American Foreign Policy, 1950-1955: Parts I-IX

days after the entry into force of the present Charter. Within the same period, the Governments of the Three Powers and the Federal Government shall agree upon the three neutral members. If, after the expiry of such period, one or more of the neutral members shall not have been appointed, either the Governments of the Three Powers or the Federal Government may request the President of the International Court of Justice to appoint such neutral member or members. 4. Appointments to fill vacancies shall be made in the same manner as the appointment of the permanent member to be replaced. However, if a vacancy to be filled by the Government of one of the Three Powers or the Federal Government is not so filled within one month of its occurring, either the Governments of the Three Powers or the Federal Government may request the President of the International Court of Justice to make an interim appointment to the vacancy of a person who shall not be a national of any State which participated in the War and who shall serve for a period of six months or until the vacancy is filled in the normal manner, whichever is longer. If the member to be replaced is a neutral member, the Governments of the Three Powers or the Federal Government may request the President of the International Court of Justice to make such appointment, if the agreement envisaged by sub-paragraph (c) of paragraph 2 of this Article has not been reached within one month of the vacancy occurring.

5. The Commission may, by majority vote, declare a vacancy if, in its opinion, a member has, without reasonable excuse, failed or refused to participate in the hearing or decision of a case to which he has been assigned.

6. The Government of any State which has acceded to the present Charter pursuant to Article 17 hereof may appoint a member adjoint by notification addressed to the Governments of the Three Powers and the Federal Government. Any such member adjoint shall meet the requirements specified in paragraph 1 and shall be subject to the provisions of paragraph 5 of this Article. The appointing Government may fill a vacancy by notification addressed to the Governments of the Three Powers and the Federal Government.

7. The Secretariat of the Arbitration Tribunal' shall serve the Commission as its administrative office.

ARTICLE 4

1. The permanent members shall be appointed for the duration of the Commission including the additional period provided for in paragraph 3 of Article 1 of the present Charter. Members adjoint may be appointed for shorter periods or for particular cases.

2. Members of the Commission shall not engage in any activity incompatible with the proper exercise of their duties, nor shall they participate in the adjudication of any case with which they have previously been concerned in another capacity or in which they have

1 See art. 6 of the charter of the Arbitral Tribunal, supra, p. 493.

a direct interest. Differences of opinion regarding the applicability of this paragraph shall be resolved by the Commission.

3. (a) During and after their terms of office, the members of the Commission shall enjoy immunity from suit in respect of acts performed in the exercise of their official duties.

(b) The members of the Commission who are not of German nationality shall, moreover, enjoy in the Federal territory the same privileges and immunities as are accorded members of diplomatic missions. If sittings or official acts take place in the territory of one of the Three Powers, the members of the Commission who are not of the nationality of the country in which the sitting or act takes place shall enjoy diplomatic privileges and immunities in such country.

4. Every member of the Commission shall, before taking office, make a declaration at a public session that he will exercise his duties impartially and conscientiously.

5. Subject to the provisions of paragraph 5 of Article 3 of the present Charter, no member may be dismissed before the expiry of his term of office, except by agreement between the Governments of the Three Powers and the Federal Government and,

(a) in the case of a member appointed by the Government of an acceding State, with the agreement of such Government;

(b) in the case of a member appointed by the President of the International Court of Justice, with the consent of its President. 6. Any member may at any time resign his office by giving due notice thereof under his hand to the appointing Government or Governments and to the President of the Commission. But he shall continue in office until his successor has taken his seat, unless the appointing Government or Governments and the President agree otherwise.

ARTICLE 5

1. The Commission shall elect its President from the three neutral members to serve for two years. The President shall be eligible for re-election. If the President shall cease to be a member of the Commission, the Commission shall elect a new President after his successor as a member of the Commission has been appointed. The remaining neutral members shall serve as Vice-Presidents.

2. The Commission, presided over by the President or one of the Vice-Presidents, shall sit either in plenary session or in Chambers of three members.

3. A plenary session shall, in principle, include all the permanent members of the Commission. A quorum of five members shall suffice to constitute a plenary session; it shall be composed of an uneven number of members, and in any case shall consist of an equal number of the members appointed by the Governments of the Three Powers and of those appointed by the Federal Government, and at least one neutral member. Members adjoint shall not take any part in a plenary session.

4. (a) Chambers shall be composed of one of the members appointed by the Governments of the Three Powers, one of the

members appointed by the Federal Government and one neutral member. The Commission in plenary session shall nominate the members of such Chambers, define the categories of cases with which a Chamber will be concerned or assign a particular case to a Chamber. Subject to the provisions of paragraph 5 of Article 13 of the present Charter, any decision of a Chamber, on a case assigned to it, shall be deemed to be a final decision of the Commission.

(b) In cases heard by Chambers where any of the parties is one of the Three Powers or its national or resident, the member appointed by the Government of such Power shall sit unless such party otherwise agrees.

