1 69 AJIL 852-54 (1975). This proposal represents the application to a particular domain of the broader suggestion made by Professor Sohn before the U.S. Senate Committee on Foreign Relations that the United States accept, on condition of reciprocity, the jurisdiction of the International Court of Justice with respect to any dispute relating to the interpretation or application of any treaty to which this country is a party. Strengthening the International Court of Justice. Hearings before the Senate Comm. on Foreign Relations, 93rd Cong., 1st Sess., at 188 (1973).

2 Professor Sohn referred in general to “illegal” acts of the United Nations, but the content of his note seems to suggest that he had especially in mind the activity of the political organs of the Organization. Accordingly, this writer will consider mainly, if not exclusively, the impact of the judicial decisions concerning the interpretation or application of the Charter upon the practice of that category of organs.

3 At the San Francisco Conference, the Belgian Delegation made two different proposals, the adoption of which might have led to the establishment of a sort of judicial review of acts of the UN political organs involving the interpretation or application of the Charter. Thus, among the amendments submitted by the Belgian Delegation to the Dumbarton Oaks Proposals it was recommended that “[a]ny State, party to a dispute brought before the Security Council, shall have the right to ask the Permanent Court of International Justice whether a recommendation or decision made by the Council or proposed in it infringes on its essential rights. If the Court considers that such rights have been disregarded or threatened, it is for the Council either to reconsider the question, or to refer the dispute to the Assembly for decision.” Doc. 2, G/7 (k)(l), Docs. 336, 3 UNCIO (1945). Also, the records of Committee IV/2 (Legal Problems) disclose that the majority in the Committee “decided to reject the Belgian suggestion of referring interpretation disagreements on the Charter between organs to the Court as an established procedure.” Doc. 843, IV/2/37, Docs. 645, 13 UNCIO (1945).

4 This possibility was expressly emphasized in that part of the report of Committee IV/2 which deals with the interpretation of the Charter: “If two Member States are at variance concerning the correct interpretation of the Charter, they are, of course, free to submit the dispute to the International Court of Justice as in the case of any other treaty.” Doc. 933, IV/2/42 (2), 13 UNCIO Docs. 709 (1945).

5 This amounts to saying in the words of the pronouncement made by the Permanent Court of International Justice in the Case Concerning Certain German Interests in Polish Upper Silesia that “legal principles accepted by the Court in a particular case cannot be binding upon other States or in other disputes.” [1923] PCIJ, ser. A, no. 7, at 19.

6 [1963] ICJ REP. 33.

7 Needless to say, the political organs and the Secretariat of the United Nations cannot participate in the judicial proceedings, because they have no locus standi in judicio. As regards those member states which have not accepted the compulsory jurisdiction of the Court, it is improbable that they would find it advisable to intervene in the proceedings instituted by the United States, and by doing so to accept implicitly that the construction given the Charter by the judicial decision is equally binding upon them in accordance with Article 63, paragraph 2, of the Statute.

8 For the relatively poor impact of the advisory opinions upon the practice of the political organs, save in Namibia and Spanish Sahara cases, see 2 Rosenne, The Law and Practice of the International Court, 747-54 (1965); Gross, , The International Court of Justice and the United Nations, 120 REC. DES CODRS 313, 411 et seq. (1967)Google Scholar.

9 See ICJ YEARBOOK 1973-1974: Australia (at 50); Austria (at 51); Belgium (at 52); Botswana (at 52); Canada (at 53); Colombia (at 54); Costa Rica (at 55); Denmark (at 55); Dominican Republic (at 55); El Salvador (at 57); Finland (at 58); Gambia (at 59); Haiti (at 59); Honduras (at 60); India (at 60); Israel (at 61); Japan (at 62); Kenya (at 63); Khmer Republic (at 63); Liberia (at 64); Luxembourg (at 65); Malawi (at 66); Malta (at 67); Mauritius (at 68); Mexico (at 69); Netherlands (at 69); New Zealand (at 70); Nicaragua (at 71); Nigeria (at 71); Norway (at 72); Pakistan (at 72); Panama (at 73); Philippines (at 73); Portugal (at 74); Somalia (at 75); Sudan (at 75); Swaziland (at 76); Sweden (at 77); Uganda (at 78); United Kingdom (at 78); and Uruguay (at 80).

