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Judge John E. Read and the International Court of Justice

Published online by Cambridge University Press:  09 March 2016

Shabtai Rosenne
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John Erskine Read, Q.C., D.C.L., LL.D., was born in Halifax, Nova Scotia, on July 5, 1888, and died on December 3, 1973, in the words of his friend Max Wershof “full of mental vigour to the last.” After graduating in Dalhousie Law School in 1909, he completed a year’s post-graduate study in Columbia University, New York. As a Rhodes scholar he then went to University College, Oxford, where he took a “double first” in winning his B.A. and B.C.L. In 1913 he was called to the Nova Scotia bar, joining the firm of Harris, Henry, Rogers and Harris. After distinguished service with the Canadian Field Artillery in World War I, in which he was wounded and invalided out with the acting rank of Major, he returned to that firm as a partner in 1918. In 1920 he joined the Faculty of Law of Dalhousie University, and was Dean between 1924 and 1929. In 1929 he was appointed Legal Adviser of the Department of External Affairs and held that position until he was elected a member of the International Court of Justice on February 6, 1946.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 17 , 1980 , pp. 3 - 29
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1980

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References

1 See his “Salute to John Erskine Read” in International Perspectives: A Journal of the Department of External Affairs, May/June 1974, at 47. For other tributes, see R. St. J. Macdonald on the occasion of the presentation of the first John E. Read Medal of the Canadian Council of International Law on October 13, 1972, in Proceedings of the First Annual Conference, Ottawa, October 13-14, 1972, at 194; and, on behalf of the International Court, President Manfred Lachs in Fisheries Jurisdiction cases, I.C.J. Pleadings, vol. I, at 436. Infra, text to note 53. It might be mentioned that Read was descended from an old Canadian family, members of which had seen service with Wolfe (according to information received from the Department of External Affairs).

2 Read’s contribution to the development of Dalhousie Law School was very great: see Willis, John, A History of Dalhousie Law School (Toronto, Buffalo, London, 1980)Google Scholar, passim. Curiously, Read never taught international law, neither at Dalhousie nor, after 1958, at the University of Ottawa.

3 On this phase, see Read’s instructive article “Problems of an External Affairs Legal Adviser, 1928-1946,” 22 International Journal 376 (1967).

4 Convention concerning the Boundary Waters between the United States and Canada, United Kingdom Treaty Series, No. 23 (1910); 102 British and Foreign State Papers 37; 3 Treaties etc., between the United States of America and Other Powers, 1776–1937 (Redmond) 2607.

5 3 Reports of International Arbitral Awards 1616; 29 Am. J. Int’l L. 326, 329 (1935). Two awards were rendered in this case, decided by a Joint Commission composed of L. P. Duff of the Supreme Court of Canada and W. Vandenventer of the Supreme Court of the United States, on June 30, 1933 and January 5, 1935. See Claim of British [Sic] Ship “I’m Alone” (Ottawa, 1933-35) ; I’m Alone case, State Department Arbitration Series No. 2, seven vols., (Washington, D.C., 1931-35). And see C. C. Hyde, note in 29 Am. J. Int’l L. 296 (1935) ; G. G. Fitzmaurice (as he then was), “The Case of the I’m Alone,” 17 Brit. У.В. Int’l L. 82 (1936). I have often wondered whether Read’s several references to the behaviour of smugglers in his dissenting opinion in the Anglo-Norwegian Fisheries case reflected experiences and knowledge gained as agent in the I’m Alone case.

6 3 Reports of International Arbitral Awards 1911, 1938; 33 Am. J. Int’l L. 182 (1939), 35 ibid., 684 (1941). Two awards were rendered in this case, decided by an Arbitral Tribunal composed of J. F. Hostie (Belgium), R. A. E. Greenshields (Canada), and C. Warren (United States), on April 16, 1938 and March n, 1941. See Trail Smelter Question, 15 vols., (Ottawa, 1936–41); Trail Smelter Arbitration, State Department Arbitration Series No. 8 (Washington, D.C., 1941). And see notes by A. J. Kuhn in 32 Am. J. Int’l L. 785 (1938) and 35 ibid., 665 (1941). Read’s own account appears in “The Trail Smelter Dispute,” 1 Canadian Yearbook of International Law 213 (1963). This is one of the earliest international cases dealing with what is now commonly known as environmental law.

7 Read, The Rule of Law on the International Plane, the W. M. Martin lectures, i960, at 20 (Toronto and Vancouver, 1961 ). He was to return to this theme in later pronouncements, in justification of his consistently held view that the International Court of Justice could not have any monopoly of judicial settlement. In this connection, see also Article 95 of the United Nations Charter.

8 Ibid., 18.

9 Canada had been represented on the Informal Inter-Allied Committee of Experts on the Court. See its report in British Parliamentary Paper Cmd. 6531 (1944), reprinted in 39 Am. J. Int’l L., Supp., 1 (1945). The Canadian representative was Mr. D. M. Johnson, and it may be assumed that Read was kept informed of the progress of its work.

