1. UN Charter, Art.93(1).

2. Idem, Art.93(2).

3. ICJ Statute, Art.35(1).

4. Security Council Res.9(1946), reprinted in (1995–1996) ICJ Yearbook 68–69.Google Scholar

5. It is possible that the substantive portion of a treaty may have been terminated before a case arising under it is brought before the ICJ. In such a case, however, its provision relating to dispute settlement must be still in operation when the case is instituted. For this reason, it is better to treat such a treaty as still in force when the case starts.

6. It appears that this issue has been discussed or mentioned only in the following major scholarly sources: Shabtai Rosenne, The Law end Practice of the International Court, 1920–1996 (3rd edn, 1997). Vol.2, pp.628–630, 661–662Google Scholar, The Law and Practice of the International Court (2nd edn, 1985), pp.278–282, 332–333Google Scholar and Idem (1st edn, 1965), Vol.1, pp.278–282, 332–333; Salo, Engel, “States Parties to the Statute of the International Court of Justice”, in Leo, Gross (Ed), The Future of the International Court of Justice (1976), Vol.1, pp.287–310Google Scholar; Shihata, Irahirn F. I., The Power of the International Court to Determine Its Own Jurisdiction (1965), pp.89–91, 142–143Google Scholar; Michel, Dubisson, La Cour international de Justice (1964), p.138Google Scholar; Hudson, Manley O., The Permanent Court of International Justice, 1920–1942 (1943), pp.390–392Google Scholar and The Permanent Court of International Justice (1934), pp.349–350Google Scholar; Fachiri, Alexander P., The Permanent Court of International Justice (2nd edn, 1932), pp.65–69Google Scholar and Idem (1st edn, 1925), pp.56–58.

7. See infra Section B.

8. I.C.J. Rep. 1993, 1.Google Scholar

9. Rosenne, (3rd edn), op. cit supra n.6, at p.630.Google Scholar

10. I.C.J. Rep. 1993, 1, 12–14, paras. 15–17.Google Scholar

11. Ibid.

12. Normally, FRY's self-interest in this particular case would have prompted it to raise this question in order to have the case dismissed, but the ICJ's order did not indicate that FRY did so in this case, apparently for the strategic purpose of promoting its recognition by the international community as the continuator of Yugoslavia. But since this is an important question involving capacity of the parties or jurisdiction ratione personae, the ICJ apparently addressed it sua sponte.

13. I.C.J. Rep. 1993, 1, 15, para.18.Google Scholar

14. Idem, para.19.

15. See text accompanying infra nn.74–78.

16. Rosenne, , op. cit. supra n.6, 1st and 2nd edns, both at p.278, n.1.Google Scholar

17. Idem (3rd edn), pp.628–630. His new-found answer is the second interpretation as put forward in infra Section C

18. See text accompanying infra nn. 69–74.

19. ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-Claim Order), 17 Dec 1997.

20. Rosenne, (3rd edn), op. cit supra n.6, at p.630, n.52.Google Scholar

21. ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections), I.C.J. Rep. 1996, 595.Google Scholar

22. See infra Section D.

23. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331.

24. Idem, Art.31.

25. Idem, Art.32.

26. One could also use the time when the Statute entered into force as the cut-off time. It is somewhat better, however, to use the time when the Statute was adopted for this purpose as that adoption would have provided sufficient notice to the treaty-makers to take account of this provision in a future treaty.

27. Shihata, , op. cit supra n.6, at p.143Google Scholar, argued that in the absence of a third solution that would solve the dilemma of the choice between giving effect to the general rule (control by the Security Council) and an exception thereto (“subject to special provisions contained in treaties in force”), “the first should be saved at the expense of the latter, not vice versa”. His support for this view is that the declarations of non-parties to the Statue seem to be in conformity with this conclusion: Ibid. This argument is suspect. First, the defect in this view is that it would read the whole exception out of Art35(2), thus disregarding the express terms of the Statute, which should be disfavoured. It is worth noting that the ICJ's ruling in Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), supra n.8, at p.15, para.19Google Scholar, has the opposite effect, Le. favouring the exception at the expense of the general rule. Second, while it is true that some non-parties to the Statute have filed general declarations under Security Council Res.9(1946) to cover “treaties in force” or all matters, they may have done so out of an overabundance of caution, rather than risking their reliance on the exception, since such a general declaration may cover all matters including those covered by the exception itself. Third, Shihata cited only the declarations of the Federal Republic of Germany and Republic of Vietnam, thus casting a doubt as to whether such State practice has been general enough to be meaningful. Finally, Shihata recognised the weakness of his argument He placed a condition precedent to his argument, which is the absence of a third solution. It is this third solution that is being discussed in this article. As Shihata's argument not so much interprets the phrase “treaties in force” as disregards it, it will not be discussed further.

