Article 63 (1) Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. (2) Every state so notified has the right to intervene in the proceedings: but if it uses this right, the construction given by the judgment will be equally binding upon it. Article 64 Unless otherwise decided by the Court, each party shall bear its own costs. CHAPTER IV ADVISORY OPINIONS It is for the Charter of the United Nations to determine what organs of the latter shall be qualified to lay before the Court a request for an advisory opinion. Although this was not stated in the Dumbarton Oaks Proposals, the Committee believed, however, that it might presume that not only the Security Council but also the General Assembly would have this function, and it is on that basis that it has determined how the application should be submitted. The suggestion has been made to allow international organizations and, even to a certain extent, states to ask for advisory opinions; the Commission did not believe that it should adopt it. Aside from that, the changes made in Articles 65 to 68 are purely formal and do not call for any comment. Article 65 (1) Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request, signed either by the President of the General Assembly or the President of the Security Council or by the Secretary-General of the United Nations under instructions from the General Assembly or the Security Council. (2) The request shall contain an exact statement of the question upon which an opinion is required, and shall be accompanied by all documents likely to throw light upon the question. Article 66 (1) The Registrar shall forthwith give notice of the request for an advisory opinion to the Members of the United Nations, through the Secretary-General of the United Nations, and to any states entitled to appear before the Court. (2) The Registrar shall also, by means of a special and direct communication, notify any Member of the United Nations or state entitled to appear before the Court or international organization considered by the Court (or, should it not be sitting, by the President) as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question. (3) Should any Member of the United Nations or state entitled to appear before the Court have failed to receive the special communication referred to in paragraph (2) of this Article, such member or state may express a desire to submit a written statement, or to be heard; and the Court will decide. (4) Members, states, and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other members, states, or organizations in the form, to the extent and within the time limits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to members, states, and organizations having submitted similar statements. Article 67 The Court shall deliver its advisory opinions in open Court, notice having been given to the Secretary-General of the United Nations and to the representatives of Members of the United Nations, of states, and of international organizations immediately concerned. Article 68 In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable. It has been suggested that the provisions of the Court Rules (Article 67) concerning appeals brought before the Court be transferred to the Statute. But it has been observed that those provisions have to do with procedure only, and consequently their place is in the Rules. The part played by the Court as an appeal court is governed by the provisions governing its jurisdiction. Consequently, the suggestion mentioned above was not included. CHAPTER V The United States Government having proposed the acceptance of a special procedure for amendment of the Statute of the Court, this proposal has appeared suited to fill a regrettable lacuna in the Statute, a lacuna the disadvantage of which has made itself felt in the past. The Committee has changed the United States proposal in order to bring it into conformity with the corresponding provision proposed at Dumbarton Oaks to form part of the Charter of the United Nations. The Committee's proposal is dependent on what is decided at San Francisco regarding the changing of the Charter itself. While deeming its proposal provisional for this reason, the Committee thought that it should draft it, because of the importance which it attaches to a provision of this nature. Article 69 Amendments to the present Statute shall come into force for all parties to the Statute when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by the Members of the United Nations having permanent membership on the Security Council and by a majority of the other parties to the Statute. [The above text of Article 69 was adopted to conform with Chapter XI of the Dumbarton Oaks Proposals and subject to reconsideration if that text is changed.]8 A member of the Committee called its attention to the importance which exact execution of the decisions of the Court has for the reign of law and the maintenance of peace, and he wondered whether the Statute ought not to contain a provision concerning the proper means for assuring this effect. The importance of this suggestion was not contested, but the remark was made that it was not the business of the Court itself to insure the execution of its decisions, that the matter concerns rather the Security Council, and that Article 13, paragraph 4, of the Covenant had referred in this connection to the 'Brackets in original. 