¹ Hudson, M.O., The Permanent Court of International Justice, A Treatise (New York, Macmillan, 1934) 111Google Scholar; same, The Permanent Court of International Justice 1920–1942, A Treatise (New York, Macmillan, 1943) 119. The consequence was that a State having accepted this jurisdiction could unilaterally sue another State having accepted that jurisdiction. Traditionally, international litigation required the agreement of both parties.

² On this aspect, see Rosenne, Sh. (ed.), League of Nations, Committee of Experts for the Progressive Codification of International Law [1952–1928], (New York, Oceana Publications Inc., 1972) xxxGoogle Scholar.

³ 54 L.N.T.S. passim.

⁴ 8 September 1926. Germany withdrew from the League on 21 October 1933, effective 20 October 1935. Throughout its membership, Germany was a permanent member of the Council of the League. For the text of the Covenant, see Kapteyn, et al. , International Organization and Integration, (Doordrecht, Martinus Nijhoff, 1981) vol. IA, p. I.A.l.b.Google Scholar

⁵ Cf. Dalton, H., Call Back Yesterday, (1953) 236Google Scholar.

⁶ 92 L.N.T.S. 362 (British Empire), 107 ibid., 461 (France). And see British Parliamentary Papers, Misc. No. 12 (1929), Cmd. 3452.

⁷ P.C.I.J., Ser. A/B, No. 41. Parallel to the abrupt and brutal end of the first period of the Permanent Court, the international codification effort sponsored by the League of Nations came to an end about the same time, after the Hague Codification Conference of 1930.

⁸ 217 U.N.T.S. 223.

⁹ Security Council resolution 22 (1947), 9 April. For the Corfu Channel case, see I.C.T. Reports 1947–48, p. 15; 1949, pp. 4, 237.

¹⁰ U.S. Senate, 69th Congress, 1st session, document No. 45.

¹¹ Minutes of the Conference of States Signatories of the Protocol of Signature of the Statute of the Permanent Court of International Justice, Geneva, 1–23 September 1926, Publications of the League of Nations, V.Legal.1926.V.26.

¹² Minutes of the Conference regarding the Revision of the Statute of the Permanent Court of International Justice and the Accession of the United States of America to the Protocol of Signature of that Statute, Geneva, 4–12 September 1929, League of Nations document C.514.M.173.1929.V.

¹³ U.S. Senate, 29 January 1935, 79 Cong. Ree. 1112–1147. The resolution failed to obtain the required two-thirds majority.

¹⁴ Cf. I.C.J. Reports 1951, p. 116 at 124.

¹⁵ See on this Feinberg, N., La Juridiction de la Cour permanente de Justice internationale dans le système de la Protection internationale des Minorités (Paris, Rousseau, 1931)Google Scholar. The quotation at the head of this essay is taken from the introduction to that important work.

¹⁶ See on this Feinberg, N., La Juridiction de la Cour permanente de Justice internationale dans le système des Mandats (Paris, Rousseau, 1930)Google Scholar. This and the previous work were later condensed and updated in Feinberg's, lectures at the Academy of International Law at The Hague entitled “La Juridiction et la jurisprudence de la Cour permanente de Justice internationale en matière de mandats et de minorités” in Recueil des Cours, vol. 59, p. 587 (1937–I)Google Scholar. That was Feinberg's second set of lectures at the Academy. The first was on petitions in 1932, and the third was on the admission of new members into the League of Nations and the United Nations in 1952. The Mandate for Palestine was the subject of interpretation by the Permanent Court in the Mavrommatis Concessions case, P.C.I.J., Ser. A, Nos. 2, 5 and 11 (1924, 1925, 1927). One result of that case was the preservation of an old Ottoman concession now held by the Electricity Company of East Jerusalem. Who could have envisaged in the 1920s that judgments of the Permanent Court would in the 1980s deprive the population of East Jerusalem of a satisfactory supply of electricity? Feinberg's above-mentioned works on the mandates system were quoted extensively and influenced the decisions of the International Court of Justice in various cases, to be mentioned later, concerning South West Africa, especially on the question of locus standi in relation to the mandate. He also dealt with that issue in “The Function of the Permanent Court of International Justice in the Mandates System” in Some Problems of the Palestine Mandate (Tel Aviv, 1936) 95. That may represent a change in his views regarding the issue which became central in the South West Africa cases.

