¹ “The First Year of the Permanent Court of International Justice,” 17 A.J.I.L. 15-28, at 26 (1923).

² Ibid.

³ Ibid. at 27.

⁴ “ The Second Year of the Permanent Court of International Justice,” 18 A.J.I.L. 1-37, at 1 (1924).

⁵ Ibid.

⁶ elbid. at 25, 29.

⁷ Ibid, at 37.

⁸ “Manley Hudson, 1886-1960,”54 A.J.I.L. 603-604, at 604 (1960).

⁹ Inteihandel Case (Switzerland v. U. S.), [1959] I.C.J. Eep. 6. A digest of the opinion appeared in this JOURNAL, Vol. 53, pp. 671-687 (1959). For an analysis of the Court’s opinion see Briggs, “Interhandel: The Court's Judgment of March 21, 1959, on the Preliminary Objections of the United States,, ibid. 547-564. For other comments on the case and its earlier phase see: Hudson, The Thirty-Sixth Year of the World Court,” 52 ibid, at 4 f. (1958); Briggs, “Towards the Rule of Law?” 51 ibid. at 519 (1957); Jacoby, “Towards the Eule of Law?” 52 ibid. 10 ff. (1958); Briggs, ,The United States and the International Court of Justice,, 53 ibid. 307 ff. (1959); Simmonds, ,The Interhandel Case,” 10 Int. and Comp. Law Q. 495-547 (1961); Charles De Visscher, L’Affaire de 1’Interhandel devant la Cour Internationale de Justice,” 63 Eev. Gén. de Droit Int. Public 413-433 (1959); Jillson, note, 58 Mich. Law Eev. 467 (1960) ; note, 1960 Duke Law J. 73.

¹⁰ Case concerning the Aerial Incident of July 27, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26, 1959, [1959] I.C.J. Eep. 127 at 130; digest in 5/3 A.J.I.L. 923-937 (1959). See also, on this case, Carlisch, “Recent Judgment of the International Court of Justice in the Case concerning the Aerial Incident of July 27, 1955, and the Interpretation of Article 36(5) of the Statute of the Court,” 54 A.J.I.L. 855 (1960); note, 1960 Duke Law J. 240; Conac, “L’Affaire relative a l’Incident Aérien du 27 juillet 1955 entre Israël et la Bulgarie devant la Cour Internationale de Justice,” 64 Eev. Gén. de Droit Int. Public 711 (1960).

¹¹ Note Verbale of Feb. 14, 1956, from the Israel Legation in Sofia to the Bulgarian Ministry for Foreign Affairs. I.C.J. Pleadings, Aerial Incident of 27 July 1955 (Israel v. Bulgaria; United States of America v. Bulgaria; United Kingdom v. Bulgaria), p. 17 (cited hereinafter as Pleadings). The damages were described as

¹² Pleadings at 6. The extent of the government's claim is detailed ibid, at 112.

¹³ Ibid, at 116.

¹⁴ Pleadings at 84. The admissions referred to by the Israeli Government resulted from a Bulgarian commission of inquiry and were adopted in the Note Verbale of Aug. 4, 1955, from the Bulgarian Ministry for Foreign Affairs to the Israeli Legation in Sofia, ibid, at 13. The Israeli Government construed these admissions as “binding ami conclusive in themselves.” ibid, at 100. See also memorial of the United Kingdom, ibid, at 358 f., and generally, Lissitzyn, “ T h e Treatment of Aerial Intruders in Eecent Practice and International Law,- 47 A.J.I.L. 559-589 (1953).

¹⁵ [1959] I.C.J. Eep. at 131 f. and 133. Cf. also Pleadings at 132. For the oral statement by Professor Cot, cf. ibid, at 438 ff.

¹⁶ Pleadings at 159. See also ibid, at 520, 524, 532-535.

¹⁷ [1959] I.C.J. Eep. at 132. In its original form this objection was as follows:“ Article 36, paragraph 5, of the Statute of the International Court of Justice is inapplicable in regard to the People's Bepublic of Bulgaria.” ibid, at 131.

¹⁸ Oral Argument by Mr. Bosenne (Israel), Pleadings at 535 f.