10 Admittedly, the interpretation and application of the Charter are included in the broadly worded declarations of acceptance of the optional clause, since such interpretation and application are legal questions, and the Charter is a general multilateral treaty, albeit, as the ICJ held in Certain Expenses of the United Nations, a treaty having certain special characteristics. [1962] ICJ REP. 157.

11 [1953] ICJ REP. 122.

12 ICJ Yeahbook 1973-1974, at 79.

13 See, for instance, his separate opinion in the Case Concerning Certain Norwegian Loans. [1957] ICJ REP. 44.

14 Gross, Bulgaria Invokes the Connolly Amendment, 56 AJIL 357, 381 (1962). The main difference between the two outstanding students of international law consists in the fact that Judge Lauterpacht, in placing emphasis on the will of states, considered that there could be no declaration of acceptance of the compulsory jurisdiction without the appended self-judging reservation; Professor Gross admitted, on the contrary, the possibility of detaching the reservation from the declaration, thereby keeping the state concerned in the vinculum juris created by its own will.

15 In the Case of Certain Norwegian Loans, as well as the Interhandel Case and the Case of the Aerial Incident of 27 July 1955, the Court found on other grounds that it did not have jurisdiction. However, in the first two cases, the requirement of exhaustion of local remedies could not, strictly speaking, preempt the matter of jurisdiction, and therefore the consideration of the self-judging reservation.

16 ICJ Yearbook 1973-1974, at 79.

17 In the computation of the states which have entered the two reservations, one must take into account that the Philippines has entered both of them.

18 ICJ Yearbook 1973-1974, at 68. It should be noted that Malta entered the prior reservation as well.

19 Sohn, supra note 1, at 852. This may not be necessarily true in the case of Effect of Awards of Compensation Made by the United Nations Administrative Tribunal ([1954] ICJ REP. 59) in which the Court did not agree with the submission made in the Written Statement of the United States of America, namely, that “the General Assembly has the right to refuse to give effect to awards of the Administrative Tribunal.” ICJ Pleadings 131, 136 (1954).

20 In the case of Certain Expenses of the United Nations, for instance, the Court found it necessary to point out: Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that at least three separate questions might arise in the interpretation of paragraph 2 of this Article. One question is that of identifying what are “the expenses of the Organization“; a second question might concern apportionment by the General Assembly; while a third question might involve the interpretation of the phrase “shall be borne by the Members.” It is the second and third questions which directly involve “the financial obligations of the Members”, but it is only the first question which is posed by the request for the advisory opinion. The question put to the Court has to do with a moment logically anterior to apportionment, just as a question of apportionment would be anterior to a question of Members’ obligation to pay. [1962] ICJ REP. 157-58.

21 The last two advisory opinions of the Court, in the Namibia and Spanish Sahara cases, may well substantiate the observation made in the text.

22 [1962] ICJ REP. 157.

23 Various pronouncements by the Court in that case apparently lend support to two different interpretations: that the Court did not consider it within its power to examine impliciter the legality of resolutions adopted by the political organs of the United Nations, and that the Court, on the contrary, acknowledged having in principle such a power but did not find it necessary to go too far in this direction in the actual case. The separate and dissenting opinions of several judges seem, however, to suggest that the obvious hesitation shown by the Court in its opinion was determined by the existence of conflicting views on its bench. Thus, among the judges voting for the opinion, Judges Padilla Nervo and F. de Castro implied that the Court could not advise on the legality of the resolutions adopted by the political organs unless requested to do so. [1971] ICJ REP. 117 and 181. Per contra, Judge Petren was of the opinion that the majority of the Court should have expressed itself more precisely and firmly on the question that there can be no legal consequences based on illegal resolutions (id. at 131); and Judges Onyeama and Dillard affirmed in stronger terms the duty of the Court to examine in the exercise of its judicial function those resolutions of the political organs which are relevant to the question posed to it (id. at 145 and 151). Whereas the last three judges were satisfied with the examination made by the Court, two dissenting judges, Fitzmaurice and Gros, questioned whether such an examination had actually been undertaken (id. at 303 and 331).

