224 P.C.I.J., Ser. A, No. 23.

225 Ibid. at 42 (majority opinion). Accord, Competence of the General Assembly, note 37 above, at 18 (dissenting opinion, Judge Alvarez).

226 Note 66 above.

227 Ibid.at 165 (separate opinion). Accord, Certain Expenses, at 184-185 and 191 (separate opinion, Judge Spender).

228 Competence of the General Assembly, note 37 above, at 18 (dissenting opinion).

229 Conditions of Admission, note 37 above, at 67 (separate opinion).

230 Ibid.

231 Turkey and Iraq Frontier, P.C.I.J., Ser. B, No. 12, at 23.

232 Exchange of Greek and Turkish Populations, Hid,,No. 10, at 16.

233 European Commission of the Danube, ibid.,No. 14, at 32.

234 Note 36 above.

235 Note 66 above.

236 Ibid.at 78.

237 See Pollux, note 10 above, at 73.

238 Ibid.See also Hambro and Goodrich, Charter of the United Nations, Commentary and Documents 124 (1946).

239 See, for example, Competence of the ILO to Regulate Incidentally the Personal Work of Employers, P.C.I.J., Ser. B, No. 13, at 19; Competence of ILO, ibid.,No. 2, at 38-40; and Certain Expenses, note 10 above, at 189-190 (separate opinion, Judge Spender), and 230 et seq.(dissenting opinion, Judge Winiarski).

240 See Cornell Conference 34 (remarks of Professor Sohn); Fitzmaurice, note 14 above, at 203-204.

241 P.C.I.J., Ser. B, No. 12.

242 Ibid,at 24.

243 Conditions of Admission, note 37 above, at 87. See also European Commission of the Danube, P.C.I.J., Ser. B, No. 14, at 17; and Status of South-West Africa, note 66 above, at 147 (separate opinion, Judge McNair). But see European Commission of the Danube, P.C.I.J., Ser. B, No. 14, at 34.

244 See Certain Expenses, note 10 above, at 187 et seq.(separate opinion).

245 Ibid.at 189 (separate opinion).

246 Separations, note 13 above, at 179 (majority opinion).

247 Voting Procedure, note 18 above, at 106 (separate opinion).

248 Hudson, note 43 above, at 16.

249 Ibid.See also McMahon, “The Court of the European Communities: Judicial Interpretation and International Organization,” 37 Brit. Yr. Bk. Int. Law 320 (1961) (“The hollow fiction of the intentions of the parties is all the more difficult to sustain in regard to the constitutive instrument of international organizations. Such a treaty, if it is to prove effective, must inevitably develop a life of its own, often totally different from the concept of its founders.“).

250 Note 37 above, at 68 (separate opinion).

251 See Reservations, note 66 above, at 53 (dissenting opinion). See also Competence of the General Assembly, note 37 above, at 17 (dissenting opinion); and Anglo-Iranian Oil Co., note 25 above, at 126 (dissenting opinion). Cf. The Wimbledon,P.C.I.J., Ser. A, No. 1, at 22; and Status of South-West Africa, note 66 above, at 153 (separate opinion, Judge McNair). Thus, Finn Seyersted has recently written of intergovernmental organizations that: “Practice demonstrates that, contrary to what is usually assumed in legal theory [these] organizations have an inherent capacity to perform any sovereign and international act which they are in a practical position to perform, even if their constitution contains no relevant intention of their drafters or any previous practice by or in respect of the Organization.” Note 166 above, at 99.

252 See Reparations, note 13 above, at 180 (majority opinion); Competence, note 37 above, at 8-9 (majority opinion); IMCO, note 36 above, at 168 (majority opinion); and Certain Expenses, note 10 above, at 172-179 (majority opinion). Also, Voting Procedure, note 18, above, at 106 et seq.(separate opinion, Judge Lauterpacht); Admission of Hearings, note 61 above, at 58-59 (separate opinion, Judge Lauterpacht); and Certain Expenses, note 10 above, at 182-187 (separate opinion, Judge Spender). Also, Status of South-West Africa, note 66 above, at 189 (dissenting opinion, Judge DeVisscher); and Certain Expenses, note 10 above, at 304 (dissenting opinion, Judge Bustamante).

253 See Reservations, note 66 above, at 21 and 24 (majority opinion); and Separations, note 13 above, at 180 (majority opinion). Also, Status of South-West Africa, note 66 above, at 153-154 (separate opinion, Judge McNair); Voting Procedure, note 18 above, at 112 (separate opinion, Judge Lauterpacht); and Certain Expenses, note 10 above, at 186 (separate opinion, Judge Spender). Also, Conditions of Admission, note 37 above, at 84 (joint dissenting opinion, Judges McNair, Basdevant, Winiarski and Bead) and 68-71 (concurring opinion, Judge Alvarez); Reservations, note 66 above, at 51-52 (dissenting opinion, Judge Alvarez); South-West Africa Cases, note 18 above, at 355-356 and 361 (dissenting opinion, Judge Bustamante); and Certain Expenses, note 10 above, at 304 (dissenting opinion, Judge Bustamante). See also Hudson, note 43 above, at 16; and Brierly, “Covenant and Charter,” 23 Brit. Tr. Bk. Int. Law 83, 84-86 (1946).

