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The International Court of Justice in 1959. Part II
Published online by Cambridge University Press: 21 May 2009
Extract
As compared with the Interhandel Case, discussed under A, the Israeli-Bulgarian Case, dismissed in its preliminary phase on May 26th, 1959, was from the factual angle very simple. On July 27th, 1955, an aircraft of El-Al, the Israel air navigation company, was shot down over Bulgarian territory, an incident resulting in the death of all the crew, consisting of seven members, and also of the fifty-one passengers of various nationalities. As usual, the first aim of the respondent party was to evade examination of the case on its merits, by submitting preliminary objections to the application. They were again five in number, namely:
1. Bulgaria is no longer bound by her declaration of acceptance of 29 July/12 August 1921, because the Permanent Court of International Justice ceased to exist in 1946 and the provision of Article 36 (5) of the Statute of the International Court of Justice, running as follows:
“Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptance 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”
does not apply to States, like Bulgaria, which did not become a Member of the United Nations from the beginning.
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References
37. I.C.F. Reports, 1959, p. 127.Google Scholar
38. The loss of American and British lives in the incident induced the United States and United Kingdom Governments to institute parallel proceedings before the Court. The British Government has already withdrawn its application.
39. The former expression is less explicit in the British, Spanish and Russian texts (“which are still in force”, “que estén aún vigentes”, “продолжающие оставаться в силе”), but the latter is identical in all the texts (“for the period which they still have to run”, “por el período que aún les quede de vigencia”, “на неистекший срок действия зтиχ заявлений”). The minority deals at some length with the differences in the texts.
40. Apart from quotations of the opinion of the former Judge in the Permanent Court Hudson, Manley O. in American Journal of International Law vol. 40 (1946), p. 34 and vol. 41 (1947), p. 10CrossRefGoogle Scholar, the minority laid much stress upon the attitude of Thailand, which was indeed favourable to their point of view. Thailand renewed her initial acceptance (1929/1930) of the compulsory jurisdiction of the Permanent Court by a declaration of May 3, 1940, made for a period of ten years as from May 7, 1940, and consequently due to expire on May 6, 1950. Thailand was not represented at the San Francisco Conference and only admitted to the United Nations on December 16, 1946, after the dissolution of the Permanent Court, that is, on April 18, 1946. The Government of Thailand evidently considered their country to have nevertheless remained bound by their declaration of 1940, since they proceeded to make a new declaration only in 1950. —In his lectures of 1958 at the Hague Academy of International Law on Reservations to the acceptance of compulsory jurisdiction of the International Court of Justice (Recueil des Cours 1958 (I), Vol. 93, p. 320Google Scholar, note 2, Herbert W. Briggs also considered the Bulgarian declaration of 1921 as being still in force.
41. It is difficult to control the correctness of these figures. A personal perusal of the available data led me to the following conclusions. Apart from Liechtenstein and Monaco, whose declarations, based on Article 35 (2) of the old Statute, were of a very special character, 54 States had made declarations under the optional clause. Among them were 6 enemy States—Bulgaria, Finland, Germany, Hungary, Italy and Rumania—and 11 more States which were not represented at the San Francisco Conference—Estonia, Latvia and Lithuania, that had ceased to be independent States, and furthermore Albania, Austria, Ireland, Portugal, Spain, Sweden, Switzerland and Thailand. Of all the 54 declarations, 19 had already expired when the Conference discussed the transitional provision. Amongst the remaining declarations made by participants in the Conference and which had not yet expired (26 in all), only 6—those of Argentina, Bolivia, Brazil, Denmark, The Netherlands and Norway—contained a fixed time limit, varying from December 28, 1945, to January 26, 1947, whereas 20 had accepted the jurisdiction of the Permanent Court for an indefinite time,—11 of them without any denunciation clause—Columbia, Costa Rica, Dominican Republic, Guatemala, Haiti, Liberia, Nicaragua, Panama, Paraguay, El Salvador and Uruguay—and 9 (either after the expiry of an initial fixed period of time, or from the beginning) until further notice—Australia, Canada, India, Iran, Iraq, Luxemburg, New-Zealand, Union of South Africa and United Kingdom.— Bulgaria's declaration of 1921 was made without any time limit and without a denunciation clause.
42. Judgment of 20 June 1959, I.C.J. Reports 1959, p. 209.Google Scholar
43. In common agreement, the parties to this case had not made use of their right under the Statute to appoint each a Judge ad hoc.