24 [1963] ICJ REP. 33. Also in the case of Legal Consequences for States of the Continued Presence of South Africa in Namibia, the Court made unmistakenly clear that it did not “possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.” [1971] ICJ REP. 45.

26 See text at note 31 infra.

26 See supra p. 333.

27 See, for instance, Eagleton, The United Nations: a Legal Order?, in Law and Politics in the Would Community. Essays on Hans Kelsen's Pube Theory and Related Problems in International Law 136 et seq. (Lipsky, comp. & ed. 1953); Giraud, , Modification et terminaison des traités collectifs, 49 (I) Annuaire De L'institut De Droit International (session de Salzburg) 5, 61–62 (1961)Google Scholar; Tunkin, , The Legal Nature of the United Nations, 119 REC. DES COURS 51–52 (1966)Google Scholar; 2 Chaumont, L'ORGANISATION Des Nations Undss 79 (1966).

28 Sohn, supra note 1, at 853. His recommendation is strengthened, among others, by the following pronouncement of the Permanent Court of International Justice in the case of The Electricity Company of Sofia and Bulgaria: “It is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to that situation or fact. A situation or fact in regard to which a dispute is said to have arisen must be the real cause of the dispute.” [1939] PCIJ, ser. A/B, No. 77, at 82. The determination of the critical date of a legal dispute remains, however, one of the most complex problems of international adjudication.

29 Sohn, supra note 1, at 854.

30 The acceptance of the compulsory jurisdiction of the International Court of Justice can by no means be regarded as a conditio sine qua non for achieving greater caution and restraint in any further interpretation of the Charter by the policymakers of the United States or any other country.

31 Judge Basdevant wrote: Cela étant, lorsque le ministre des Affaires étrangères se trouve en face d'un différend avec un Etat, ou en face d'une situation susceptible de donner naissance a un différend, il doit se demander si, en l'espèce, la voie judiciaire est ouverte et si cette voie est avantageuse ou dangereuse pour la sauvegarde des intérêts dont il a la charge. La place et le rôle de la justice Internationale dans les relations entre Etats et à l'égard des organisations intemationales, Les Affaires Ethangehes 343 (1959).

32 This does not mean, of course, in the opinion of this writer, that international courts and tribunals cannot have powers which are not vested in the municipal courts, as die question might inadvertently suggest.

33 One could ask, for instance, whether the Department of State has not actually acted in pursuance of that line of conduct which was briefly, but accurately, described by Jenks: L'expérience fournit la preuve que les inconvénients résultant de 1'existence des vues divergentes sur l'interprétation qu'il convient de donner à un instrument collectif seront rarement considéréd par les dirigeants des affairs étrangères d'un Etat comme un motif sufflsant pour accepter la responsabilité politique d'avoir intenté une procédure contentieuse contre un autre Etat. Instinctivement, les différents Etats se prêtent un secours mutuel pour échapper à tout contrô1e juridictionnel établi dans le but de renforcer l'ordre juridique international. Les instruments internationaux à caractère collectif, 69 REC. DES COUHS 448, 514-15 (1939).

34 As Professor Bin Cheng put it in another context: [Wjhen a State accepts in advance the duty to submit to international adjudication … it must always behave in such a manner that, if brought before the court, its conduct stands at least a fair chance of being upheld. In other words, where a State has accepted in advance the duty to go to the International Court of Justice or to go to arbitration, the international law that is applicable to it becomes different in nature. One may call this law justiciable or arbitrable international law. It is very much superior in quality to the auto-interpretation type of international law. Charter of the Untied Nations. Gradual Extension of the Compulsory Jurisdiction of the International Court of Justice (discussion), International Law Association, Report of the Eifty-First Conference 23, 44 (1964).

35 Hudson, , The Twenty-Sixth Year of the World Court, 42 AJIL 16 (1948).CrossRefGoogle Scholar