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The International Court of Justice, 1960
Published online by Cambridge University Press: 21 May 2009
Extract
As the present writer set out in his paper on The International Court of Justice in 1957 and 1958 under A, the Court, while by its Judgment of November 26, 1957 at once rejecting four of the six preliminary objections submitted by India in defence against the unilateral application of Portugal in the Case concerning Right of Passage over Indian Territory and directed against the jurisdiction of the Court, felt unable to decide upon the two remaining objections without entering into a more thorough examination of the contradictory arguments of the Parties on the subject-matter of the dispute and, for that purpose, joined these two objections to the merits. As is well-known those merits related, in general terms, to the question as to whether India acted correctly when hindering Portugal, Jin 1954, from reasserting her sovereignty over two enclaves from her coastal district of Damão across the intervening Indian territory and to India's general attitude towards the revolutionary activities in the enclaves. When the second phase of this case began, it was consequently still uncertain whether the Court would in the event sustain its jurisdiction and thus in fact be in a position to take cognizance of and decide upon the merits. This situation had also arisen occasionally in the days of the Permanent Court of International Justice.
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References
1. Judgment of 12 April 1960: I. C. J. Reports 1960, p. 6.Google Scholar
2. This Review, Special issue, July 1959 (Liber Amicorum Professor J. P. A. François), p. 366et seqq.Google Scholar
3. I.C. J. Reports 1957, p. 125.Google Scholar
4. Vide the cases concerning the Administration of the Prince of Pless (Publications P. C. I. J., series A/B, No. 52), the Panavezys-Saldutiskis Railway (l. c. A/B, No. 66) and Losinger and Comp. (l. c., A/B, No. 67). The situation would have been the same in the Borchgrave Case (l. c. A/B, No. 72) had the second preliminary objection not been withdrawn by Spain (l. c., p. 169).
5. This original Declaration was denounced by India “with immediate effect” on January 7, 1956, a few weeks only after the Portuguese Application, and replaced “instantaneously” by a fresh and different Declaration which however was, in its turn, terminated on February 8, 1957, again “with immediate effect”.
6. There were fifteen judges on the Bench, the Indian and Portuguese Judges ad hoc included, as the late Judge Lauterpacht was prevented from taking part in the hearing of the case and there was still one vacancy in the Court. A thirteenth (dissenting) opinion, of Judge Córdova, was only withdrawn at the very last moment, comp. note 15.
7. The two preceding paragraphs ran as follows:
“Whereas the attitude adopted by India is thus in two respects contrary to the duty imposed upon it by international law, since instead of protecting Portugal against the unlawful enterprise with which the latter was threatened it placed Portugal in a situation in which it was impossible for that State to defend itself against that enterprise; Whereas, since that date, the prohibitions imposed by India in respect of Portuguese transit have been maintained without exception, thus enabling those who profited by them to consolidate their position in the enclaves;”
8. During the hearings India had asserted: (i) that she had the right to adopt an attitude of neutrality in the conflict between the lawful Government in the enclaves and the insurgents; (ii) that she was obliged to “abstain from action which is diametrically opposed to the whole purpose and spirit of Articles 1, 55, 56 and 62 of the United Nations Charter” relating to human rights and to the right of self-determination of peoples; (iii) that, as there existed in the enclaves a provisional de facto local government which was not represented before the Court, the Court was debarred from adjudicating, in the present circumstances, on the Portuguese claim.—With regard to these assertions Portugal asked the Court under II, in fine, (a) “to hold that (they) are without foundation” (p. 15–19).
9. As the Court ended by finding that India had not acted contrary to its obligations resulting from Portugal's right of passage, this third claim was not even examined. As a consequence, the findings were limited to the first and the second Portuguese claims.
10. Publications P. C. I. J., series A, No. 2, at p. 14.Google Scholar
11. There would seem to be some justification in the criticism addressed to the Judgment in the joint dissenting opinion of Judges Winiarski and Badawi, that the distinction made in this passage between a “situation” and a “fact” arbitrarily ascribes to the notion of “situation” a purely geographical meaning (the enclave), whereas that is only one factor in the “situation”, and that the latter, a compound of relationships of fact and law, covers the problem of passage in all its aspects.—It is worth while remembering that it was just the conception of “situations or facts” as one single notion by the Permanent Court in the Phosphates in Morocco case that caused the dissenting Judge van Eysinga in 1938 to blame the Judgment for not making a difference between “situations” and “facts” (Publications, series A/B, No. 74, p. 34).Google Scholar
12. On this point the two Judges gave their personal views in the following propositions—problematic and higly controversial in the doctrine of public international law—: “A State does not commit an unlawful act, nor incur international responsibility, simply by enacting a law containing provisions that are incompatible with its international undertakings. If the application of that law leads to acts which conflict with the State's international undertakings, the judge will simply declare that that State cannot validly invoke its law in support of those acts”. There is much to be said both about and against these propositions which considerably reduce the extent of a State's responsibility for acts of its legislature.