(i) where any of the parties is one of the acceding States or its national or resident, the member appointed by the Government of one of the Three Powers shall be replaced by the member adjoint appointed by the Government of such acceding State upon the latter's application to the President;

(ii) where more than one of the parties are acceding States or nationals or residents of acceding States, such States, nationals or residents may agree to the replacement of the member appointed by the Government of one of the Three Powers by one of the members adjoint appointed by the Governments of the States which, or whose nationals or residents, are parties, and such replacement shall be made. upon application of all the States, nationals or residents concerned. In default of such agreement, the member appointed by the Government of one of the Three Powers shall sit in the Chamber.

5. The Commission shall sit in public unless it decides otherwise. The deliberations of the Commission shall be and shall remain secret as shall all facts brought to its attention in closed session.

PART II-COMPETENCE, POWERS AND APPLICABLE LAW

ARTICLE 6

1. The Commission shall have jurisdiction in all disputes envisaged under Article 7 of Chapter Five and Article 12 of Chapter Ten of the Convention on the Settlement of Matters Arising out of the War and the Occupation (hereinafter referred to as "the Convention"). Subject to the provisions of paragraph 2 of Article 9 and of Article 10 of the Charter of the Arbitration Tribunal, the Commission may decide questions as to the extent of its jurisdiction. The President of the Commission may ask the Arbitration Tribunal for an advisory opinion, under Article 25 of its Charter, as to the extent of the jurisdiction of the Commission.

2. The jurisdiction, in the first instance or on appeal, as the case may be, of the Commission in disputes within its competence which are submitted to it shall be exclusive and no court or tribunal of the

Signatory States or of any other State, nor any other national or international body, shall have jurisdiction in such disputes.

3. The Commission shall also have jurisdiction in any other matter which may be referred to it from time to time by agreement between the Signatory States. If any acceding State is directly concerned in the matter, the consent of its Government shall also be necessary.

4. Disputes within the jurisdiction of the Commission may be submitted by any of the Signatory States or any State which has acceded to the present Charter, by a national or resident of any such State or of any territorial entity which is administered or controlled by any such State or for whose international relations such State is responsible, or by a juristic person established under the laws of any such State or territorial entity.

5. The Commission shall be competent to decide questions of law and fact.

ARTICLE 7

1. The Commission or, in a case of urgency, the President shall have the power to issue such orders as may be necessary to conserve the respective rights of the parties pending the judgment of the Commission. Any orders issued by the President under this Article may be confirmed, amended or annulled by the Commission within seventy-two hours after the notification thereof to the parties.

2. Any party affected by such an order of the Commission or of the President who shall not have been heard prior to the making thereof may apply to the Commission for the amendment or annullment of the order at such time and in such manner as may be prescribed in the rules of procedure envisaged in Article 14 of the present Charter.

ARTICLE 8

In arriving at its decisions, the Commission shall apply the provisions of the Convention and of legislation made applicable thereby. Where necessary to supplement or interpret such provisions, or in the absence of any relevant provisions, it shall apply the general principles of international law and of justice and equity.

PART III-PROCEDURE

ARTICLE 9

1. The official languages of the Commission shall be French, English and German. However, the President may, with the consent of the parties, direct that only one or two of these languages shall be used in the proceedings in any cause.

2. Decisions of the Commission shall be delivered in all three languages.

ARTICLE 10

Proceedings before the Commission shall be instituted by a written complaint which shall contain a statement of the facts giving rise to the dispute and the arguments put forward by the complainant.

Unless the Commission decides otherwise, an answer to the complaint shall be filed within one month of the service of the complaint. Further pleadings, if any, shall be filed as the Commission may direct.

ARTICLE 11

1. States as parties to the proceedings before the Commission shall be represented by agents. They may be assisted by counsel.

2. Natural persons may appear before the Commission either in person or by counsel, and juristic persons either by authorized representatives or by counsel.

3. Any government agent shall be authorized to present orally and in writing arguments and submissions in cases to which a national or resident of his State is a party.

4. The Commission may prescribe the qualifications which counsel must possess in order to be admitted.

5. The agents, counsel and representatives referred to in this Article shall enjoy immunity from suit in respect of acts performed in the exercise of their duties. Any natural persons appearing in person shall enjoy the same immunity.

ARTICLE 12

The Commission shall have power to demand the production of evidence, documentary or other, to require the attendance of witnesses to testify, to request expert opinion, and to direct inquiries to be made. To this end the Commission may request the aid of the courts of any Signatory or acceding State.

ARTICLE 13

1. All decisions of the Commission shall be in the form of judgments or orders and shall be by majority vote of the members taking part.

2. Subject only to this Article and to paragraph 2 of Article 9 and Article 10 of the Charter of the Arbitration Tribunal, all final judgments and orders of the Commission shall be binding on all parties and shall not be subject to appeal.

3. All judgments shall be delivered in writing and in open court. They shall include a statement of the facts and the reasons on which they are based.

4. Final decisions of the Commission in plenary session shall not be subject to appeal. The final decision on a case assigned to a Chamber must be taken by the Arbitral Commission in plenary session if the Chamber, before it has pronounced a final decision, decides to refer the case to the plenary session.

5. Decisions of the Chambers may, by leave of the Chamber or the plenary session, be appealed on the law to the plenary session. Leave to appeal shall be sought within thirty days from the time the written decision is served upon the party, and such leave shall lapse if no appeal is lodged within thirty days from the date on which it is granted.

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