¹⁷ Hudson, M.O., International Tribunals, Past and Future (Washington, D.C., Carnegie Endowment for International Peace, 1944) 328Google Scholar.

¹⁸ One of these cases found its way to the Supreme Court of Israel sitting as the High Court of Justice. Steinberg et al. v. the Custodian of German Property (1957) ll(i) P.D. 426; 24 I.L.R. 771.

¹⁹ Churchill, W., The Second World War (London, Cassell and Co., 1952) vol. V, p. 251Google Scholar.

²⁰ On the euphoria attending parliamentary ratification of the Charter of the United Nations, see the incisive article of Franck, T., “Great Expectations: An Exploration of the Exaggerated Hopes Aroused by the U.S. Campaign for Ratification of the Charter” in Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn, Buergenthal, T. (ed.), (1984) 291Google Scholar. In this connection, it is instructive to compare the three sets of Hearings on the International Court of Justice in the Committee on Foreign Relations of the United States Senate in 1946 (79th Congress, 2nd session) on S. Res. 196, in 1960 (86th Congress, 2nd session) on S. Res. 94, and in 1973 (93rd Congress, 1st session) on S. Res. 74–78. For the later report of the State Department, see Digest of United States Practice in International Law 1976 (State Department Publication 9808, 1977) 650.

²¹ South West Africa (Status) advisory opinion, I.C.J. Reports, 1950, p. 128; South West Africa (voting procedure) advisory opinion, ib., 1955, p. 67; South West Africa (hearings of petitioners) advisory opinion, ib., 1956, p. 23; South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), ib., 1962, p. 319; 1966, p. 6; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) advisory opinion, ib., 1971, pp. 3, 6, 9,12, 16.

²² Reparation for Injuries Suffered in the Service of the United Nations advisory opinion, I.C.J. Reports 1949, p. 174; French Nationals in Egypt (France v. Egypt), ib., 1950, p. 59; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt advisory opinion, ib., 1980, p. 73. Other aspects of the broader Middle East situation have come before the Court, notably in connection with Iran, the Anglo-Iranian Oil Co. case (United Kingdom v. Iran), ib., 1951, p. 89; 1952, p. 93; U.S. Diplomatic and Consular Staff in Tehran, (United States v. Iran), ib., 1979, p. 7; 1980, p. 3; 1981, p. 45. A major case relating to what is now known as Iraq (the implications of which are still partly felt) came before the Permanent Court ostensibly as a question of the procedure of the League Council. Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne advisory opinion, P.C.I.J., Ser. B, No. 12 (1925).

²³ Right of Passage case (Portugal v. India), I.C.J. Reports 1957, p. 125; 1960, p. 6; Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ib., 1972, p. 46; Trial of Pakistani Prisoners of War (Pakistan v. India), ibid., 1973, p. 328.

²⁴ In addition to the cases mentioned in nn. 21 and 23 supra, see also Electricité de Beyrouth (France v. Lebanon), I.C.J. Reports 1954, p. 107; Compagnie du Port, des Quais et des Entrepôts de Beyrouth et Société Radio-Orient (France v. Lebanon), ibid., 1960, p. 186, Northern Cameroons (Cameroon v. United Kingdom), ibid., 1963, p. 15; Western Sahara advisory opinion, ibid., 1975, pp. 6, 12; and some aspects of the following: Temple of Preach Vihear (Cambodia v. Thailand), ibid., 1962, p. 6; Libya/Tunisia Continental Self, ibid., 1981, p. 3; 1982, p. 18; Libya/Malta Continental Shelf, Ibid., 1984, p. 3; 1985, p. 13; Frontier Dispute (Burkina Faso/Mali), pending.

²⁵ Monetary Gold from Rome, (Italy v. France, United Kingdom and United States), ibid., 1954, p. 19 (and see the arbitral award of 1953 in XII Reports of International Arbitral Awards p. 19); Nottebohm (Liechtenstein v. Guatemala), ibid., 1953, p. 111; 1955, p. 4; Interhandel (Switzerland v. United States), ibid., 1957, p. 105; 1959, p. 6.