¹⁹ [1959] I.C.J. Rep. at 146.

²⁰ The distinction was made by the Bulgarian Advocate, Professor Cot, in oral argument. Pleadings at 392.

²¹ [1959] I.C.J. Eep. 127.

²² The French text, which played a significant role in argument, is as follows: 5. Les déclarations faites en application de l’article 36 du Statut de la Cour permanente de Justice Internationale pour une durée qui n’est pas encore expirée seront considérées, dans les rapports entre parties au présent Statut, comme eomportant acceptation de la juridiction obligatoire de la Cour internationale de Justice pour la duree restant à courir d’après ces déclarations et conformément à leurs termes.

²³ [1959] I.C.J. Eep. 127 at 137.

²⁴ Ibid, at 139.

²⁵ Ibid

²⁶ wlbid. at 140-141.

²⁷ Ibid, at 142.

²⁸ Ibid.

²⁹ Ibid, at 143.

³⁰ Ibid

³¹ Ibid, at 144.

³² In a reductio ad absurdum of the Bulgarian contention, the joint dissentingopinion points out that Art. 36, par. 5, might have been completely frustrated if the Permanent Court had been dissolved prior to entry into force of the Charter, with the effect of invalidating all declarations which were in force at the time of the drafting of the Charter. [1959] I.C.J. Rep. at 167. The Court did not consider this fatal flaw inherent in the Bulgarian contention, nor does it seem to have been noticed by Israel.

³³ Ibid, at 144.

³⁴ Ibid,

³⁵ Pleadings at 383, 388, 393.

³⁶ Ibid. at 413.

³⁷ Ibid, at 549.

³⁸ Ibid, at 142, 475. The notion of devolution was borrowed from Kaeckenbeeck, 70 Hague Academy Eecueil des Cours 212 (1947).

³⁹ Pleadings at 462, 469, 578. For the Bulgarian rebuttal, see ibid, at 542-545.

⁴⁰ Ibid, at 144. It may be noted in passing that Bulgaria, in support of the contention that its 1921 Declaration had lapsed, referred to the fact that the Yearbook of the I.C.J, did not include Bulgaria in the list of states still bound by old declarations. bid, at 129. Israel rejected this argument, saying that the Yearbook prepared by the Registry is not evidence for the validity or even the existence of instruments conferring or purporting to confer jurisdiction on the Court. ibid, at 149.

⁴¹ Ibid, at 400, 414, 415.

⁴² Ibid, at 484, 497. For further Bulgarian and Israeli statements on this, see ibid. at 553 f., 581, 584. The point was also made by the United States in its observations, ibid, at 313, 320.

⁴³ It is, however, mentioned without elaboration in the joint dissenting opinion and in the dissenting opinion of Judge ad }wc Goitein. [1959] I.C.J. Eep. at 189-190, 202, 204.

⁴⁴ In a somewhat different context the joint dissenting opinion declares: “Admittedly, an international obligation may cease to exist for reasons other than lapse of time; it may, for instance, terminate because of the fulfilment of its object, denunciation in a manner provided in the instrument, or its dissolution by mutual agreement.” [1959] I.C.J. Rep. at 162. This observation may well have a bearing on the point, that is, on the question whether legally Bulgaria could have unilaterally withdrawn her Declaration. See also Anand, Compulsory Jurisdiction of the International Court of Justice 176 ff. I t may be noted that Judges Badawi and Armand-Ugon considered that Bulgaria's Declaration was not covered by Art. 36, par. 5, precisely because it was made for an indefinite duration. As construed by them, the concluding words of that paragraph presupposed only declarations made for a definite period of time. [1959] I.C.J. Eep. at 150 and 154. For a decisive rebuttal of this view, see joint dissenting opinion, ibid. at 192-194.

⁴⁵ [1959] I.C.J. Rep. at 163. For the evaluation of the five languages of the Charter see ibid. 161-162.

⁴⁶ Ibid at 163.

⁴⁷ Ibid, at 164, 171, 180, 181.

⁴⁸ Ibid, at 164

⁴⁹ “ The intention of paragraph 5 which used the words shall be deemed . . . to be acceptances’ is to cut clear through any cobweb of legal complications and problems which might arise in this connection.” ibid, at 168.

