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consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute, The Security Council shall lay down such conditions as it deems just for the participation of a state which is not a Member of the United Nations."
According to Article 27, paragraph 3, members of the Security Council which are parties to a dispute shall abstain from voting on a decision taken for the purpose of the pacific settlement of disputes under Chapter VI of the Charter.
4. According to the Covenant of the League of Nations, the Council was competent to make only recommendations for the settlement of a dispute. However, a recommendation unanimously adopted by the Council had a certain legal effect. In this respect, Article 15, paragraph 6, provided : "If a report by the Council is unanimously agreed to by the Members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report.”
According to the Charter, too, the Security Council is authorized to make only recommendations for the settlement of disputes. These recommendations may be adopted, according to Article 27, by an affirmative vote of seven (of the eleven) members including the concurring votes of the permanent members. It must, however, be taken into consideration that the Security Council, according to Article 39, may consider the non-compliance of a party with its recommendations as a threat to the peace and hence may take enforcement measures in order to maintain international peace. If these measures are to be considered as sanctions, the so-called recommendations of the Security Council have the character of a decision which may be binding upon the parties.
5. Under the Covenant, the members had the choice of submitting their dispute to the conciliation procedure of the Council or to the decision of an international tribunal (tribunal of arbitration or the Permanent Court of International Justice). Article 12 stipulated :
"1. The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration, or judicial settlement or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. 2. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.” Article 15, paragraph 1: "If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof."
The Charter provides in Article 33, paragraph 1: "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
Article 37, paragraph 1: "Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.”
As far as settlement by judicial means is concerned, the members have the choice of submitting the dispute to the International Court of Justice or to an arbitral tribunal established by their agreement. Article 92 of the Charter provides : “The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.” Article 95: "Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.”
6. The General Act for the Pacific Settlement of International Disputes adopted by the Ninth Assembly of the League of Nations on 26 September 1928 stipulated that legal disputes shall be submitted to arbitration or judicial settlement and that other disputes, provided that conciliation does not lead to an agreement of the parties, shall be submitted to an arbitral tribunal. The most important provisions of the General Act were: Article 1: "Disputes of every kind between two or more Parties to the present General Act which it has not been possible to settle by diplomacy shall, subject to such reservations as may be made under Article 39, be submitted, under the conditions laid down in the present Chapter, to the procedure of conciliation.” Article 2: "The disputes referred to in the preceding article shall be submitted to a permanent or special Conciliation Commission constituted by the parties to the dispute.” Article 17: “All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice.” Article 20, paragraph 1: "Notwithstanding the provisions of Article 1, disputes of the kind referred to in Article 17 arising between parties who have acceded to the obligations contained in the present Chapter shall only be subject to the procedure of conciliation if the parties so agree.” Article 21: “Any dispute not of the kind referred to in Article 17 which does not, within the month following the termination of the work of the Conciliation Commission provided for in Chapter I, form the object of an agreement between the parties, shall, subject to such reservations as may be made under Article 39, be brought before an arbitral tribunal which, unless the parties otherwise agree, shall be constituted in the manner set out below.” Article 28: “If nothing is laid down in the special agreement or no special agreement has been made, the Tribunal shall apply the rules in regard to the substance of the dispute enumerated in Article 38 of the Statute of the Permanent Court of International Justice. In so far as there exists no such rule applicable to the dispute, the Tribunal shall decide ex aequo et bono." The last sentence of Article 28 presupposed that there were gaps in existing international law which could be filled by principles of equity. Cf. pp. 19 f., 32, 189. Article 39 of the General Act contained an extensive enumeration of the reservations which a state might make in acceding to the Act. By these reservations the following disputes might be excluded from the procedure described in the Act: “(a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute; (b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States; (c) Dis
putes concerning particular cases or clearly specified subject matters, such as territorial status, or disputes falling within clearly defined categories.”
The Resolution 268 (III) A (Restoration to the General Act of 26 September 1928, of its original efficacy) adopted by the General Assembly at its 199th Plenary Meeting on 28 April 1949, instructed the Secretary-General "to prepare a revised text of the General Act,” including certain amendments mentioned in the resolution, "and to hold it open to accession by States, under the title 'Revised General Act for the Pacific Settlement of International Disputes.'” The amendments mentioned in the resolution "will only apply as between States having acceded to the General Act as thus amended and, as a consequence, will not affect the rights of such States, parties to the Act as established on 26 September 1928, as should claim to invoke it in so far as it might still be operative."
Neither the Covenant nor the Charter imposes upon the members of the security organization an obligation to submit disputes to a judicial procedure. The Member states may do so by agreement, and they are free to submit the dispute either to the Permanent Court of the Organization or to an arbitral tribunal established by their agreement.
7. The judicial organ of the League of Nations was the Permanent Court of International Justice established in accordance with Article 14 of the Covenant by the Protocol of Signature of the Statute of the Permanent Court of International Justice of 16 December 1920. The judicial organ of the United Nations is the International Court of Justice established by the Charter. Its Statute forms an integral part of the Charter. It is not very different from that of the Permanent Court of International Justice.