²⁶ Ibid., 1950, pp. 65, 221. This runs in parallel with the refusal of the Economic and Social Council in 1947 to request an advisory opinion on the survival of the pre-War Minorities Treaties and declarations, and instead to refer the question to the Secretariat. See Pomerance, M., The Advisory Function of the International Court in the League and U.N. Eras (John Hopkins U.P., Baltimore, 1973) 221Google Scholar. The Secretariat's study (1950, 1951, E/CN.4/367 & Add. 1) was subject to devastating criticism inter alia by Feinberg, , “The Legal Validity of the Undertakings Concerning Minorities and the Clausula Rebus sic Stantibus”, in Scripta Hierosolymitana (Jerusalem, Magnes Press, 1958) vol. V, p. 95Google Scholar, and reproduced in his Studies in International Law, (Jerusalem, Magnes Press, 1979) 17. It is less known that the International Law Commission did not endorse the Secretariat's conclusions. See Note in (1982) 12 Is. Yrbk. on Human Rights 330.

²⁷ North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; FRG/Netherlands) I.C.J. Reports 1969, p. 3.

²⁸ For the Cod-War cases, entitled Fisheries Jurisdiction (United Kingdom v. Iceland; FRG v. Iceland), see ibid., 1972, pp. 17, 35, 184, 191; 1973, pp. 3, 49, 302, 313; 1974, pp. 3, 175.

²⁹ See supra n. 22. However, the central issue was not argued adversarially before the Court.

³⁰ Conditions of Admission of a Stale to Membership in the United Nations (Article 4 of the Charter) advisory opinion, I.C.J. Reports 1947–48, p. 57: Competence of the General Assembly for the Admission of a State to the United Nations advisory opinion, ibid., 1950, p. 4.

³¹ Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) advisory opinion, ibid., 1962, p. 151.

³² This phenomenon first appeared in the present Court in the third phase of the Corfu Channel case (supra n. 9) and in the first phase of Nottebohm (supra n. 25). It has since become more general, as in Fisheries Jurisdiction (supra n. 28); Nuclear Tests (Australia v. France, New Zealand v. France), I.C.J. Reports 1973, pp. 99, 135; 1974, pp. 253, 457; Trial of Pakistani Prisoners of War (supra n. 23); Aegean Sea Continental Shelf (Greece v. Turkey), ibid., 1976, p. 3; 1978, p. 3; United States Diplomatic and Consular Staff in Tehran (supra n. 22). On 18 January 1985 the United States announced that it would not take part in further proceedings in the case brought against it by Nicaragua, I.C.J. Reports 1985, p. 3. On this new phenomenon, see Elkind, J.B., Non-Appearance before the International Court of Justice (Dordrecht, Nijhoff, 1984)Google Scholar; Thirlway, H.W.A., Non-Appearance before the International Court of Justice (1985)Google Scholar.

³³ Three major instances of political pressures relating to the Court may be noted: 1) It was widely believed at the time that the non-election of Judge Charles de Visscher to a second term in the election of 1951 was due to dissatisfaction in certain circles at the position he had adopted in the provisional measures phase that year in the Anglo-Iranian Oil Co. case (supra n. 22). As Hudson, M.O. discreetly wrote in “The Thirtieth Year of the World Court”, (1952) 46 Am. J. Int'l L. 39CrossRefGoogle Scholar: “Appraising the results of the…election…one is impelled to ask whether political considerations did not prevail over any desire to strengthen the Court.” This non-election dismayed professional circles such as the Institute of International Law, which made a vain attempt to depoliticize the elections in its Sienna Session of 1952 (Annuaire de l'Institut du Droit International, Session de Sienne, vol. 44, t. II). 2)Google Scholar After the 1966 judgment in the South West Africa cases (supra n. 21), many Governments expressly dissociated themselves from any political implications which might be attributed to them through the positions taken in the Court by which they feared might be attributed to them through the positions taken in the Court by judges of their nationality, and explained that they took no responsibility for the opinions of Members of the Court, who were elected as individuals and not as representatives of their Governments. That is in full conformity with the letter and the spirit of Article 2 of the Statute. However, the Polish Government went much further and specifically dissociated itself from Judge Winiarski's opinion (Judge Winiarski was with the majority in that case: he made no individual opinion of his own in 1966, but he had done so in 1962). Polish Ministry for Foreign Affairs, Press Release of 21 July 1966, summarized in Keesing's Contemporary Archives, (1966) vol. XV, p. 21557A. This incident is largely ignored in the literature (a notable exception is Prott, L.V., The Latent Power of Culture and the International Judge (Abingdon, Professional Books, 1979) 26)Google Scholar, but viewed in retrospect, this unprecedented action of the Government is seen to have had a devastating effect on the Court. 3) On 28 December 1984 the then President of the Court, Judge Elias, gave an interview to an Associated Press correspondent, Roland de Ligny, in which he was highly critical of the position taken by the United States in the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States), then pending before the Court, and on other foreign policy matters. On that case, see I.C.J. Reports 1984, pp. 169, 215, 392; 1985, p. 3 (pending). Public comment on a pending case by any judge, let alone the President, is absolutely unprecedented and contrary to all standards of judicial propriety (the text of the interview is in the author's personal archives). That interview, which was given before the United States announced its intention not to participate in further proceedings (see supra n. 32), and indeed may have precipitated it, was reported in the Press. See for instance Mexico City, The News, vol. XXXV, No. 173, 28 December 1984. The rapidity with which that publication was made has not passed unnoticed. In that conection, Judge Elias' conduct of the case as President was publicly criticized in individual opinions of judges, also something unprecedented. See I.C.J. Reports 1984 at pp. 221, 232, 472, 513.