⁵⁰ Ibid. See also p. 173 for a statement of the importance attached to the subject of succession in international organizations.

⁵¹ Ibid, at 169. The concrete example given is that of the impact of war on some treaties.

⁵² Ibid, at 170.

⁵³ Ibid, at 175 ff. The literature in question consisted of Judge Manley O. Hudson's article, “ T h e Twenty-Fifth Year of the World Court,” 41 A.J.I.L. 1-19, at 10 (1947). This article figured prominently in the argument of both Israel and Bulgaria. It may be noted that, as stated in the joint dissenting opinion, the limitation of Art. 36, par. 5, to original Members was not invoked by Bulgaria and not argued by the parties, although it is the alternative basis for the judgment of the Court. Cf. ibid, at 170, 175, 186.

⁵⁴ Ibid. at 186; but see also 177, 182, 187.

⁵⁵ Ibid, at 176. Sec also particularly, with reference to the last point, the forceful statement at 187

⁵⁶ The joint dissenting opinion found it necessary to discuss this requirement because “o f some considerations underlying the Judgment of the Court.” ibid, at 188.

⁵⁷ Ibid, at 189

⁵⁸ Ibid, at 190

⁵⁹ Ibid. at 191

⁶⁰ Ibid. at 191-192. Several instances are cited in support of the argument that in the past the Court has applied the test of reasonableness “ as a motive not for defeating but for upholding its jurisdiction.”

⁶¹ Pleadings at 35, 332.

⁶² wlbid. at 36.

⁶³ iud. and 331.

⁶⁴ siBosenne, The International Court of Justice 284 (1957).

⁶⁵ [1957-1958] I.C.J. Yearbook 211.

⁶⁶ Communication from the Bulgarian Government to the President of the Court of May 14, 1959. Pleadings at 695.

⁶⁷ Pleadings at 698.

⁶⁸ Case concerning the Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria), Order of Aug. 3, 1959, [1959] I.C.J. Bep. 264.

⁶⁹ Pleadings at 23. For a more detailed analysis of this case, see Gross, “ Bulgaria Invokes the Connally Amendment,” 56 A.J.I.L. 357-382 (1962).

⁷⁰ Observations and Submission of the Government of the United States of America on the Preliminary Objections of the Government of the People's Eepublic of Bulgaria, February, 1960. Pleadings at 307. See ibid, at 311-322, for construction of Art. 36, par. 5.

⁷¹ Ibid, at 310-311.

⁷² Ibid. at 167 ff.

⁷³ Ibid. at 265 ff.

⁷⁴ The application “ must also, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court”

⁷⁵ Art. 62, par. 1: “ A preliminary objection must be filed by a party at the latestbefore the expiry of the time-limit fixed for the delivery of its first pleading.” Eelevant also is par. 2 of Art. 62: The preliminary objection shall set out the facts and

⁷⁶ Pleadings at 273-276.

⁷⁷ United States Observations, ibid, at 306.

⁷⁸ Cf. p. 768 above, note 70.

⁷⁹ Pleadings at 272 (author's translation).

⁸⁰ Ibid, at 271-273. Bulgaria also said that “ b y dint of such an ad hoc renunciation motivated solely by opportunistie eonsiderations, the Government of the United States would aim to preserve for the future and in all cases in which it would be the respondent the benefit of its own reservations without being exposed to their drawbacks in cases in which it was the plaintiff.”

⁸¹ Ibid, at 308, 323.

⁸² Ibid, at 308.

⁸³ Ibid, at 324 f

⁸⁴ Ibid. at 323.

⁸⁵ See the United States submissions, ibid, at 330, where the Court is requested to overrule the Bulgarian objections

⁸⁶ Ibid. at 325

⁸⁷ Ibid, at 676.

⁸⁸ Case concerning the Aerial Incident of 27 July 1955 (United States v. Bulgaria), Order of May 30, 1960, [1960] I.C.J. Eep. 146.

⁸⁹ For a fuller presentation and analysis, see Gross, loc. cit. at 370 ff.