28. This provision states: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

29. This provision states: “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”

30. Art.103 of the UN Charter provides that obligations under the Charter shall prevail over all other obligations under other treaties, as between UN members.

31. See text accompanying infra nn.80–89.

32. See infra Section C.3.

33. The old Art.35 states in part: “The court shall be open to the Members of the League and also to States mentioned in the Annex to the Covenant… The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Council, but in no case shall such provision place the parties in a position of inequality before the Court.” PCIJ Statute. Art.35,.in League of Nations, Documents concerning the Action Taken by the Council of the League under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (1921). pp.258, 263.Google Scholar

34. See Council Res. of 17 May, 1922, reprinted in PCIJ, Annual Report (1 01 1922–15 06 1925), Ser.E, No.1, p.142.Google Scholar

35. 14 U.N.C.I.O. 821, 839.

36. The summary records of the drafting process in Washington and in San Francisco did not appear to show that the interpretation of the phrase “treaties in force” was addressed, but see infra n.107 and accompanying text It was clearly intended, however, that the ICJ should, in general, draw upon the jurisprudence of the PCIJ. Art.92 of the UN Charter states that the ICJ Statute is based on the PCIJ Statute. The Rapporteur of Committee IV/1 stated that “To make possible the use of the precedents under the old Statute the same numbering of the articles has been followed in the new Statute”: 13 U.N.C.I.O. 381, 384.

37. Secretariat of the League of Nations, Memorandum on the Different Questions Arising in Connection with the Establishment of the Permanent Court of International Justice, reprinted in Permanent Court of International Justice Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of Intemational Justice (1920), pp.1, 15 (Secretariat Memorandum).Google Scholar

38. Idem, pp.15–17.

39. Idem, p.17 (“the draft Conventions relative to Mandates ‘A’ affecting the Turkish Empire contain a clause which runs as follows: … (2) States, members of the League of Nations, may likewise bring any claims on behalf of their subjects or citizens, for infraction of their rights under this mandate, before the [PCIJ] for decision.”).

40. Permanent Court of International Justice Advisory Committee of Jurists, Procès Verbaux of the Proceedings of the Committee (1920), p.523 (Root–Phillimore Plan. Art.28).Google Scholar

41. Idem, p.540 (remarks of Ricci-Busatti).

42. Ibid.

43. Text prepared by the Drafting Committee, of a Draft Scheme for the establishment of a Permanent Court of International Justice, Art.28, Idem, pp.561, 566 (“The Court shall be open to the States mentioned in the Annex to the Covenant of the League of Nations… It is also open to States which accept the conditions laid down by the Council of the League of Nations, in accordance with Article 17 of the Covenant.”).

44. Idem, p.614.

45. Idem, p.679 (Art.32).

46. Draft Scheme for the Institution of the Permanent Court of International Justice, mentioned in Art.14 of the Covenant of the League of Nations, Presented to the Council of the League by the Advisory Committee of Jurists, as Amended by Virtue of the Decisions of the Council, Art.32, reprinted in League of Nations, op. cit supra n.33, at pp.54, 57.Google Scholar

47. Idem, p. 140

48. Idem, p. 141

49. “Central Powers” as used during the First World War era referred to Austria, Germany and Turkey: Arnold Toynbee, Fred L. Israel and Emanuel Chill, Major Peace Treaties of Modern History (1967), Vol.2, p.1227.Google Scholar

50. League of Nations, op. cit supra n.33, at p.141.Google Scholar

51. Ibid.

52. Secretarial Memorandum, supra n.37. at pp.15–17.Google Scholar

53. League of Nations, op. cit supra n.33, at p.141.Google Scholar

54. Ibid.

55. Idem, p.211.

56. Idem, p.141.

57. Ibid.

58. Idem, p.143.

59. Idem, p.144.

60. Ibid.

61. Ibid.

62. Report Submitted to the Third Committee by Hagenip, M. on Behalf of the Sub-Committee, which was submitted to the Assembly as the Report of the Third Committee, reprinted in League of Nations, op. cit supra n.33. at pp.206, 210Google Scholar; also quoted in the minutes of a meeting of the PCIJ on 21 July, 1926 on amending its Rules of Court at PCIJ, Acts and Documents (1926), Ser.D. No.2, Add., p.107.Google Scholar