³⁴ G.A. Res. 1361 (XVI), 17 November 1959, on legal action to ensure fulfilment of the obligations assumed by the Union of South Africa in respect of the Territory of South Africa.

³⁵ Judge Bustamante y Rivero. See his letter in the Geneva newspaper La Suisse, 20 July 1966. Reproduced in (1967) 70 Revue générale de Droit international public 873.

³⁶ Judge Sir Zafrulla Khan. See Slonim, S., South West Africa and the U.N.: An International Mandate in Dispute (Baltimore, John Hopkins U.P., 1973) 281Google Scholar, note 8. To the literature there mentioned, and the London Times, 22 July 1966, the London Observer, 31 July 1966, the Nieuwe Rotterdamse Courant, 2 and 5 August 1966, and (1966) 21 The Pakistan Horizon 322. Rule 34 of the 1978 Rules of Court is designed to avoid a repetition of this kind of incident.

³⁷ Judge A.H. Badawi, died 4 August 1965.

³⁸ See the statement of the representative of Guinea in U.N. GAOR, 21st session, 1456th meeting, para. 30 (2 November 1966, A/PV. 1456).

³⁹ G.A. Res. 2145 (XXI), 27 October 1966, on the question of South West Africa.

⁴⁰ The following cases, all advisory opinions, have come before the Court on this type of matter: Effect of Awards of Compensation made by the United Nations Administrative Tribunal (hereafter UNAT), I.C.J. Reports 1954, p. 47; Judgments of the Administrative Tribunal of the ILO upon Complaints made against Unesco, ib., 1956, p. 77; Application for Review of Judgment [sic] No. 158 of UNAT, ib., 1973, p. 166; Application for Review of Judgment No. 273 of UNAT, ib., 1982, p. 325; Application for Review of Judgment No. 333 of UNAT, (pending). Knowledge of the Staff Regulations of the United Nations and its related bodies is not one of the qualifications required of Judges by Article 2 of the Statute.

⁴¹ See supra n. 24.

⁴² See the WHO case in supra n. 22.

⁴³ See the Anglo-Norwegian Fisheries, North Sea Continental Shelf, Fisheries Jurisdiction, Aegean Sea Continental Shelf, Libya/Tunisia Continental Shelf, Libya/Malta Continental Shelf and Gulf of Maine Delimitation cases (supra nn. 14, 24, 28, 32). For the Gulf of Maine Delimitation case (Canada/United States), see I.C.J. Reports 1982, pp. 3, 15; 1984, pp. 165, 246. The major arbitration is the English Channel Continental Shelf case (France/United Kingdom) (1977, 1978), XVIII Reports of International Arbitral Awards, pp. 3, 271. A dispute between Dubai and Sharjah, two units of the United Arab Emirates, was decided by an international arbitration in 1981, but its award has not been made public. Another such dispute between Guinea and Guinea-Bissau was decided on 14 February 1985 by an arbitral tribunal consisting of three judges of the Court. The major instance of conciliation is the Jan Mayen Continental Shelf case (Iceland/Norway, 1981), 62 I.L.R. 108. Here the three conciliators were all the Heads of their Delegations at the Third United Nations Conference of the Law of the Sea. An international commission of enquiry, using the facilities of the Permanent Court of Arbitration examined the Red Crusader case (Denmark/United Kingdom, 1962), 35 I.L.R. 485.