10 Confidential Memorandum entitled Meeting of Committee of Jurists, Washington, April 9-20, 1945, unnumbered and undated (Read probably completed it immediately after his return to Ottawa).

11 There were 76 candidates for the 15 vacancies in that election, but no doubt the allocation of seats to the principal legal systems of the world (Statute, Article 9) had been negotiated previously, and it is understood that the British Commonwealth as it then was would receive one seat. Judging from the records, Read’s principal rival in that election was Sir Kenneth Bailey of Australia, who received the required majority on the first ballot in the Security Council, but not in the General Assembly. The whole history of the Court would have been different had Bailey and not Read been elected in 1946, for then the South West Africa case would not have been decided in 1966 by the casting vote of another Australian, Sir Percy Spender. But who was to know?

12 U.N. Doc. A/3653/Add.2-S/3879/Add.2, in Official Records of the General Assembly, 12th Session, annexes, agenda item 16, at 2.

13 Letter from Thomas Read to the author, April 20, 1977.

14 Corfu Channel (preliminary objection) (1948); same (merits) (1949); Reparation (1949); Corfu Channel (compensation) (1949); Competence of Assembly (1950); Peace Treaties (first phase) (1950); South West Africa (status) ( 1950) ; Asylum (interpretation) ( 1950) ; Haya de la Torre ( 1951 ) ; Anglo-Iranian Oil Co. (interim measures) (1951); Ambatielos (preliminary objection) (1952) ; U.S. Nationals in Morocco (1952) ; Minquiers and Ecre-hos (1953); Nottebohm (preliminary objection) (1953); Monetary Cold in Rome (1954); U.N. Administrative Tribunal (1954); 3South West Africa (voting procedure) (1955); South West Africa (petitioners) (1956); Interhandel (interim measures) (1957) ; Right of Passage (preliminary objections) (1957).

15 Admission (1948); Peace Treaties (second phase) (1950); Asylum (1950); Reservations (1951); Anglo-Norwegian Fisheries (1951); Anglo-Iranian Oil Co. (1952) ; Ambatielos (obligation to arbitrate) ( 1953) ; Nottebohm (second phase) (1955); I.L.O. Administrative Tribunal (1956); Norwegian Loans (1957).

16 South West Africa (status), Monetary Gold from Rome. These separate opinions occupy a total of 12 pages in the Court’s Reports.

17 Interhandel (interim measures). Read and Hackworth expressed their concurrence with a separate opinion written by Klaestad.

18 Peace Treaties (second phase), Asylum, Anglo-Norwegian Fisheries, Anglo-Iranian Oil Co., Nottebohm (second phase), I.L.O. Administrative Tribunal, Norwegian Loans. These dissenting opinions occupy a total of 131 pages in the Court’s Reports.

19 Admission, Reservations, Ambatielos (obligation to arbitrate). These joint dissenting opinions occupy a total of 41 pages in the Court’s Reports.

20 He was proud of this: op. cit. supra note 7, at 26. In two other cases at least, arising out of World War II, Read might have been expected to have voted with the majority — Peace Treaties (second phase) and Nottebohm (second phase). The fact that he did not illustrates his independent temperament.

21 [1951] I-C.J. Rep. 231, 233.

22 [1952] I C.J. Rep. 142, 143. Parenthetically, I would observe that I am unable to recognize the application to international judgments of the common-law distinction between the ratio decidendi and obiter dicta — partly because such a distinction is not recognized, for example, by Article 60 of the Statute of the International Court of Justice or by the Rules of Court to give effect to it and relevant international jurisprudence. See my remarks in 56 Annuaire de l’Institut de Droit international, Session de Wiesbaden (1975), at 368-69 and my “Some Procedural Aspects of the English Channel Continental Shelf Arbitration” in Essays in Honour of Erik Castrén, Publications of the Finnish Branch of the International Law Association No. 2, ed. E. J. Manner et al. (Helsinki, 1979), 96 at 108.

23 [1953] I.C.J. Rep. 142, 144.

24 [1950] I.C.J. Rep. 164, 169.

25 14 U.N.C.I.O., Doc. 255-79. For Read’s principal speeches, see pp. 258, 262, 266.

26 For the United Kingdom proposals, see ibid., 314.

27 See 34 Proc. Am. Soc. Int’l L. 10 (1945). The address was given on April 13, and not as stated in Read’s report.

28 It is recalled that Canada had first accepted the so-called compulsory jurisdiction by its declaration dated September 29, 1929, ratification deposited on July 28, 1930: Canada Treaty Series, 1930, No. 9. In that edition the text appears in English and French, with no indication of which was the “original.” In the version published in 88 L.N.T.S. 282, it is stated that the French version was prepared by the League Secretariat. On December 8, 1939 the Canadian government modified its acceptance to exclude disputes arising out of events occurring during the war: 197 L.N.T.S. 288. That declaration, as thus amended, remained in force until replaced by the declaration of April 7, 1970: Canada Treaty Series, 1970, No. 10.

