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The International Court at Fifty
Published online by Cambridge University Press: 12 February 2016
Extract
The Permanent Court of International Justice was inaugurated on January 30, 1922. The present International Court of Justice held its inaugural meeting on April 18, 1946—the day on which the League of Nations formally ceased to exist. Measured in terms of “business”, the present Court has become a disappointment, and at the beginning of 1970 it had no pending cases on its docket. Today it has one. This situation of decline, which in fact had been evolving ever since the thirties, formed the subject of an important speech by the U.S. Secretary of State on April 25, 1970; it was also commented upon by Secretary-General U Thant in the Introduction to his annual report on the work of the organization submitted to the twenty-fifth session of the United Nations General Assembly. Following this, twelve member States initiated a debate on a new agenda item entitled: “Review of the role of the International Court of Justice”. This debate led to an interim decision inviting the Secretary-General to submit to the next session a comprehensive report, to be based on the replies of States to a questionnaire which he was asked to prepare and circulate.
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References
1 (1970) 64 Proceedings of the American Society of International Law 286. The importance which the United States attached to this matter is illustrated by the fact that in the following discussion in the General Assembly, the presentation of its position was made by Senator Jacob Javits. See his statements at the 1211 th meeting of the Sixth (Legal) Committee and at the 1931st plenary meeting, on October 29, and December 15, 1970.
2 Official Records of the General Assembly, twenty-fifth session, Supplement 1A (A/8001/Add.1).
3 Official Records of the General Assembly, twenty-fifth session, agenda item 96 (A/8042 and Add. 1 and 2). The States were: Argentina, Australia, Canada, Finland, Italy, Ivory Coast, Japan, Liberia, Mexico, United Kingdom, U.S.A. and Uruguay. Australia had initiated a similar debate as far back as 1947.
4 General Assembly resolution 2723 (XXV), December 15, 1970.
5 Official Records of the General Assembly, twenty-sixth session, agenda item 90 (A/8382 and Add. 1–4).
6 Loc. cit. in previous note. The General Assembly postponed further action until 1972. See resolution 2818 (XXVI), December 15, 1971.
7 The statement was made at the 1278th meeting of the Sixth Committee, November 10, 1971. The Official Records contain only a summary of that statement.
8 Mavrommatis Palestine Concessions, judgments of August 30, 1924 and March 26, 1925; Case of the Readaptation of the Mavrommatis Jerusalem Concessions (jurisdiction), judgment of October 10, 1927. Series A., Nos. 2, 4 and 11. In the course of these judgments, important statements were made regarding the juridical qualifi cation of the Jewish National Home in Palestine, and regarding the status of the Jewish Agency for Palestine.
9 I have received a copy of this opinion from the Lauterpacht archives in Cambridge through the courtesy of Mr. Elihu Lauterpacht, Q.C. The file copy is itself undated, but from registered mail receipts in the file it appears to have been sent to Jerusalem in duplicate, once before and once just after the outbreak of the War in 1939. Correspondence with the Central Zionist Archives in Jerusalem has so far failed to reveal the whereabouts of the original of this important opinion.
10 See Permanent Mandates Commission, Minutes of the 36th Session (1939) at 273. League of Nations document C.170.M.100.1939.VI.
11 Letters from I. J. Linton, then of the London Office of the Political Department of the Jewish Agency, to Sir Hersch, of August 2, and 4, 1939. Copies received from the Lauterpacht archives in Cambridge. The Central Zionist Archives have intimated that they have no further knowledge of this. Letter No. 2616/5/
dated September 7, 1971, Heymann to Rosenne.
12 I.C.J. Reports 1949 at 174.
13 In an interlocutory order of December 17, 1948 the Court envisaged that “all States entitled to appear before the Court” could participate in the proceedings. Israel was not then a member of the United Nations; moreover the resolution requesting the opinion referred ambivalently to “an international claim against the responsible de jure or de facto government”. It can now be stated that the question of participating in those Court proceedings was considered at the time in the Ministry for Foreign Affairs, although it was not clear whether Israel (or Jordan, for that matter, another potential respondent) came within the category of States entitled to appear before the Court. For the order, see I.C.J. Reports 1948 at 121.
14 I.C.J. Reports 1950 at 59.
15 Id., 1951 at 15.
16 United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference (A/CONF.39/11/Add.1) at 289 (A/CONF.39/27).
17 I.C.J. Reports 1959 at 127. For the subsequent withdrawal of the other two cases, see Ibid., at 206 and 283. The decision was in fact reversed in the judgment of May 26, 1961 in the Temple of Preah Vihear case. I.C.J. Reports 1961 at 17.
18 I.C.J. Reports 1962 at 151.
19 See Meron, , “Israel's Acceptance of the Compulsory Jurisdiction of the International Court of Justice” (1969) 4 Is.L.R. 307.Google Scholar
20 For details see our The Law and Practice of the International Court (1965), vol. II at 665 (General Assembly) and 668 (Security Council). For fuller examination of this, in its political context, see our article “Directions for a Middle East Settlement—Some Underlying Issues” in Halderman, John W. (editor), The Middle East Crisis: Test of International Law (New York, 1969) 45Google Scholar (originally published in Law and Contemporary Problems, Duke University Law School, Winter, 1968).