⁴⁴ See supra n. 33. For modern treatment of this issue, see Oellers-Frahm, K., Die einstweilige Anordnung in der internationalen Gerichtsbarkeit (Berlin, Springer, 1975)CrossRefGoogle Scholar; Elkind, J.B., Interim Protection—A Functional Approach (The Hague, Nijhoff, 1981)Google Scholar; Stucki, J., Interim Measures in the Hague Court (Dordrecht, Kluwer, 1983)Google Scholar.

⁴⁵ Aegean Sea Continental Shelf case (supra n. 32). In the Permanent Court, cf. Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia (Italy/Turkey), P.C.I.J. Ser. A, No. 51 (1933).

⁴⁶ See supra n. 43.

⁴⁷ An outstanding instance is the Guinea/Guinea-Bissau case, see supra n. 43. The unofficial communiqué issued by the Registry on 14 February 1985 was careful to point out that the “Arbitral Tribunal… is independent of the International Court of Justice although its [the Tribunal's] three Members are also Members of the latter Court.”

⁴⁸ For the Beagle Channel case, see 52 I.L.R. 93. For the Treaty of Peace and Friendship between Argentina and Chile, 18 October 1984, resulting from the mediation, see (1985) 24 International Legal Materials 1.

⁴⁹ German Secular Property in Israel case (FRG/Israel, 1962), XVI Reports of International Arbitral Awards, p. 1. Attempts to depict the issues pleaded in that case are unauthorized and misconceived. Cf. O'Connell, D.P., State Succession in Municipal Law and International Law (Cambridge U.P., 1967) vol. I, Internal Relations, 287Google Scholar. We would also express reservations at the treatment of that case in Bernhardt, (ed.). Encyclopedia of Public International Law (Amsterdam, North Holland Publ. Co., 1981) Instalment 2, p. 117Google Scholar.

⁵⁰ Interventions were attempted in the two Libyan Continental Shelf cases and in the Nicaragua v. United States case, supra nn. 24, 33. For modern treatment of this issue, see Fritzemeyer, W., Die Intervention vor dem Internationalen Gerichtshof (Baden-Baden, Nomos, 1984)Google Scholar.

⁵¹ See G.A. Res. 171 (II), 14 November 1947, on the need for greater use by the United Nations and its Organs of the International Court of Justice; Res. 2625 (XXV), 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations; Res. 3232 (XXIX), 12 November 1974, Review of the Role of the International Court of Justice; Res. 37/10, 15 November 1982, Peaceful Settlement of Disputes and the Manila Declaration on the Peaceful Settlement of International Disputes.

⁵² Most of the documentation on this has not yet been published and exists in mimeographed form only. See Informal Doc. SD/1, 11 May 1978, informal suggestion by the Netherlands and Switzerland, and the Note by the President (unnumbered), 5 June 1979, paras. 10–12. Copies on file in the author's personal archives. An allusion to this appears in the report of the President of the Conference on the settlement of disputes, Doc. A/CONF. 62/L. 95, paras. 5–6, Third United Nations Conference on the Law of the Sea, Official Records, vol. XII.

⁵³ On Jewish and Israeli concern with the Court, see “The International Court at Fifty”, (1972) 7 Is.L.R. 175.

⁵⁴ Text ia Institute of Jewish Affairs (London), Research Report No. 19, December 1982. The World Jewish Congress is the lineal successor of the Comité des Délégations juives auprès de la Conférence de la Paix of 1919. On this see, inter alia, Feinberg, , La Question des Minorités à la Conférence de la Paix de 1919–1920 et l'Action juive en faveur de la Protection internationale des Minorités (Paris, Rousseau, 1929)Google Scholar and his “The Committee of Jewish Delegations, 1919–1936” in Studies in International Law, supra n. 26 at 311.