Legal Questions

CHAPTER I

THE INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING BARCELONA TRACTION, LIGHT AND POWER

COMPANY, LIMITED (NEW APPLICATION: 1962)
(BELGIUM vs. SPAIN)
On 24 July 1964, the International Court of jection, the Court had removed the case from
Justice delivered its judgement on the prelimi- its list on 10 April 1961. In its first preliminary
nary objections raised by Spain in the case con- objection, the Respondent contended that this
cerning the Barcelona Traction, Light and discontinuance precluded the Applicant from
Power Company, Limited, brought against it by bringing the present proceedings and advanced
Belgium. five arguments in support of its contention.
1
These proceedings were instituted by an Ap- The Court accepted the first argument, to
plication of 19 June 1962 in which the Belgian the effect that discontinuance was a purely pro-
Government sought reparation for damage cedural act, the real significance of which must
claimed to have been caused to Belgian na- be sought in the attendant circumstances.
tionals, shareholders in the Canadian Barcelona On the other hand, the Court was unable to
Traction Company, by the conduct of various accept the second argument, namely, that a
organs of the Spanish State. Within the time- discontinuance must always be taken as signi-
limit fixed for the filing of the Counter-Me- fying a renunciation of any further right of
morial, which expired on 15 March 1963, the action unless the right to start new proceedings
Spanish Government raised four preliminary was expressly reserved. As the Applicant's notice
objections. A written statement of its observa- of discontinuance contained no motivation and
tions and submissions on the preliminary ob- was very clearly confined to the proceedings
jections was filed within the time-limit fixed, instituted by the first Application, the Court
namely, 15 August 1963. Hearings on the pre- considered that the onus of establishing that
liminary objections were held from 11 March the discontinuance meant something more than
to 19 May 1964. a decision to terminate those proceedings was
placed upon the Respondent.
FIRST PRELIMINARY OBJECTION The Respondent, in its third argument, as-
In its judgement, the Court recalled that on serted that there had been an understanding
23 September 1958 Belgium had filed with the between the Parties; it recalled that the repre-
Court an earlier Application2 against Spain in sentatives of the private Belgian interests con-
respect of the same facts, and Spain had then cerned had made an approach with a view to
raised three preliminary objections. On 23 opening negotiations and that the representa-
March 1961, the Applicant, availing itself of tives of the Spanish interests had laid down as
the right conferred upon it by Article 69, para- a prior condition the final withdrawal of the
graph 2, of the Rules of the Court, had in-
formed the Court that it was not going on with 1
See Y.U.N., 1962, p. 473; Y.U.N., 1963, p. 513.
the proceedings; notification having been re- 2
See Y.U.N., 1958, p. 377; Y.U.N., 1959, p. 400;
ceived from the Respondent that it had no ob- Y.U.N., 1960, p. 539; Y.U.N., 1961, p. 509.
454 LEGAL QUESTIONS
claim. According to the Respondent, what was the original proceedings; therefore, the Treaty
meant by this was that the discontinuance could not be invoked a second time to seize
would put an end to any further right of action, the Court of the same complaints. The Court:
but the Applicant denied that anything more considered that the Treaty processes could not
was intended than the termination of the then be regarded as having been exhausted so long
current proceedings. The Court was unable to as the right to bring new proceedings otherwise
find at the governmental level any evidence existed and until the case had been prosecuted,
of any such understanding as was alleged by to judgement.
the Respondent; it seemed that the problem For these reasons, the Court rejected the first
had been deliberately avoided lest the founda- preliminary objection.
tion of the interchanges be shattered. Nor had
the Respondent, on whom lay the onus of mak- SECOND PRELIMINARY OBJECTION
ing its position clear, expressed any condition To found the jurisdiction of the Court, the
when it indicated that it did not object to the Applicant relied on the combined effect of Ar-
discontinuance. ticle 17(4) of the 1927 Treaty between Belgium
The Respondent Government then advanced and Spain—according to which if the other
a fourth argument, having the character of a methods of settlement provided for in that
plea of estoppel, to the effect that, independ- Treaty failed, either party could bring any dis-
ently of the existence of any understanding, the pute of a legal nature before the Permanent
Applicant had by its conduct misled the Re- Court of International Justice—and Article 37
spondent about the import of the discontinu- of the Statute of the International Court of
ance, but for which the Respondent would not Justice—which states that "whenever a treaty
have agreed to it, and would not thereby have or convention in force provides for reference
suffered prejudice. The Court did not consider of a matter . . . to the Permanent Court of In-
