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The International Court of Justice: Three Recent Decisions
Published online by Cambridge University Press: 21 May 2009
Extract
Following my earlier survey of the case law of the International Court of Justice during its first seven years of existence, I now propose to discuss in more detail three of its recent findings, comprising two Advisory Opinions and one Judgement, which I combine under this single heading, not on account of any unity of subject, but simply because they are the last decisions which I intend to analyse for the time being and because they have at least this in common that in all three cases the finding of the Court has been determined not so much by positive texts or by fixed rules of customary law as by legal considerations of a very general nature. I allude to the following cases in chronological order:
Advisory Opinion of July 13th, 1954 on the effects of awards of compensation made by the United Nations Administrative Tribunal;
Judgement of April 6th, 1955 in the Nottebohm case (Liechtenstein v. Guatemala), second phase;
Advisory Opinion of June 7th, 1955 regarding the voting procedure on questions relating to reports and petitions concerning the Territory of South-West Africa.
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References
page 25 note 1 Sept années de jurisprudence de la Cour internationale de Justice, this Review, Vol. II (1955), p. 127.
page 25 note 2 Advisory Opinion, 07 13th, 1954: I.C.J. Reports 1954, p. 47.Google Scholar
page 27 note 1 The Court has taken special pains in emphasising that the General Assembly by “right” must have meant a legal right (p. 51 of the “Reports”). One is inclined to ask what else the General Assembly could have meant in using the word “right” in a Request for an Advisory Opinion of the Court: a moral, a political, a philosophical right?
page 27 note 2 I have, of course, not included here the possibility of an accusation of bribery, unworthy of a Tribunal set up by the United Nations, though well known from certain cases having occurred in the history of international arbitration.
page 28 note 1 Compare the Orinoco Steamship Company case between the U.S.A. and Venezuela decided in 1904 by the Netherlands umpire Dr. Barge, but subsequently (1909) submitted again to arbitration by a three-member tribunal chosen from the Permanent Court of Arbitration, — the Chamizal district case of 1910/1911 between the U.S.A. and Mexico (see de Martens, Nouveau Recueil Général de Traités, Sèae série, t.VI, p. 66 et ss., in particular p. 106) and another case which came up before the Permanent Court of Arbitration in 1921 between the U.S.A. and Norway (see the annex to the Protocols of the Tribunal about the incident on October 13th, 1922).
page 33 note 1 Comp. Article XII of the Statute of the Administrative Tribunal concerned.
page 33 note 2 Judgement of April 6th, 1955: I.C.J. Reports 1955, p.4.
page 33 note 3 Comp. Nottebohm case (preliminary objection), Judgement of November 18th, 1953: I.C.J. Reports 1953, p. 111.
page 35 note 1 Judgment of July 1st, 1952, I.C.J. Reports 1952, p. 45Google Scholar: “The point raised here has not yet been fully argued by the Parties, and cannot, therefore, be decided at this stage.”
page 36 note 1 See in particular the dissenting opinion by MrErich, , p. 49.Google Scholar
page 40 note 1 Advisory Opinion of June 7th, 1955: I.C.J. Reports 1955, p. 67.Google Scholar
page 40 note 2 Territorial Controversies before the International Court of Justice, A. The International Status of South-West Africa.
page 42 note 1 Article 18, paragraphs 2 and 3, run as follows:
“2. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: …. questions relating to the operation of the trusteeship system….
3. Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting”.
page 43 note 1 In his separate opinion Judge Lauterpacht took the opportunity of stating that “the place assigned to periodic missions or to petitions in the System of Trusteeship exceeds the degree of supervision adopted in the Mandates System and that that means of supervision by the United Nations cannot, without the consent of the Government of the Union of South Africa, be applied in the Mandated Territory of South-West Africa” (p. 94).
page 46 note 1 “There is no ordinary and natural meaning of the term “degree of supervision” in the abstract. Its meaning is not something which appears on the surface.” (p. 95).
page 49 note 1 A two-thirds—or a (simple)—majority vote of the members of the General Assembly in Article 109 of the Charter is obviously something different from a two-thirds—or a (simple) — majority vote of the members present and voting in Article 18.
page 49 note 2 Publications of the Permanent Court of International Justice, series B, no. 12, p. 32 and 33.
page 51 note 1 In the words of Judge Lauterpacht: “It is, of course, possible that the question of voting was not before the mind of the Court when it gave the Opinion in 1950. This does not mean that the procedure of voting is not an essential element in the situation. On the contrary, 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” (p. 96).