Governments of Bulgaria, Hungary and Rumania to appoint their own commissioners," said the Court, "has made . . . impossible" the constitution of a commission in conformity with the provisions of the treaties "and has deprived the appointment of the third member by the Secretary-General of every purpose." The normal sequence under the article was the appointment of a national commissioner by each party, the appointment of a third member by mutual agreement, failing which that appointment should be made by the Secretary-General. The "clause must be strictly construed" and by no means envisages "the much more serious case of a complete refusal of cooperation by one of [the parties] taking the form of refusing to appoint its own commissioner." The possible advantage of reversing the normal sequence and appointing a third member before the appointment by the parties of their respective commissions "could only be justified if it were shown by the attitude of the parties that they desired such a reversal;" but the Governments of Bulgaria, Hungary, and Rumania "have absolutely refused to take part, in any manner whatever, in the procedure provided for in the disputes clauses of the treaties." The Court had found that the three governments "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." Absence of the conditions for an appointment by the Secretary-General "is not made good by the fact that it is due to the breach of a treaty obligation." The duty of the Court is "to interpret the Treaties, not to revise them." By 11 votes to 3, the Court negatived the third question:

"That, if one party fails to appoint a representative to a Treaty Commission under the Peace Treaties with Bulgaria, Hungary and Rumania where that party is obligated to appoint a representative to the Treaty Commission, the Secretary-General of the United Nations is not authorized to appoint the third member of the Commission upon the request of the other party to a dispute."

The fourth question, relating to the competency of a two-man commission, was not answered. However, the Court in its advisory opinion indicated such a commission "would be contrary to the letter as well as the spirit of the Treaties," which provided for definitive de cisions "of the majority of the members of the commission," whereas the two-member body would have to be unanimous. The Court distinguished between instances where a constituted commission loses a member and continues to function and the present case of an inchoate commission.

The advisory opinions were submitted to the Fifth Assembly and were the subject of debate in the Ad Hoc Political Committee and were noted in the resolution of November 3, 1950.

The International Status of South-West Africa was the subject of an advisory opinion on July 11, 1950, in reply to questions put to the Court in a resolution of the General Assembly of December 6, 1949. The Union of South Africa under the Covenant of the League of Nations was entrusted with the mandate over former German SouthWest Africa in 1920 but did not consent in 1946 to transform it into a trust territory under the Charter. Various questions arose from this situation and the General Assembly's resolution in 1949 was designed to clarify the situation and relations with the United Nations by means of legal opinions on three phases of the general question of the international status of South-West Africa.

The Court unanimously held "that South-West Africa is a territory under the international mandate assumed by the Union of South Africa on December 17, 1920." The Court called the contention of the Union of South Africa "that this mandate has lapsed, because the League has ceased to exist" a "misconception of the legal situation created" by the Covenant and the mandate itself. It was "not possible to draw any conclusions by analogy from the notions of mandate in national law or from any other legal conception of that law." The Court said: "If the mandate lapsed, as the Union Government contends, the latter's authority would equally have lapsed. To retain the rights derived from the mandate and to deny the obligations thereunder could not be justified."

By 12 votes to 2 the Court replied to question (a) "that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South-West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court." In reaching this opinion the Court examined two kinds of obligations: those related to administration of the Territory and those related to machinery for implementation. The obligations related to administration could not be brought to an end merely because the League as a supervisory organ ceased to exist nor could the right of the population to have the Territory so administered depend thereon. The final resolution of the League Assembly, the Charter, and declarations of South Africa itself supported these conclusions. "The obligation incumbent upon a mandatory state to accept international supervision and to submit reports" was an important part of the system which

could not be admitted to disappear "when the United Nations has another international organ performing similar, though not identical, supervisory functions." The Court concluded "that the General Assembly of the United Nations is legally qualified to exercise the supervisory functions."

Question (b) related to the applicability of the Charter to SouthWest Africa. Unanimously the Court held "that the provisions of Chapter XII of the Charter are applicable to the Territory of South West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System." The reasoning of the opinion was that placing the Territory under the system was not obligatory. It was by 8 votes to 6 that the Court held "the provisions of Chapter XII do not impose on the Union of South Africa a legal obligation to place the Territory under the Trusteeship System."