8. According to Article 2 of the Statute of the International Court of Justice, the Court is composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or who are jurisconsults of recognized competence in international law. According to Article 3, the Court consists of fifteen members, no two of whom may be nationals of the same state. According to Article 4, the members are elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. A "national group” is formed by the persons (four at most) selected by the contracting parties to the Hague Convention for the Pacific Settlement of International Disputes of 1907, according to Article 44 of this convention. In the case of members of the United Nations not represented in the Permanent Court of Arbitration, candidates are nominated by national groups appointed for this purpose by their governments under the same conditions as those prescribed for members of the Permanent Court of Arbitration by Article 44 of the Hague Convention of 1907. No national group may nominate more than four persons, not more than two of whom shall be of their own nationality (Article 5). Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council are considered as elected (Article 10).
9. The members of the “national groups," competent to nominate the candidates which may be elected members of the International Court of Justice, are appointed by the governments concerned.
10. Article 6 of the Statute of the International Court of Justice only recommends that each national group should consult its highest court of Justice, its legal faculties and schools of law, and its national academies and national
sections of international academies devoted to the study of law before making the nomination of candidates.
11. According to Article 13 of the Statute, the members of the Court are elected for nine years and may be re-elected. Their independence and impartiality is guaranteed by the following provisions: no member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature (Article 16, paragraph 1); no member of the Court may act as agent, counsel, or advocate in any case; no member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties or as a member of a national or international court, or of a commission of enquiry or in any other capacity (Article 17, paragraphs 1 and 2); no member of the Court can be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions (Article 18, paragraph 1). The members of the Court, when engaged on the business of the Court, enjoy diplomatic privileges and immunities (Article 19). Every member of the Court shall, before taking up its duties, make a solemn declaration in open court that he will exercise his powers impartially and conscientiously (Article 20). If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President. If the President considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly. If in any such case the member of the Court and the President disagree, the matter shall be settled by the decision of the Court (Article 24). Judges who are of the nationality of the parties to the case before the Court are not excluded from sitting in the case. However, if "the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article" (Article 31, paragraphs 2 and 3). This is the institution of “national judges.”
12. According to Article 21 of the Statute, the Court elects its President and Vice-President; they may be re-elected.
13. According to Article 55 of the Statute, all questions shall be decided by a majority of the judges present. In the event of an equality of votes, the President or the judge who acts in his place shall have a casting vote.
14. The International Court of Justice has no compulsory jurisdiction. As pointed out, the members of the United Nations, and other states which may become parties to the Statute on conditions to be determined (according to Article 93 of the Charter) by the General Assembly upon recommendation of the Security Council, are not obliged to submit disputes to the Court. But they may do so. A case may be brought before the Court by a special agreement of the parties to the dispute. In this way any dispute whatsoever may be submitted to the Court. Such a special agreement is not necessary and the case may be brought before the Court by a written application addressed by one party to the Court (Article 40, paragraph 1), if the parties to the dispute have previously made a declaration determined in Article 36, paragraph 2, of the Statute, which provides : "The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agree ment, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a
treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation”. This declaration "may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time" (Article 36, paragraph 3).
The jurisdiction of the Court recognized by a declaration made under Article 36, paragraph 2, of the Statute is not a true compulsory Jurisdiction as it is called in this article, for if a state which has made such a declaration brings a dispute with another state before the Court by a unilateral application in conformity with Article 40 of the Statute, the other party is obliged to recognize the jurisdiction of the Court only if it, too, has made the same declaration. This means that the jurisdiction of the Court in this case is based, not on a special agreement referring to this concrete case, but on a general agreement of the parties to the dispute constituted by their declarations made under Article 36, paragraph 2. Declarations under Article 36, paragraph 2, of the Statute have been made by several states, some of them under reservations which deprive them of almost all practical value.
Thus, e. g., the United States recognized the jurisdiction of the Court in disputes concerning the matters enumerated in Article 36, paragraph 2, of the Statute "Provided, that this declaration shall not apply to (a) disputes the solution of which the parties shall entrust to other tribunals by virtue of agree: ments already in existence or which may be concluded in the future; or (b) disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America; or (c) disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction; and Provided further, that this declaration shall remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration.” That the jurisdiction of a court recognized under these reservations is not "compulsory” is quite evident.
15. According to Article 34, paragraph 1, of the Statute, only states may be parties before the International Court of Justice.
16. Article 38 of the Statute of the International Court of Justice provides : "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decision and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto."
That the Court has to apply the existing conventional and customary law (clauses [a] and [b]) is self-evident and did not need to be stipulated. As to "the general principles of law recognized by civilized nations" (clause [c]), it is doubtful whether such principles common to the legal orders of the civilized nations exist at all, especially in view of the ideological antagonism which separates the communist from the capitalist and the autocratic from the democratic legal systems. If the Court assumes that a general principle of law