that the alleged misleading Belgian misrepre- ternational Justice, the matter shall, as between
sentations had been established and could not the parties to the present Statute, be referred
see what the Respondent stood to lose by agree- to the International Court of Justice."
ing to negotiate on the basis of a simple dis- As the principal aspect of its objection, the
continuance; if it had not agreed to the dis- Respondent maintained that although the 1927
continuance, the previous proceedings would Treaty might still be in force, Article 17(4)
simply have continued, whereas negotiations had lapsed in April 1946 on the dissolution of
offered a possibility of finally settling the dis- the Permanent Court, to which that article re-
pute. Moreover, if the negotiations were not ferred. No substitution of the present for the
successful and the case was to be started again, former Court had been effected in that article
it would still be possible once more to put for- before the dissolution, Spain not being then a
ward the previous preliminary objections. Cer- party to the Statute; in consequence, the 1927
tainly the Applicant had framed its second Treaty had ceased to contain any valid jurisdic-
Application with a foreknowledge of the prob- tional clause when Spain was admitted to the
able nature of the Respondent's reply and had United Nations in December 1955 and became
taken it into account but, if the original pro- ipso facto a party to the Statute. In other words,
ceedings had continued, the Applicant likewise Article 37 applied only between States which
always could have modified its submissions. had become parties to the Statute previous to
The final argument was of a different order. the dissolution of the Permanent Court, and
The Respondent alleged that the present pro- that dissolution had brought about the extinc-
ceedings were contrary to the spirit of the Treaty tion of jurisdictional clauses providing for re-
of Conciliation, Judicial Settlement and Arbi- course to the Permanent Court unless they had
tration between Belgium and Spain, signed on previously been transformed by the operation
19 July 1927, which, according to the Applicant, of Article 37 into clauses providing for recourse
conferred competence on the Court. The pre- to the present Court.
liminary stages provided for by the Treaty had The Court found that this line of reasoning
already been gone through in connexion with had first been advanced by the Respondent after
 THE INTERNATIONAL COURT OF JUSTICE 455
the decision given by the Court on 26 May before or after the dissolution of the Permanent
1959 in the case concerning the Aerial Incident Court.
of 27 July 1955 (Israel v. Bulgaria).3 But that As regards Article 17(4) more particularly,
case had been concerned with a unilateral de- the Court considered that it was an integral
claration in acceptance of the compulsory juris- part of the 1927 Treaty. It would be difficult
diction of the Permanent Court and not with to assert that the basic obligation to submit
a treaty. It thus had reference not to Article to compulsory adjudication provided for in the
37 but to Article 36, paragraph 5, of the Sta- Treaty was exclusively dependent on the exist-
4
tute. ence of a particular forum. If it happened that
As regards Article 37, the Court recalled the forum went out of existence, the obligation
that in 1945 its drafters had intended to pre- became inoperative but remained substantively
serve as many jurisdictional clauses as possible in existence and could be rendered operative
from becoming inoperative by reason of the once more if a new tribunal was supplied by the
prospective dissolution of the Permanent Court. automatic operation of some other instrument.
It was thus difficult to suppose that they would Article 37 of the Statute had precisely that
willingly have contemplated that the nullifica- effect. Accordingly, "International Court of
tion of the jurisdictional clauses whose con- Justice" must now be read for "Permanent
tinuation it was desired to preserve would be Court of International Justice."
brought about by the very event the effects of As a subsidiary plea, the Respondent con-
which Article 37 was intended to parry. tended that if Article 37 of the Statute oper-
Only three conditions were actually stated ated to reactivate Article 17(4) of the Treaty
in Article 37. They were: that there should be in December 1955, what came into existence
a treaty in force; that it should contain a at that date was a new obligation between the
provision for the reference of a matter to the Parties; and that just as the original applied
Permanent Court; and that the dispute should only to disputes arising after the Treaty date,
be between States parties to the Statute. In so the new obligation could apply only to dis-
the present case, the conclusion must be that putes arising after December 1955. The dis-
the 1927 Treaty being in force and containing pute was accordingly not covered since it had
a provision for reference to the Permanent arisen prior to December 1955. In the opinion
Court, and the parties to the dispute being of the Court, when the obligation to submit
parties to the Statute, the matter was one to to compulsory adjudication was revived as to
be referred to the International Court of Jus- its operation, this obligation could only func-
