1950

ICJ

Interpretation of Peace Treaties with Bulgaria Hungary and Romania Advisory opinion Second phase

The 1947 Peace Treaties between the allied Powers and Bulgaria, Hungary and Romania, provided for commissions to hear disputes concerning the interpretation of the treaties. Each party was to appoint one member, and both were to agree on a 3rd. If they could not agree on the 3rd, the SG UN would appoint it. In a dispute relating violation of human rights, BHR did not appoint their member. GA asked: whether the SGUN could appoint the 3rd member when a party had failed to appoint, and if the commission consisting of those two persons could hear the dispute. ICJ reply in negative to the first question, and it was not necessary to reply to the 2nd. Resolution (227p) According to the natural and ordinary meaning of the terms it was intended that the appointment of both the national commissioners should precede that of the third member

(229p) As the court had said (1st phase of the AO) BHR are under an obligation to appoint their representatives to the treaty commissions and it is clear that refusal to fulfil a treaty obligation involves international responsibility. Nevertheless, such a refusal cannot alter the conditions contemplated in the Treaties for the exercise by the SG of his power of appointment. These conditions are not present in the case…The failure of the machinery for settling disputes by reason of the practical impossibility of creating the commission provided by the treaties is one thing; international responsibility is another… It is the duty of the court to interpret the Treaties, not to revise them. Principle of interpretation referred as the rule of effectiveness cannot justify the court in attributing to the provisions …a meaning which would be contrary to their letter and spirit (229p) It has been pointed out that an arbitration commission may make a valid decision although the original number of its members, as fixed by the arbitrations agreement, is later reduced by such circumstances as the withdrawal of one of the commissioners. These cases presuppose the initial validity of a commission, constituted in conformity with the will of the parties as expressed in the in the arbitration agreement, whereas [the present case] raises precisely the question of the initial validity of the constitution of the Commission. In law, the two situations are clearly distinct and it is impossible to argue from one to the other.