Peace Treaties concerning the observance of human rights and fundamental freedoms. For the purposes of the present Opinion, it suffices to note that the General Assembly justified the adoption of its Resolution by stating that "the United Nations, pursuant to Article 55 of the Charter, shall promote universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion".

The Court is not called upon to deal with the charges brought before the General Assembly since the Questions put to the Court relate neither to the alleged violations of the provisions of the Treaties concerning human rights and fundamental freedoms nor to the interpretation of the articles relating to these matters. The object of the Request is much more limited. It is directed solely to obtaining from the Court certain clarifications of a legal nature regarding the applicability of the procedure for the settlement of disputes by the Commissions provided for in the express terms of Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary and Article 38 of the Treaty with Romania. The interpretation of the terms of a treaty for this purpose could not be considered as a question essentially within the domestic jurisdiction of a State. It is a question of international law which, by its very nature, lies within the competence of the Court.

These considerations also suffice to dispose of the objection based on the principle of domestic jurisdiction and directed specifically against the competence of the Court, namely, that the Court, as an organ of the United Nations, is bound to observe the provisions of the Charter, including Article 2, paragraph 7.

The same considerations furnish an answer to the objection that the advisory procedure before the Court would take the place of the procedure instituted by the Peace Treaties for the settlement of disputes. So far from placing an obstacle in the way of the latter procedure, the object of this Request is to facilitate it by seeking information for the General Assembly as to its applicability to the circumstances of the present case.

It thus appears that these objections to the Court's competence to give the Advisory Opinion which has been requested are ill-founded and cannot be upheld.

Another argument that has been invoked against the power of the Court to answer the Questions put to it in this case is based on the opposition of the Governments of Bulgaria, Hungary and Romania to the advisory procedure. The Court cannot, it is said, give the Advisory Opinion requested without violating the well-established principle of international law according to which no judicial proceedings relating to a legal question pending between States can take place without their consent.

This objection reveals a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions.

The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard

to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an "organ of the United Nations", represents its participation in the activities of the Organization, and, in principle, should not be refused.

Question I involves two main points. First, do the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand. and certain Allied and Associated Powers signatories to the Peace Treaties on the other, disclose any disputes? Second, if they do, are such disputes among those which are subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty with Bulgaria, Article 40 of the Treaty with Hungary, and Article 38 of the Treaty with Romania?

Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non-existence. In the diplomatic correspondence submitted to the Court, the United Kingdom, acting in association with Australia, Canada and New Zealand, and the United States of America charged Bulgaria, Hungary and Romania with having violated, in various ways, the provisions of the articles dealing with human rights and fundamental freedoms in the Peace Treaties and called upon the three Governments to take remedial measures to carry out their obligations under the Treaties. The three Governments, on the other hand, denied the charges. There has thus arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen.

The next point to be dealt with is whether the disputes are subject to the provisions of the articles for the settlement of disputes contained in the Peace Treaties. The disputes must be considered to fall within those provisions if they relate to the interpretation or execution of the Treaties, and if no other procedure of settlement is specifically provided elsewhere in the Treaties.

Inasmuch as the disputes relate to the question of the performance or non-performance of the obligations provided in the articles dealing with human rights and fundamental freedoms, they are clearly disputes concerning the interpretation or execution of the Peace Treaties. In particular, certain answers from the Governments accused of violations of the Peace Treaties make use of arguments which clearly involve an interpretation of those Treaties.

Since no other procedure is specifically provided in any other article of the Treaties, the disputes must be subject to the methods of settlement contained in the articles providing for the settlement of all disputes.

The Court thus concludes that Question I must be answered in the affirmative.

In these circumstances, it becomes necessary to take up Question II, which is as follows:

"Are the Governments of Bulgaria, Hungary and Romania obligated to carry out the provisions of the articles referred to in Question I, including the provisions for the appointment of their representatives to the Treaty Commissions?"

The articles for the settlement of disputes provide that any dispute which is not settled by direct diplomatic negotiations shall be referred to the Three Heads of Mission. If not resolved by them within a period of two months, the dispute shall, unless the parties to the dispute agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member, to be selected in accordance with the relevant articles of the Treaties.