tice, which was the competent forum. tion in accordance with the Treaty providing
It was objected that this view led to a situa- for it and, consequently, it continued to relate
tion in which the jurisdictional clause concerned to any disputes arising after the Treaty date.
was inoperative and then after a gap of years For these reasons the Court rejected the sec-
became operative again, and it was asked ond preliminary objection both in its principal
whether in those circumstances any true consent and in its subsidiary aspects.
to the Court's jurisdiction could have been
given by the Respondent. The Court observed THIRD AND FOURTH PRELIMINARY OBJECTIONS
that the notion of rights and obligations that The Respondent's third and fourth pre-
are in abeyance but not extinguished was com- liminary objections involved the question of
mon; States becoming parties to the Statute whether the claim was admissible. The Appli-
after the dissolution of the Permanent Court 3
See Y.U.N., 1959, p. 394.
must be taken to have known that one of the 4
This paragraph states that : "Declarations made
results of their admission would be the reac- under Article 36 of the Statute of the Permanent
tivation by reason of Article 37 of certain juris- Court of International Justice and which are still in
dictional clauses. The contrary position main- force shall be deemed, as between the parties to the
present Statute, to be acceptances of the compulsory
tained by the Respondent would create jurisdiction of the International Court of Justice for
discrimination between States according to the period which they still have to run and in accord-
whether they became parties to the Statute ance with their terms."
456 LEGAL QUESTIONS
cant had submitted alternative pleas that these merits would thus place the Court in a better
objections, unless rejected by the Court, should position to adjudicate with a full knowledge
be joined to the merits. of the facts.
By its third preliminary objection the Re- The foregoing considerations applied a for-
spondent denied the legal capacity of the Ap- tiori to the fourth preliminary objection, where-
plicant to protect the Belgian interests on behalf in the Respondent alleged failure to exhaust
of which it had submitted its claim. The acts local remedies. This allegation was in fact in-
complained of had taken place not in relation extricably interwoven with the issues of denial
to any Belgian natural or juristic person but in of justice which constituted the major part of
relation to the Barcelona Traction Company, the merits of the case.
a juristic entity registered in Canada, the Bel- Accordingly, the Court joined the third and
gian interests concerned being in the nature of fourth preliminary objections to the merits.
shareholding interests in that company. The The Court rejected the first preliminary ob-
Respondent contended that international law jection by 12 votes to 4, and the second by 10
does not recognize, in respect of injury caused votes to 6. It joined the third objection to the
by a State to the foreign company, any diplo- merits by 9 votes to 7 and the fourth by 10
matic protection of shareholders exercised by votes to 6.
a State other than the national State of the The Court was composed as follows: Presi-
company. The Applicant contested this view. dent Sir Percy Spender; Vice-Président Welling-
The Court found that the question of the jus ton Koo; Judges Winiarski, Badawi, Spiropou-
standi of a Government to protect the interests los, Sir Gerald Fitzmaurice, Koretsky, Tanaka,
of shareholders raised an antecedent question Bustamante y Rivero, Jessup, Morelli, Padilla
as to what the juridical situation was in respect Nervo, Forster, Gros; and Judges ad hoc En-
of shareholding interests, as recognized by inter- rique C. Armand-Ugon, former President of
national law. The Applicant thus necessarily in- the Supreme Court of Justice of Uruguay and
voked rights which, so it contended, were con- a former member of the International Court
ferred on it in respect of its nationals by the of Justice, and W. J. Ganshof van der Meersch,
rules of international law concerning the treat- Professor at the Brussels Faculty of Law and
ment of foreigners. Hence a finding by the Avocat general to the Belgian Court of Cassa-
Court that it had no jus standi would be tanta- tion, respectively chosen to sit in this case by
mount to a finding that those rights did not the Spanish Government and the Belgian Gov-
exist and that the claim was not well-founded ernment, in accordance with Article 31(3) of
in substance. the Statute of the Court.
The third objection had certain aspects which President Sir Percy Spender and Judges
were of a preliminary character, but involved Spiropoulos, Koretsky and Jessup appended
a number of closely interwoven strands of mixed Declarations to the judgement.
law, fact and status to a degree such that the Vice-Président Wellington Koo and Judges
Court could not pronounce upon it at the pres- Tanaka and Bustamante y Rivero appended
ent stage in full confidence that it was in posses- Separate Opinions.
sion of all the elements that might have a bear- Judge Morelli and Judge ad hoc Armand-
ing on its decisions. The proceedings on the Ugon appended Dissenting Opinions.

