1. See, e.g., Article 14 of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal 1971, 974 U.N.T.S. 177. This article will not consider specifically the problem of where the jurisdiction of the Court arises only after attempts to settle the dispute by negotiation or by arbitration (or by both) have not been successful. The Court seems to have regarded as a question of fact the issue whether negotiations to settle a current dispute, including negotiations to organize an arbitration procedure, have been exhausted or not.

2. See V. Coussirat-Coustère and P.M. Eisemann, III Repertory of International Arbitral Jurisprudence xxv (1991).

3. See Recueil des Decisions des Tribunaux Arbitraux Mixtes, 10 volumes, 1922–1930.

4. See XIII, XIV and XVI U.N.R.I.A.A., passim.

5. XIV U.N.R.I.A.A. 449.

6. See Iran-United States Claims Tribunal Reports, 27 volumes to date.

7. For an instance of this in the Permanent Court, see the Société Commerciale de Belgique case, 1939 P.C.I.J. Rep. (Ser. A/B, No. 78), at 50. On the basis of the title of jurisdiction the Court found that since the arbitral awards were Final and without appeal, and since the Court had no mandate from the parties with regard to them, “it can neither confirm nor annul them either in whole or in part” (at 179). It did, however, find that the awards were “definitive and obligatory” (at 179). This gave rise to the Socobel v. The Greek State case in the Belgian Courts (1951), 181.L.R. 3. On this type of arbitration, see further, in particular, S.M. Schwebel, International Arbitration: Three Salient Problems (1987); S.J. Toope, Mixed International Arbitration (1990). On the extra-judicial function, see Sh. Rosenne, The Law and Practice of the International Court 633 (1965,1985).

8. 205 Consolidated Treaty Series 233.

9. These include the Appeals from Certain Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case, 1933 P.C.I.J. Rep. (Ser. A/B No. 56); Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal, The Peter Pázmány University case, 1933 P.C.I.J. Rep. (Ser. A/ B, No. 61); Pajzs, Csáky, Esterházy case, 1936 P.C.I.J. Rep. (Ser. A/B, Nos. 66, 68) (appeal from a judgment of the Hungaro-Yugoslav Mixed Arbitral Tribunal).

10. 1950 I.C.J. Rep. 65, 221 (second phase).

11. 1952 I.C.J. Rep. 28 (Preliminary Objections), 1953 I.C.J. Rep. 10 (merits). For the final arbitral award, see XII U.N.R.I.A.A. 91.

12. 1960 I.C.J. Rep. 192. For the award of 1906, see XI U.N.R.I.A.A. 111.

13. 1988 I.C.J. Rep. 12.

14. 1991 I.C.J. Rep. 53. For the Award of July 31, 1989, see 94 RGDIP 204 (1990); English translation in83 I.L.R. 1.

15. 1972 I.C.J. Rep. 46.

16. Article 36 of the Treaty of Peace with Bulgaria; Article 40 of the Treaty with Hungary; Article 38 of the Treaty with Romania. On the nature of these clauses, see G.G. Fitzmaurice, The Juridical Clauses of the Peace Treaties, Academy of International Law, 73 Recueil des Cours, at 259,362 (1947). The author explained that the articles of the treaties providing forthe supervision of theirexecution and the settlement of disputes “may present a good many difficulties or ambiguities of legal interpretation”.

17. 1950 I.C.J. Rep. 65.

18. 1923 P.C.I.J. Rep. (Ser. B, No. 5).

19. 1950 I.C.J. Rep. 221.

20. 1952 I.C.J. Rep. 28, at 44.

21. 1953 I.C.J. Rep. at 17–19.

22. 1924 P.C.I.J. Rep. (Ser. A, No. 2), at 11.

23. 1962 I.C.J. Rep. 319, at 328.

24. 1963 I.C.J. Rep. 15, at 27.

25. 1988 I.C.J. Rep. 12. This notwithstanding, the United States Court had the last word in settling this dispute. See United States v. The Palestine Liberation Organization and Others, 695 Fed. Supp. 1456 (Southern District New York, 1988). The Court declined to follow the advisory opinion and held that it should decide thequestion solely by reference to United States law. It went on to hold that the United States legislation did not require the closing of the office of the Permanent Observer Mission in New York. In that way the matter was finally settled.

26. 1960 I.C.J. Rep. 192, at 214.

27. Id., 216.

28. This corresponds to the Court's own practice. Article 9 of the Resolution concerning the Internal Judicial Practice of the Court of April 12, 1976 and Articles 94 and 107 of the Rules of Court distinguish between the adoption of a judgment or advisory opinion, and its being read in open Court. For that resolution, see Sh. Rosenne, Documents on the International Court of Justice 441 (1st bilingual ed., 1991). The judgments of the European Court of Human Rights as a matter of course indicate when the judgment was adopted and when it was read in open Court or otherwise published.

29. Appeals from Certain Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case, supra note 9.

30. 1933 P.C.I J. Rep. (Ser. A/B, No. 61), at 221.

31. Supra note 9.

32. 1972 I.C.J. Rep. 46.