13. These seven substantive issues discussed by the Court are not listed as such in the Judgment. The Court itself (on p. 36) announced that it would consider successively only three questions, viz. (1) the existence in 1954 of a right of passage in Portugal's favour to the extent necessary for the exercise of its sovereignty over the enclaves, exercise of that right being regulated and controlled by India: (2) failure by India in 1954 to fulfil her obligation in regard to that right of passage; (3) in the event of a finding of such failure, the remedy for the resulting unlawful situation. Official voting and formal adjudication, however, only took place on the questions under (1) and (2), but again in three separate findings, point (1) being split up into two, concerning respectively “civil” and “military” passage, and point (3) falling to the ground owing to the negative answer to question (2).
14. Nonsensical, because a “custom”—in this context necessarily equivalent with “customary law”, for the Court does not apply factual usages but rules of law—can never be said to be “evidence of a practice”.
15. An unusual incident occurred at the pronouncement of the Judgment. The copies destined for the press still mentioned in print, in the postscript to the Judgment and in Judge Spiropoulos's dissenting opinion, the name of Judge Cordova as dissenting, but his name was in both places struck out in blue pencil and the two pages which must have contained the reasons of his dissent were glued together (Nieuwe Rotterdamse Courant, 04 13, 1960Google Scholar). It is, consequently, not officially known whether, at the eleventh hour, the Mexican Judge completely withdrew his dissent, or whether he only preferred not to publish that he dissented, and on what point(s). The former supposition, however, would seem to be excluded owing to the fact that no blue pencil correction occurred in any of the numerical results of the voting on the five points adjudicated upon in the operative part of the Judgment. And of course, the final official Reports no longer show any trace of this incident.
16. This Treaty of 1878 terminated in 1892, but without any change taking place in the existing practice. The full text of paragraphs 3, 2 and 4 of Article XVIII is, strangely enough, not reproduced in the Judgement itself, but is printed inter alia in Judge Wellington Koo's individual opinion, on pages 55 (armed forces), 56 (armed police) and 60/61 (arms and ammunition) of the Report.
17. See for general customary law: the Lotus case of 1927 (Publications P.C.I.J., Series A, No. 10, p. 28Google Scholar) and for regional customary law: the Asylum case of 1950 (I.C.J.Reports 1950, p. 276Google Scholar).—This traditional requirement for the coming into existence of rules of customary law on the international plane is not universally accepted. In particular Professor Guggenheim has repeatedly argued why, in his view, this psychological element has no place in the formation of customary international law.
18. This is also the solution which appeared the just solution to Judge Basde-vant. He also felt that too strong an emphasis had been laid by both Parties on the necessity of safeguarding their own territorial sovereignty and that it was incumbent upon the Court to strike a just equilibrium between the two opposing views. In a case like the present, of two territorial sovereignties, mutually recognized, confronting each other, a duty of mutual respect is incumbent upon both. Neither the requirements of Portuguese sovereignty over the enclaves nor those of Indian sovereignty in the intervening territory should be exaggerated. In his view the reconciling of the requirements of these two sovereignties was achieved during a long period by the practice established between the Parties, and in that direction he felt the solutions should have been sought which were most in accordance with legal principle (p. 48–49).
18a. The latter eight words are a quotation from part II, § 6 of the award of the Arbitral Tribunal of 1912 in the Russian Indemnity case (Schücking, , Das Werk vom Haag, Zweite Serie, Erster Band, Dritter Teil, p. 249 ff., at p. 337Google Scholar) and related to the Ottoman objection of force majeure opposed to Russia's claim for moratory interest, an objection which in spite of the quoted passage was … rejected. This innocent passage, torn from its context, now serves as an argument to claim for the Court the right to sacrifice international law to politics.
19. I. J. J. Reports 1960, p. 150.Google Scholar
20. Pursuant to Article 60 “the present Convention shall enter into force on the date when 21 States of which 7 shall each have a total tonnage of not less than 1,000,000 gross tons of shipping, have become parties to the Convention in accordance with Article 57”.
21. A general opinion, shared by the Court, was that it is impossible to contend that this expression means that the ships have to be owned by the State itself.
22. This idea was concretely expressed by the Norwegian Government which suggested using the flag tonnage as a point of departure, reducing this amount by the amount of tonnage not owned by nationals of the flag State and adding the tonnage which does belong to such nationals but is registered under a different flag.
23. Compare note 20.
24. Article 17 under (c) lays down that of the sixteen Members of the Council of IMCO “two shall be elected by the Assembly from among the governments of nations having a substantial interest in providing international shipping services”, whereas Article 41 deals with the apportionment of the expenses of the Organization among the Members in accordance with a scale to be fixed by it after consideration of the proposals of the Council thereon. In both cases the final decision was based upon the ship tonnage.
25. Such as the Load Line Convention of 1930, the Convention for the Safety of Life at Sea of 1929 (“a ship is regarded as belonging to a country if it is registered by the Government ofthat Country”).