DOCUMENTARY REFERENCES
Case Concerning Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain).
(New Application: 1962). Preliminary Objections,
Judgement of 24 July 1964, I.C.J. Reports 1964,
p. 6. Order of 28 July 1964, I.C.J. Reports 1964,
p. 168.
 QUESTIONS CONCERNING THE INTERNATIONAL LAW COMMISSION 457

CASES CONCERNING SOUTH WEST AFRICA

(ETHIOPIA vs. SOUTH AFRICA; LIBERIA vs. SOUTH AFRICA)
The cases of Ethiopia vs. South Africa and January 1964) and the Reply was filed by the
Liberia vs. South Africa were referred to the the Applicants within the time-limit fixed by
International Court of Justice on 4 November the President of the Court by Order of 20
1960 by almost identical Applications of the January 1964, namely, on 20 June 1964. By
Governments of Ethiopia and Liberia respec- the same Order, 20 November 1964 was fixed
tively. They related to a dispute between the as the time-limit for the filing of the Rejoinder;
Applicants and South Africa concerning the at the request of South Africa and after con-
continued existence of the Mandate for South sultation with the Applicants, the President of
West Africa and the duties of South Africa, as the Court, by Order of 20 October 1964, ex-
5
Mandatory, thereunder. tended the last mentioned time-limit to 23 De-
The Respondent, the South African Govern- cember 1964, on which date, the final pleading
ment, raised preliminary objections which were having been filed, the case became ready for
dismissed by the Court of Justice in its judge- hearing. The President fixed 15 March 1965
ment of 21 December 1962. The proceedings on as the date for the opening of the public hear-
the merits being thereupon resumed, the Coun- ings.
ter-Memorial of South Africa was filed within 5
See Y.U.N., 1960, p. 540; Y.U.N., 1961, p. 509;
the time-limit as extended, (namely, by 10 Y.U.N, 1962, pp. 469-72; Y.U.N., 1963, p. 498.

DOCUMENTARY REFERENCES
Cases concerning South West Africa (Ethiopia v.
South Africa; Liberia v. South Africa). Orders of
20 January and 20 October 1964, I.C.J. Reports
1964, pp. 3 and 171.

CHAPTER II

QUESTIONS CONCERNING THE INTERNATIONAL

LAW COMMISSION

The International Law Commission held its had provisionally adopted two parts (Parts I
sixteenth session in Geneva, Switzerland, from and II) of a set of draft articles on the law of
11 May to 24 July 1964. It devoted most of treaties consisting, respectively, of 29 articles
its meetings to the consideration of the law of (on the conclusion, entry into force and regis-
treaties and the question of special missions. tration of treaties)1 and 25 articles (on the in-
It also dealt with the question of relations be- validity and termination of treaties).2
tween States and inter-govemmental organiza- At its sixteenth session, in 1964, the Com-
tions, and its future programme of work. mission continued its study on the basis of a
report submitted by its Special Rapporteur, Sir
THE LAW OF TREATIES Humphrey Waldock, dealing with the questions
At its fourteenth session, in 1962, the Com- of application, effects, revision and interpreta-
mission had decided to give priority to the codi- tion of treaties.
fication of the law of treaties, one of the major
topics on the Commission's agenda since 1949. 1
SeeY.U.N., 1962, pp. 480-83.
At its 1962 and 1963 sessions, the Commission 2
See Y.U.N., 1963, pp. 499-501, 503-4.