665605-46 -56 Council of the League of Nations. A provision of this nature should consequently appear in the Statute, but the attention of the San Francisco Conference should not be called to the great importance connected with formulating rules on this point in the Charter of the United Nations. In drafting the above texts, the Committee has been careful to respect the distribution of subject-matter and the numbering of articles just as they occur in the Statute of the Permanent Court of International Justice. It has felt that in so doing it would facilitate scientific work and the utilization of jurisprudence. The Committee has not disregarded the fact that among the United Nations there are many which are parties to the Statute of the Court drawn up in 1920 and revised in 1929, and that on that account they are bound not only to one another, but also with respect to states which do not appear among the United Nations. Hence the obligation for the former of adjusting the situation arising between them and those states for that reason. That adjustment was not within the province of the Committee: it did not undertake to prejudge it. It should be also borne in mind that in building up an institution of international justice the regular channels must be followed with special strictness. Report of Rapporteur of Committee IV/2 to Doc. 933, June 12 Commission IV The Memorandum on the Organization of the Conference (Doc. 31, DC/6, April 27, 1945), approved at the Fifth Plenary Session, directed Committee IV/2 to prepare and recommend to Commission IV draft provisions for the Charter of the United Nations relating to matters dealt with in connection with the functioning of the United Nations Organization, such as registration of treaties, treaty obligations inconsistent with the Charter, the juridical status of the Organization, and privileges and immunities of officials of the Organization. The Committee held its first meeting on May 5 and has held a total of 16 meetings. It has completed the consideration of all problems assigned to it, including certain problems referred to it by other committees. Its report is as follows: 1. Privileges and Immunities9 The Committee recommends for inclusion in the Charter the following text: I. (1) The Organization shall enjoy in the territory of each of its members such privileges and immunities as are necessary to the fulfilment of its purposes. (2) Representatives of the members of the Organization and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary to the independent exercise of their functions in connection with the Organization. II. The General Assembly may make recommendations with a view to determining the details of the application of the foregoing provisions or may propose conventions to the members of the Organization for this purpose. Paragraph I (1) of this proposed article refers to the Organization considered as a distinct entity. In so doing it covers all the agencies of the Organization, that is, the agencies or authorities established by the Charter, as well as the other bodies and organisms which might subsequently be established by virtue of the powers conferred by the Charter. By way of examples of such bodies and organisms, we may point to those to be established by the General Assembly, the Security Council, and the Economic and Social Council, as contemplated by Chapters V, VI, and IX of the Dumbarton Oaks Proposals. Therefore there have been excluded from the provisions contemplated in the proposal of the Committee those agencies not belonging to the Organization, although they may have been brought into connection or relation with the Organization through applica 'This section of the report is practically identical with the report of Subcommittee A (Doc. 412, May 18 and 19), tion of the Charter. Paragraph I (2) refers to: (A) the representatives of the states members of the Organization; (B) the officials (functionaries, et cetera) of the Organization and of its organs, authorities, or agencies referred to in paragraph I (1). In order to determine the nature of the privileges and immunities, the Committee has seen fit to avoid the term "diplomatic" and has preferred to substitute a more appropriate standard, based, for the purposes of the Organization, on the necessity of realizing its purposes and, in the case of the representatives of its members and the officials of the Organization, on providing for the independent exercise of their functions. Paragraph II of the draft article empowers the General Assembly to formulate, if it deems it useful, recommendations leading to the determination of the details of application of the provisions in paragraph I. Should it be appropriate, such recommendations could apply only to those members who, for instance, might have weightier obligations owing to the fact that the Organization or its organs happen to have establishments on their territory. These recommendations may, if this method is found opportune, assume the form of a convention (agreement, modus vivendi, et cetera) proposed by the General Assembly to a member, to be concluded between the two. Naturally the recommendations of the Assembly might differ according to the particular circumstances of the states to which they would be addressed. On the other hand, the possibility is not excluded of a general convention to be submitted to all the members. Paragraph II only provides a power which the General Assembly may or may not exercise. It does not impair the provisions of paragraph I. This latter sets forth a rule obligatory for all members as soon as the Charter becomes operative. In the opinion of the Committee, this rule should apply under any circumstances, its authority being in no way subordinated to the exercise by the Assembly of the power specified in paragraph II. The draft article proposed by the Committee does not specify the privileges and immunities respect for which it imposes on the member states. This has been thought superfluous. The terms "privileges" and "immunities" indicate in a general way all that could be considered necessary to the realization of the purposes of the Organization, to the free functioning of its organs, and to the independent exercise of the functions and duties of their officials: exemption from tax, immunity from jurisdiction, facilities for communication, inviolability of buildings, properties, and archives, et cetera. It would moreover have been impossible to establish a list valid for all the member states and taking account of the special situation in which some of them might find themselves by reason of the activities of the Organization or of its organs in their territory. But if there is one certain principle it is that no member state may hinder in any way the working of the Organization or take any measures the effect of which might be to increase its burdens, financial or other. 2. Registration and Publication of Treaties10 The Committee recommends for inclusion in the Charter the following text: 10 This section of the report is practically identical with the report of Subcommittee A (Doc. 651, May 28). |