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INTERNATIONAL LEGAL PROBLEMS

Cases Before International Court of Justice

CORFU CHANNEL CASE

On March 25, 1948, the International Court of Justice gave judgment on the preliminary objection raised by Albania in the Corfu Channel case.

The case arose out of the fact that on October 22, 1946, two British destroyers struck mines in Albanian territorial waters in the Corfu Channel. The explosions caused damage to the vessels and loss of life. A reference to the Security Council by the United Kingdom resulted in a recommendation by that body, on April 9, 1947, that the parties to the dispute refer the matter to the Court. On May 22, 1947, the United Kingdom filed an application with the Court, and by a letter of July 2, 1947, filed with the Registry of the Court, Albania indicated readiness to appear. Dates fixed for the filing of a memorial by the United Kingdom and of a countermemorial by Albania were October 1 and December 10, 1947, respectively. Within the time limit fixed for the latter, Albania submitted a “preliminary objection to the application on the ground of inadmissibility". Albania requested the Court (a) to place on record that in accepting the Security Council's recommendation of April 9, 1947, Albania had only undertaken to submit the dispute to the Court in accordance with the Statute, and (b) to give judgment that the application of the United Kingdom was inadmissible as "the case must be brought before the Court by the notification of the special agreement, and not by an application”.

The Court duly placed on record, as requested by the Government of Albania, that the obligation incumbent upon that Government to refer the dispute to the Court, as a result of its acceptance of the Security Council's recommendation, could only be carried out in accordance with the Statute. It was pointed out in the judgment, however, that the Government of Albania had subsequently contracted other obligations. The Court did not consider that it was necessary to express an opinion on the contention of the United Kingdom that in all the circumstances there existed a case of compulsory jurisdiction. Rather, the Court held that the Albanian letter of July 2, 1947, constituted a voluntary acceptance of the Court's jurisdiction; it re

moved, it was held, all difficulties as to the admissibility of the application and as to jurisdiction. When the Albanian Government stated in its letter of July 2 that it was prepared, notwithstanding the “irregularity in the action taken by the Government of the United Kingdom, to appear before the Court", it was clear, the Court held, that it waived the right to raise an objection to admissibility; when the Albanian Government expressly referred to “its acceptance of the Court's jurisdiction for this case”, these words, the Court held, constituted a voluntary and indisputable acceptance of the Court's jurisdiction. The Court also held that reservations contained in the letter were intended only to maintain a principle and to prevent the establishment of a precedent for the future.

The judgment was delivered by the 15 judges of the Court, together with Dr. Igor Daxner, who was appointed judge ad hoc by the Albanian Government and who dissented. Judges Basdevant of France, Alvarez of Chile, Winiarski of Poland, Zoricic of Yugoslavia, de Visscher of Belgium, Badawi Pasha of Egypt, and Krylov of the Soviet Union, while agreeing with the judgment of the Court, appended a separate opinion.

The Court fixed the time limits for the subsequent pleadings on the merits. The last of these time limits (the Albanian rejoinder) expired on September 20, 1948. Public hearings on the merits of the case began November 9, 1948, at The Hague.

ADVISORY OPINION ON MEMBERSHIP

QUALIFICATIONS On November 17, 1948, the General Assembly of the United Nations adopted a resolution requesting the International Court of Justice to give an advisory opinion on the following question:

“Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State ?"

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Article 3 of the Charter of the United Nations deals with original membership in the organization. Article 4 reads:

“1. Membership in the United Nations is open to all other peaceloving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

“2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

In conformity with the Statute, the Registrar of the Court on December 12, 1947, gave notice that the Court was prepared to receive written statements in the matter before February 9, 1948. The Governments of 15 countries filed such statements. The Government of the United States in its statement, dated January 29, 1948, said:

“The Government of the United States, in harmony with the position taken by it in the United Nations, as is apparent from the official records, is of the view that the first paragraph of Article 4 of the Charter of the United Nations states all the qualifications required for membership in the United Nations. It seems clear that for a Member of the United Nations to make its vote, in the Security Council or in the General Assembly, on an application for membership dependent on conditions other than those set forth in Article 4, paragraph 1, would not be in accordance with the clear provisions of that Article. To make such a vote, while recognizing the conditions set forth in Article 4, paragraph 1, to be fulfilled by an applicant state, dependent upon the admission of other applicant states would, therefore, in this Government's judgment not be in accord with the Charter.”