29 On Chaput, see Macdonald, , “An Historical Introduction to the Teaching ol International Law in Canada, Part II,” 13 Canadian Yearbook of International Law 255 at 270, n. 126 (1975).Google Scholar

30 204 L.N.T.S. 381.

31 Acts and Documents Concerning the Organization of the Court, No. 4, Charter of the United Nations, Statute and Rules of Court and Other Documents 92 (1978).

32 [1971] I.C.J. Rep. 12. Corroboration for Read’s impressions of what occurred at Washington is seen in 14 U.N.C.I.O. 294. At all events, no mention of any discussion of what occurred at the Washington Committee of Jurists appears in the otherwise very full account by Judge Sir Gerald Fitzmaurice on the question of the appointment of a judge ad hoc by South Africa in that case, [1971] I.C.J. Rep. 308. The same is true for the contrary position advocated by Judge Eduardo Jiménez de Aréchaga in his equally important article “Judges ad hoc in Advisory Proceedings” in 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 697 (1971). As Read anticipated, the matter was dealt with in Article 83 of the Rules of Court of 1946, now Article 102, paragraph 3, of the Rules of 1978.

33 On the International Labour Organization, see its proposal to permit international organizations to appear as parties before the Court as well as to have direct access to the advisory procedure: League of Nations Document C.20.M.20.1944.V., August 2, 1944, reprinted in 26 International Labour Office Official Bulletin 194 (December 1944). The memorandum also raised the question of revising Articles 34 and 62 of the Statute. These demands were partially met through the addition of paragraphs 2 and 3 to Article 34 of the Statute, as completed by Article 57, paragraphs 3, 4, and 5, of the Rules of 1946, now Article 69 of the Rules of 1978.

34 Cable D.267, May 30, 1945, from Read to Chipman.

35 Cable H-258, May 31, 1945, from Chipman to Read. In cable H-272, June 4, 1945, Chipman, after certain telephone conversations with Read, added the well-known passage in the report of Subcommittee IV/I/D regarding reservations, omitted from his previous cable: 13 U.N.C.I.O. Doc. 559 and 391 (as part of the report of Committee IV).

36 Cable D-282 from Read to Chipman, June 1, 1945.

37 Cable D-295 from Read to Chipman, June 5, 1945.

38 These reflections are based primarily on information received from his son Thomas.

39 However, it appears that the three joint dissenting opinions (supra note 19) were themselves bilingual, there being no indication in the Court’s Reports that any version is a translation.

40 Note his keen observation on the lack of concordance between the English and French versions of Article 48 of the Statute, and its consequences, in his dissenting opinion in Norwegian Loans, [1957] I.C.J. Rep. 79, 81.

41 [1950] I.C.J. Rep. 231, 238.

42 [1956] I.C.J. Rep. 143, 45.

43 That was one of the provisions of the Statute which was amended by the Washington Committee of Jurists when Read, as Chairman of the Drafting Committee, commented that this amendment conformed to the practice of the Permanent Court of allowing concurring as well as dissenting opinions: see 14 U.N.C.I.O. Doc. 211.

44 [1957] I.C.J. Rep. 79, 91. He would have interpreted the reservation in such a way that the ultimate decision would rest with the Court — an ingenious theory, but unfortunately it has not gained wide currency.

45 Ibid., 9, 25. Recently followed in the Aegean Sea Continental Shelf case, though in quite different circumstances: [1978] I.C.J. Rep. 3, 17.

46 [1957] I.C.J. Rep. 79. Another important instance of fundamental difference in the nature of the decision required of the Court is seen in Read’s dissenting opinion in the Anglo-Norwegian Fisheries case — an opinion which, incidentally, displays great knowledge of the geographical factors relevant to Norway, and to Canada: [1951] I.C.J. Rep. 189.

47 [1957] I-C.J. Rep. 105, 113, 115. The burden of that provisional opinion was that effect should be given to the reservation as invoked without entering into a discussion of its validity.

48 Op. cit. supra note 7, at 45.

49 [1950] I.C.J. Rep. 316.

50 [1951] I.C.J. Rep. 193. The reference to Moore’s Digest is to vol. 1, at 785-88.

51 [1952] I.C.J. Rep. 142, 166.

52 Read, “The World Court and the Years to Come,” 2 Canadian Yearbook of International Law 164 (1964)Google Scholar. For the agreements of March 29, 1979, see Department of External Affairs, Press Release No. 29, March 29, 1979; 96th Congress, ist Session, Senate, Executive U and V (Washington, D.C., 1979).

53 Op. cit. supra note 1.

54 Read, “The Place for International Law and Justice in the Years to Come,” International Law Association, Report of the Forty-Eighth Conference 666 (New York, 1958).Google Scholar