254 See Certain Expenses, note 10 above (majority opinion). See also ibid,at 304 (dissenting opinion, Judge Bustamante); Awards of Administrative Tribunal, note 66 above (majority opinion), and 72 (dissenting opinion, Judge Alvarez) and 92 (dissenting opinion, Judge Carneiro); Reservations, note 66 above, at 52 (dissenting opinion, Judge Alvarez); and Separations (majority opinion). But see Certain Expenses, note 10 above, at 232 (dissenting opinion, Judge Winiarski), 248 (dissenting opinion, Judge Moreno-Quintana), and 302 (dissenting opinion, Judge Bustamante).

255 Certain Expenses, note 10 above, at 168 (majority opinion).

256 Ibid. Cf.p. 229 (dissenting opinion, Judge Winiarski).

257 Ibid,at 224 (separate opinion, Judge Morelli).

258 Ibid,at 804 (dissenting opinion). See also p. 232 (dissenting opinion, Judge Winiarski), Cf.pp. 221-224 (separate opinion, Judge Morelli).

259 See Status of South-West Africa, note 66 above, at 165 (separate opinion, Judge Bead), and Certain Expenses, note 10 above, at 196 (separate opinion, Judge Spender), 248 (dissenting opinion, Judge Moreno-Quintana) and 298 (dissenting opinion, Judge Bustamante).

260 Certain Expenses, note 10 above, at 196 (separate opinion, Judge Spender). See also Status of South-West Africa, note 66 above, at 165 (separate opinion, Judge Bead); Certain Expenses, note 10 above, at 230 (dissenting opinion, Judge Winiarski). But see Certain Expenses, note 10 above, pp. 201-202 (separate opinion, Judge Fitzmaurice).

261 Certain Expenses, note 10 above, at 248 (dissenting opinion, Judge Moreno- Quintana). See also pp. 298 and 302 (dissenting opinion, Judge Bustamante). Cf.p. 192 (separate opinion, Judge Spender) and p. 202 (separate opinion, Judge Fitzmaurice).

262 See Certain Expenses, note 10 above, at 232 (dissenting opinion, Judge Winiarski), 248 (dissenting opinion, Judge Moreno-Quintana) and 302 (dissenting opinion, Judge Bustamante).

263 Ibid,at 232 (dissenting opinion, Judge Winiarski).

264 See, for example, Certain Expenses, note 10 above, at 229-232 (dissenting opinion, Judge Winiarski), and 256 (dissenting opinion, Judge Koretsky).

265 Ibid.at 183 (separate opinion, Judge Spender). See Judge Morelli's discussion on law and certainty (separate opinion).

266 See Certain Expenses, note 10 above, at 168 (majority opinion), 201 (separate opinion, Judge Fitzmaurice) (with citations), and 304 (dissenting opinion, Judge Bustamante). But see p. 224 (separate opinion, Judge Morelli) and p. 229 (dissenting opinion, Judge Winiarski).

267 See Certain Expenses, note 10 above, at 187 et seq.(separate opinion, Judge Spender), 204 (separate opinion, Judge Fitzmaurice), 224 (separate opinion, Judge Morelli), and 229 (dissenting opinion, Judge Winiarski). But see Competence of the General Assembly, note 37 above, at 24 (dissenting opinion, Judge Azevedo).

268 Certain Expenses, note 10 above, at 291 (dissenting opinion). See also McMahon, note 249 above, at 321 and citations therein.

269 Certain Expenses, note 10 above, at 191 (separate opinion, Judge Spender) and 291 (dissenting opinion, Judge Bustamante).

270 But see Voting Procedure, note 18 above,at 104-105 (separate opinion, Judge Lnuterpacht).

271 See Dicey, Law of the Constitution 23, 49 (10th ed.); and Anson, 2 Law and Custom of the Constitution 15 (4th ed., Pt. 1). See also Adegbenro v.Akintola, [1963] A.C. 614 (Privy Council, on appeal from Nigerian Supreme Court).

272 Certain Expenses, note 10 above, at 201 (separate opinion, Judge Fitzmaurice) ; also 232 (dissenting opinion, Judge Winiarski), and 247 (dissenting opinion, Judge Moreno-Quintana); and Status of South-West Africa, note 66 above, at 135-136 (majority opinion) (“Interpretations placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its obligations under an instrument.“).

273 Certain Expenses, note 10 above, at 189 (separate opinion, Judge Spender).

274 See Competence of the ILO, P.C.I.J., Ser. B, No. 2, at 39, 40-41 (majority opinion) ; Minority Schools, Ser. A, No. 15, at 40 (majority opinion) and 64-65 (dissenting opinion, Judge Nyholm); Status of South-West Africa, note 66 above, at 135 (majority opinion) and 147-151 (separate opinion, Judge McNair); Voting Procedure, note 18 above, at 103 (separate opinion, Judge Lauterpacht); Certain Expenses, note 10 above, at 189 and 192 (separate opinion, Judge Spender), and 201 (separate opinion, Judge Fitzmaurice); and South-West Africa Cases, note 18 above, at 341 (majority opinion) and 372 (separate opinion, Judge Bustamante).

275 275 Cf .Pound, “Mechanical Jurisprudence,” 8 Columbia Law Rev. 605 (1908).

276 See Opsahl, note 15 above, at 770-771 and 773.