63. It may be worth noting that Judge Anzilotti participated in the League of Nations Advisory Committee of Jurists conference and was paid a tribute in the Council. There the French representative stated that “it is difficult to express sufficiently our admiration and our sincere gratitude…to the Jurist instructed by the Secretary-General to represent him at the Conference, Commendatore Anzilotti, whose share in the preparation of the work was a considerable one”: Report on the Draft Scheme of the Advisory Committee of Jurists for the Establishment of the Permanent Court of International Justice, in League of Nations, idem, pp.21, 24

64. PCIJ, op. cit supra n.62, at p. 105.Google Scholar

65. The Third Committee adopted this article without any meaningful discussion: League of Nations, op. cit supra n.33, at p.102.Google Scholar

66. PCIJ, 1923, Ser. A, No.1.

67. PCIJ, op. cit. supra n.62 at p. 75 (remarks by the Registrar).Google Scholar

68. Judge H. Lauterpacht eloquently argued against reliance on the secret state of the mind of the ICJ when it was called upon to interpret a 1950 opinion. He stated: “It is for this Court confronted as it is with an apparent gap in the opinion of the Court of 1950 with respect to a situation which calls for clarification, to fill the lacuna by all available means of interpretation. These do not include the knowledge of any particular member of the present Court as to the state of his—or his colleagues'—minds at the time when the Advisory Opinion was rendered in 1950”: Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (Advisory Opinion) I.C.J. Rep. 1955, 67, 96 (Sep. Op. of Judge Lauterpacht).Google Scholar

69. See text accompanying supra nn.47–55.

70. PCIJ. op. cit. supra n.62, at p.76 (remarks by the President).Google Scholar

71. Idem, p.106 (remarks by the President).

72. Fachiri, (2nd edn), op. cit. supra n.6, at p.68.Google Scholar

73. Hudson (1943). loc. cit. supra n.6.

74. PCLJ, Ser.A. No.6.

75. Idem, p.11.

76. Ibid.

77. PCIJ. op. cit. supra n.34. at p.261Google Scholar (16 May 1925). The PCIJ went on to say: “The Respondent would always be at liberty to file a plea to the jurisdiction based on the absence of such a declaration.”

78. See supra Section B.

79. PCIJ, op. cit supra n.62. at p.76 (remarks by the Registrar).Google Scholar

80. Ibid.

81. Idem, p.309 (Draft Art.35(2) of the Rules of Court, proposed by the Registrar).

82. Idem, p.105 (remarks by Judge Anzilotti).

83. Ibid.

84. Ibid.

85. Ibid.

86. As to how the question whether a declaration is necessary was to be determined, there was vacillation in the discussion of the Judges. Anzilotti stated: “The Court would decide in each particular case as to the necessity for the declaration, and it was not necessary hence-forth to adopt a general rule“: Idem, p.106. Then the President opined that “as the declarations might give rise to constitutional questions difficult to solve, [he] would be inclined to say nothing unless one of the Parties raised the point”: Ibid. Anzilotti agreed. But shortly afterwards he reiterated his view that “it would be for the Court, in principle, to decide, but that if it was not in session that duty would necessarily fall on the President”: Idem, p. 107. The President then “recalled that if nothing was said it was always for the Court to decide. If, in a particular case, the declaration was not filed and the other Party raised an objection to the Court's jurisdiction on that ground, the Court would decide, but only when it met Moreover, according to the actual terms of the Resolution of the Council (No.5), ‘all questions as to the validity or the effect of a declaration made under the terms of this Resolution shall be decided by the Court,’ That applied, a fortiori, to the question whether the declaration was or was not required”: ibid. After that, Anzilotti's proposal was adopted: ibid. Contra, Rosenne (3rd edn), op. cit. supra n.6. at p.662, where the learned author appears to ignore the PCIJ's view of its duty to decide the issue when neither party raised the issue.