On April 22, 23, and 24, 1948, the Court heard oral statements by a representative of the Secretary-General of the United Nations and by representatives of the Governments of France, Yugoslavia, Belgium, Czechoslovakia, and Poland. The United States did not participate in the oral statements.

On May 28, 1948, the Court gave its advisory opinion. It answered each question in the negative.

As to the first question, the Court stated it to be its view that “The requisite conditions are five in number: to be admitted to membership in the United Nations, an applicant must (1) be a State; (2) peaceloving; (3) accept the obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to do so", and that

“All these conditions are subject to the judgment of the Organization. The judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4, and, in the last analysis, that of its Members."

Further, the Court advised that states which fulfil the conditions stated have the "qualifications” requisite for admission. The conditions listed in article 4 (1), the Court said, “constitute an exhaustive enumeration”, and are not stated merely by way of “example”; are to be “regarded not merely as the necessary conditions, but also as the conditions which suffice”; are not to be regarded as “an indispensable minimum, in the sense that political considerations could be super-imposed upon them”; do not prevent an “appreciation” of “such circumstances of fact as would enable the existence of the requisite conditions to be verified”; and do not prevent “the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article".

As to the second question concerning "a demand on the part of a Member making its consent to the admission of an applicant dependent on the admission of other applicants”, the Court expressed the opinion that “such a demand clearly constitutes a new condition, since it is entirely unconnected with those prescribed in Article 4”. It was added that such a demand "makes admission dependent, not on the conditions required of applicants, qualifications which are supposed to be fulfilled, but on an extraneous consideration concerning States other than the applicant State”; that the provisions of Article 4 imply that every applicant for admission “should be examined and voted on separately and on its own merits”, as “otherwise it would be impossible to determine whether a particular applicant fulfills the necessary conditions"; that to subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State "would prevent Members from exercising their judgment in each case with complete liberty, within the scope of the prescribed conditions”; and that such a demand “is incompatible with the letter and spirit of Article 4 of the Charter”.

Judge Alvarez of Chile and Judge Azevedo of Brazil, while concurring in the opinion of the Court, appended a statement of their individual opinion. Of the members of the Court dissenting, Judge Basdevant of France, Winiarski of Poland, McNair of the United Kingdom, and Read of Canada appended a joint opinion, and Judges Zoricic of Yugoslavia and Krylov of the Soviet Union, separate dissenting opinions.

ADVISORY OPINION REQUESTED ON

REPARATIONS FOR INJURIES

The question of reparations for injuries suffered in the service of the United Nations was placed on the agenda of the Third Session of the General Assembly by the Secretary-General. In his report on this question dated October 7, 1948, the Secretary-General gave a history of particular cases and of the action taken by him. He also stated that though he had no doubt that the United Nations possessed the legal capacity to present a claim for reparations under international law against a state, he, nevertheless, felt that, before the necessary action could be taken for presenting such claims, a number of questions of law, policy, and procedure should be determined by the Assembly. He accordingly put forward the following questions for consideration by the Assembly:

(1) Whether, in the view of the Assembly, a state may have a responsibility as against the United Nations for injury to or death of an agent of the United Nations;

(2) What should be the general policy with respect to the reparation or measure of damages which should be claimed;

(3) What should be the procedure for the presentation and settlement of claims?

On December 3, 1948, the General Assembly on the recommendation of its Sixth (Legal) Committee by a resolution decided to submit the following legal questions to the International Court of Justice for an advisory opinion:

"I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto Government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?

“II. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national ?"

The resolution also instructs the Secretary-General after the Court has given its opinion to prepare proposals in the light of that opinion and to submit them to the Fourth Regular Session of the General Assembly.

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