33. 15 U.N.T.S. 295. For the current version containing all the amendments, see ICAO Doc. 7300/6 (1980).

34. By virtue of Article 37 of the Statute of the International Court of Justice, that Court now replaces the Permanent Court of International Justice in this provision. For the Rules of the ICAO Council for the Settlement of Differences, see ICAO Doc. 7782/2 (1975). Reproduced in K. Oellers-Frahm and N. Wühler, Dispute Settlement in Public International Law: Texts and Materials 489 (1984).

35. 84 U.N.T.S. 389. The Council's Rules for the Settlement of Disputes contained a section dealing with these complaints, see previous note.

36. This was introduced in the Rules of Court of 1936 as Article 67; repeated in the Rules of 1946, Article 67; Rules of 1972, Article 72.

37. In this connection it may be noted that by Article 102, Paragraph 2, of the Rules regarding advisory proceedings, the Court “shall also be guided by the provisions of the Statute and of these Rules which apply in contentious cases to the extent to which it recognizes them to be applicable”.

38. This provision was invoked once, in connection with the non-compliance by Bulgaria with the arbitral award in the Central Rhodopia Forests case. For that award, see 3 U.N.R.I.A.A. 1371 (1933); 7 Annual Digest and Reports of International Law Cases 91. For the action of the Council of the League, see League of Nations, Official Journal, 15th year 1432, at 1477 (1934).

39. Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc., 887 F.2d 1357 (9th Circuit, 1989); certiorari denied, 110 S.Ct. 1319 (1990); 969 F.2d 764 (9th Circuit 1992). On the New York Convention, see 330 U.N.T.S. 3. This is to be contrasted with the attempt to enforce judgment in the Military and Paramilitary Activities in and against Nicaragua case through the United States Courts. See Committee of United States Citizens living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Circuit, 1988).

40. On this, see 4 Iran-U.S. Claims Tribunal Reports 299; 5 id., 405; further in Iran-US Claims Tribunal, Annual Report for the Period Ending June 30, 1992 (1992), at 11.

41. The same approach is seen in the advisory opinions of the present Court in the Applications to review judgments of the United Nations Administrative Tribunal. In no case has a decision of that Tribunal been found to be defective.

42. The view that control is a necessary component of the arbitral process has been forcefully expounded in W.M. Reisman, Systems of Control in International Adjudication and Arbitration (1992).

43. For this reason, concern must be expressed at the attitude adopted by the Chamber of the International Court deciding the Land, Island and Maritime Delimitation Dispute between El Salvador and Honduras, Nicaragua intervening, with regard to the 1917 judgment of the Central American Court of Justice in the case of El Salvador v. Nicaragua regarding the Gulf of Fonseca. While it is a fact that one of the parties to that litigation rejected the judgment, nevertheless it remains that the judgment is equally in fact res judicata as between its parties. Nevertheless, the Chamber included in its judgment the statement that “It does not appear […] that this Chamber is required now to pronounce upon whether the 1917 Judgement is res judicata between the parties to it […]”. 1992 I.C.J. Rep. 351,600 (Para 402). The Chamber saw that judgment as a ‘subsidiary’ source of the law within the meaning of Article 38, Paragraph 1 (d), of the Statute of the Court. This can be taken as throwing doubt on the force of the res judicata of a judgment of a competent judicial organ delivered in 1917. For that case, see VI Anales de la Corte de Justicia Centroamericana, Nos. 16–18, 96(1917). For an English translation, accepted by all concerned in the 1992 case, see 11 AJIL 674 (1917).

44. 1981 I.C.J. Rep. 45. For the Algiers Declarations, see I Iran-US Claims Tribunal Reports 3.

45. It is thus significant, and healthy, that in appropriate cases Members of the Court have agreed and have been permitted by the Court to act as arbitrators. This practice is as old as the Permanent Court: Judges Viscount Finlay, Guerrero and Huber and Deputy Judge Beichmann at one time or another served as arbitrator. In the present Court all the arbitrators in the Guinea-Guinea-Bissau Maritime Delimitation arbitration were Members of the Court of Arbitration. 89 RGDIP 484 (1985); 77 I.L.R. 635. In the later Guinea-Bissau v. Senegal Maritime Delimitation arbitration, among the arbitrators was one Member of the Court (94 RGDIP 204 (1990); 83 I.L.R. 1). There are, however, disadvantages in view of the development in recent years of the invocation of the International Court through some surprise acceptance of its jurisdiction, to control an arbitration process. The Member of the Court who was an arbitrator in the Guinea-Bissau v. Senegal arbitration had to recuse himself when the question of the validity of that award was unexpectedly brought before the Court in this manner. According to the latest Report of the Permanent Court of Arbitration, the following present Members of the Court are also Members of the Permanent Court of Arbitration: Judges Ago, Aguilar, Ajibola, Evensen, Guillaume, and Sir Robert Jennings. The late Judge Lachs was also a member of the PCA. See Permanent Court of Arbitration, 91 st Annual Report 1991, 22–42 (1992). The participation of former Members of the Court in international arbitration proceedings is also a healthy development.