87. PCIJ, idem, p.107.

88. Ibid.

89. Ibid. The final version of the para, reads: “The declaration provided for in the Resolution of the Council of the League of Nations of May 17th, 1922 (Annex) shall, when it is required under Article 35 of the Statute, be filed with the Registry not later than the time fixed for the deposit of the first document of the written procedure”: PCIJ, Ser.D, No.1, pp.35–36 (2nd edn, 1931).Google Scholar

90. Idem, p. 106 (remarks by the President).

91. In the light of the history sketched above. Hudson's statement (1943), op. cit supra n.6. at p.391Google Scholar, that “The question was considered by the Court in 1926, but no definite solution was reached” would appear to have resulted from an overabundance of caution. Similarly, the Registrar in 1936 noted: “It was decided… not to lay down, once and for all. in what cases declarations were required (question of the Peace Treaties)” Report of the Registrar of the Court, reprinted in PCLI. Ser.D, No.2, 3rd Add., p.818 (1936).Google Scholar

92. In 1936 the PCIJ, without discussing the interpretation of the phrase “treaties in force”, decided to “simplify the text by deleting the reference to Article 35 of the Statute, which was not really justified by the terms of that Article and which, moreover, was unnecessary”: PCIJ, idem, p.729 (the President presenting the views of the Drafting Committee). The amended rule simply stated: “The declaration provided for in the Resolution of the Council of League of Nations dated May 17th, 1922. shall be filed with the Registry at the same time as the notification of the appointment of the agent”: idem, pp. 1006–1007. This change does not appear to affect the PCIJ's view of the meaning of the phrase “treaties in force”.

93. Hudson (1943). op. cit supra n.6; Fachiri, (2nd edn). op. cit. supra n.6.Google Scholar

94. See Report of the Rapporteur of Committee IV/1.13 U.N.C.I.O. 304. 309 (1945).Google Scholar

95. Hudson, (1943), op. cit. supra, n.6, at pp.391–392Google Scholar

96. Preservation of the PCIJ's jurisdiction for the ICJ is expressly done through Arts. 36(5) and 37. But Shihata. op. cit. supra n.6, at p.143.Google Scholar implied that it is a possibility that the exception in Art.35(2) is meant to cover the peace treaties relating to the First World War.

97. The San Francisco Conference apparently discussed how to deal with the enemy States in the context of the new Court, but no details or outlines of the peace treaties were mentioned and the discussions appeared to be focused on the condition under which these States may become parties to the Statute. See Chairman of the US Delegation, Report to the President on the Results of the San Francisco Conference (1945). p.140.Google Scholar

98. See Manley, Hudson, “The Twenty-Fourth Year of the World Court” (1946) 40 A.J.I.L. 1, 32.Google ScholarSee also Shihata. op. cit. supra n.6. at pp.136–139.Google Scholar

99. The parties chose binding arbitration. See Interpretation of the Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) I.C.J. Rep. 1950. 65, 73–75.Google Scholar

100. Treaty of Peace with Japan, signed at San Francisco, 8 Sept. 1951. Art.22, as reproduced in (1951–1952) ICJ Yearbook 212–213.Google Scholar The required declarations were filed by Japan, Celon, Cambodia, Laos and Vietnam: Idem, pp.213–214, idem. (1952–53). p.200.

101. Rosenne, (3rd edn), op. cit supra n.6, at p.629.Google Scholar

102. See supra nn.37–39 and accompanying text.

103. See supra nn.77–89 and accompanying text.

104. Rosenne, (3rd edn), op. cit. supra n.6, at p.630.Google Scholar

105. See text accompanying supra n.30.

106. Rosenne, (3rd edn), op. cit. supra n.6, at p.630.Google Scholar

107. There was some discussion within the UN Committee of Jurists in Washington as to whether the General Assembly should have the power to lay down the conditions also. Professor Basdevant (France) stated: “The Council furthermore would have to take into account any existing treaties, and it could not prevent access to the Court when a State had a treaty providing for compulsory jurisdiction.” He suggested that Art.35 should be accepted as it stood. He was seconded explicitly by one member of the Committee of Jurists: 14 U.N.C.I.O. 144. There was no indication as to whether this view was generally accepted by the majority of the members, although Art.35 was ultimately adopted with no substantive change.

108. Vienna Convention on the Law of Treaties, Art.53. See also Ian Brownlie, Principles of Public International Law (4th edn, 1990), pp.512–515.Google Scholar

109. See supra Section B.