Question (c) related to the mode of modifying the international status of South-West Africa. In 1946 the Union of South Africa had raised the question of the desirability of the territorial integration in, and the annexation to, the Union of the mandated territory and the General Assembly on December 14, 1946, declared itself "unable to accede to the incorporation of the Territory of South West Africa in the Union of South Africa." The Court in reviewing the facts noted that the "Union Government recognized the competence of the General Assembly in the matter." On question (c) the Court unanimously held

"that the Union of South Africa acting alone has not the competence to modify the international status of the Territory of South West Africa, and that the competence to determine and modify the international status of the Territory rests with the Union of South Africa acting with the consent of the United Nations."

Two resolutions were adopted by the General Assembly on December 13, 1950, with a view to implementing the Court's advisory opinion in collaboration with the Union of South Africa.

The fifth session of the General Assembly adopted one resolution requesting an advisory opinion from the Court. A resolution of November 16, 1950, dealt with the problem of reservations to multilateral conventions, which was remitted for study to the International Law Commission. A practical and current phase of this problem is Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, involving reservations made by states at signing, ratification, and accession. The General Assembly put the problem before the Court in three related questions:

"I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others?

II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the reserving State and:

(a) The parties which object to the reservation?

(b) Those which accept it?

III. What would be the legal effect as regards the answer to question I if an objection to a reservation is made:

(a) By a signatory which has not yet ratified?

(b) By a State entitled to sign or accede but which has not yet done so?"

B. DEVELOPMENT OF INTER

NATIONAL LAW

1. Report of the International Law Commission on the Work of Its Second Session

The International Law Commission held its second session at Geneva from June 5 to July 29, 1950, under the chairmanship of Georges Scelle. Vladimir M. Koretsky, a member of the Commission, withdrew at the opening session after the Commission by a vote of 10 to 1 (Mr. Koretsky) had upheld the chairman's ruling that Mr. Koretsky's proposal to stop the participation of Shuhsi Hsu in the work of the Commission was out of order.

Under the Commission's statute, the members serve in a personal capacity and not as representatives of states or governments. Originally appointed for a term of 3 years in 1948, their term was extended by the General Assembly in 1950 for an additional 2 years. At the same time, following discussion of the heavy demands on the Commission because of its many assignments and personal demands on its members because of the expenses and inconveniences incurred in attending sessions, the General Assembly increased the per diem to 35 dollars and requested the Commission to make recommendations to

the next General Assembly in the light of experience for the promotion of its work.

In its report for 1950, the Commission summarized the progress made in its still pending work on a draft code of offenses against the peace and security of mankind, the law of treaties, the regime of the high seas, and arbitral procedure. It also reported the completion of its study of three other subjects, on which the General Assembly took action, as follows:

(a) WAYS AND MEANS FOR MAKING THE EVI

DENCE OF CUSTOMARY INTERNATIONAL LAW MORE READILY AVAILABLE

Very comprehensive surveys of the material available in this field were made by the Secretariat and the Commission on the basis of which the Commission made certain recommendations relating to new publications or improvements of old ones which recommendations were commended by the General Assembly to the Secretary-General for consideration among other things and in the light of discussions in the Sixth Committee in planning future work in this field.

(b) FORMULATION OF THE NÜRNBERG PRIN

CIPLES

In 1946 the General Assembly unanimously affirmed the principles of international law as recognized by the Charter of the Nürnberg Tribunal and the Judgment of the Tribunal and in 1947 asked the International Law Commission to formulate these principles and to prepare a draft code of offenses against the peace and security of mankind, indicating the place therein of those principles.

The International Law Commission submitted the requested formulation of the Nürnberg principles to the General Assembly this year and the Assembly, following exhaustive general debate in the Legal Committee, decided that the Commission should take account, in its final work on the draft code, of the observations of delegations at this session and the further observations which the General Assembly has invited governments of member states to furnish. The General Assembly neither approved nor disapproved the formulation as submitted by the International Law Commission.