⁹⁰ Case concerning Sovereignty over Certain Frontier Land, Judgment of June 20, 1959, [1959] I.C.J. Eep. 209, at 211; I.C.J. Pleadings, under the same title, at 8. Digest in 53 A.J.I.L. 937-943 (1959). For a succinct analysis of the case, of. Verzijl, “The I.C.J. in 1959,” 7 Netherlands Int. Law Rev. 1-16, at 10-15 (1960). See also note, 1960 Duke Law J. 252; and note, 13 Revista Espafiola de Dereeho Internacional 519 (1960).

⁹¹ [1959] I.C.J. Rep. at 232.

⁹² For an historical sketch, cf. Netherlands Counter-Memorial, Pleadings at 37 ff.

⁹³ Pleadings at 463.

⁹⁴ Pleadings at 439, and [1959] I.C.J. Rep. at 214. The Court refers to the 1842 treaty as the “ Boundary Treaty” as distinguished from the “ Boundary Convention” of 1843,

⁹⁵ Art. 3. [1959] I.C.J. Eep. at 215, and Pleadings at 442.

⁹⁶ [1959] I.C.J. Eep. at 216, and Pleadings at 450.

⁹⁷ [1959] I.C.J. Eep. 216, and Pleadings at 452.

⁹⁸ [1959] I.C.J. Eep. 216.

⁹⁹ Pleadings, Netherlands Counter-Memorial at 36, 44 ff.

¹⁰⁰ Ibid. at 85 f

¹⁰¹ Ibid, at 88. “ I t is indeed accepted as a principle of international law as well as of the law of civilized nations, that an error vitiates the consent and, just like fraud or duress, deprives it of binding force. The error affects the very essence of the obligation so far as it relates to the contested plots.” (Translation of author.)

¹⁰² Ibid. at 89.

¹⁰³ [1959] I.C.J. Eep. at 220.

¹⁰⁴ Ibid.

¹⁰⁵ Ibid, at 224 and 226.

¹⁰⁶ Ibid, at 225.

¹⁰⁷ Ibid, at 226.

¹⁰⁸ Ibid. at 227.

¹⁰⁹ Ibid. at 228.

¹¹⁰ Ibid, at 229

¹¹¹ Ibid at 230.

¹¹² Loc. cit. at 11.

¹¹³ It may be relevant to recall that, according to the Judgment, the error, if there was one, occurred not on the part of the Commission but on the part of the Netherlands Commissioner. [1959] I.C.J. Rep. at 225 and 226.

¹¹⁴ [1959] I.C.J. Rep. at 231.

¹¹⁵ The non-possession of this document, he stated, invoked by the Belgian Government, cannot create for that Government a more favourable situation. It has neither explained nor proved when and how this disappearance occurred; neither accident nor force majeure has been put forward by way of explanation. It is a mere assertion on its part, made in 1955. ibid, at 235.

¹¹⁶ Said the Court: “ The Commission was not a mere copyist. Its duty was to ascertain what the status quo was. It had authority to fix the limits between the two States, which duty it discharged . . . it was aware of the discrepancy between the two copies of the Communal Minute . . . the Commission, by enquiries on the spot and by recourse to records and surveys of both communes, must have reached its own conclusion and determined, as was its duty, what the status quo was in relation to the disputed plots.” ibid, at 22G.

¹¹⁷ Ibid, at 231.

¹¹⁸ Judge Armand-TJgon in his dissenting opinion would have attached weight to this fact. Ibid, at 250.

¹¹⁹ Ibid. He referred to [1953] I.C.J. Hep. 67-70.

¹²⁰ Ibid, at 232.

¹²¹ Ibid, at 227.

¹²² Judge Lauterpacht, ibid, at 232.

¹²³ [1959-1960] I.C.J. Yearbook 240, 242.

¹²⁴ Ibid, at 240. This declaration replaced that dated Feb. 18, 1947, notice of the termination of which was received by the Secretary General of the United Nations on July 10, 1959. For the text of the earlier declaration, see [1957-1958] Yearbook 199.

¹²⁵ This is the date of the deposit of the declaration

¹²⁶ Ibid, at 241-242. For the text of an earlier declaration by India, terminated by a notice of Feb. 8, 1957, see [1955-1956] Yearbook 186.

¹²⁷ This is the date of the deposit of the declaration