The diplomatic documents presented to the Court show that the United Kingdom and the United States of America on the one hand, and Bulgaria, Hungary and Romania on the other, have not succeeded in settling their disputes by direct negotiations. They further show that these disputes were not resolved by the Heads of Mission within the prescribed period of two months. It is a fact that the parties to the disputes have not agreed upon any other means of settlement. It is also a fact that the United Kingdom and the United States of America, after the expiry of the prescribed period, requested that the disputes should be settled by the Commissions mentioned in the Treaties.

This situation led the General Assembly to put Question II so as to obtain guidance for its future action.

The Court finds that all the conditions required for the commencement of the stage of the settlement of disputes by the Commissions have been fulfilled.

In view of the fact that the Treaties provide that any dispute shall be referred to a Commission "at the request of either party", it follows that either party is obligated, at the request of the other party, to co-operate in constituting the Commission, in particular by appointing its representative. Otherwise the method of settlement by Commissions provided for in the Treaties would completely fail in its purpose. The reply to Question II, as interpreted above, must therefore be in the affirmative.

1 Heads of the diplomatic missions of the United States, the Soviet Union, and the United Kingdom at the capital of Bulgaria, Hungary, or Rumania.

For these reasons,

THE COURT IS OF OPINION,

On Question I:

by eleven votes to three,

that the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories to the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and Hungary and Article 3 of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article 40 of the Treaty of Peace with Hungary, and Article 38 of the Treaty of Peace with Romania; On Question II:

by eleven votes to three,

that the Governments of Bulgaria, Hungary and Romania are obligated to carry out the provisions of those articles referred to in Question I, which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions.

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this thirtieth day of March, one thousand nine hundred and fifty, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

BASDEVANT,
President.

E. HAMBRO,
Registrar.

Judge AZEVEDO, while concurring in the Opinion of the Court, has availed himself of the right conferred on him by Article 57 of the Statute and appended to the Opinion a statement of his separate opinion.2

Judges WINIARSKI, ZORIČIĆ and KRYLOV, considering that the Court should have declined to give an Opinion in this case, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinions.3

1 A Decade of American Foreign Policy, p. 150.

'International Court of Justice Reports, 1950, pp. 79-88. Judge Azevedo contended that the Court should not have agreed to answer the questions, since they were substantive and not abstract, but-the Court having decided to answer the questions-he concurred in the Court's answers.

Ibid., pp. 89-113.

5. NOTE FROM THE AMERICAN LEGATION AT BUDAPEST TO THE HUNGARIAN FOREIGN MINISTRY, APRIL 26, 19501

The Legation of the United States of America presents its compliments to the Minister for Foreign Affairs of Hungary and has the honor to direct the Minister's attention to the advisory opinion on the interpretation of the Peace Treaties with Bulgaria, Hungary, and Rumania which was given by the International Court of Justice on March 30, 1950.2

In the light of this opinion, it is assumed that the Hungarian Government will now nominate its representative on the Peace Treaty Commission and will inform the Secretary-General of the United Nations of the nomination in accordance with the United Nations General Assembly Resolution of October 22, 1949. It is further assumed that the Hungarian Government will also be willing to enter into consultation with the United States Government with a view to the appointment of a third member in accordance with Article 40 of the Treaty of Peace.

As the United States Legation informed the Minister for Foreign Affairs in its note of January 5, 1950,3 the United States Government has appointed Mr. Edwin D. Dickinson as its representative on the proposed Commission.

6. ADVISORY OPINION OF THE INTERNATIONAL COURT OF JUSTICE, JULY 18, 1950 (Excerpts) +

THE COURT,

gives the following Advisory Opinion:

4

[The opinion quotes the resolution adopted by the United Nations General Assembly on October 22, 1949;5 it then quotes the Court's answers to questions I and II which were asked in that resolution; and it continues with an account of certain subsequent developments.]

Having stated, in its Opinion of March 30th, 1950, that the Governments of Bulgaria, Hungary, and Romania are obligated to carry out the provisions of those articles of the Peace Treaties which relate to the settlement of disputes, including the provisions for the appointment of their representatives to the Treaty Commissions, and having received information from the Secretary-General of the United Nations that none of those Governments had notified him, within thirty days from the date of the delivery of the Court's Advisory

1 Department of State Bulletin, May 8, 1950, p. 738. The United States sent similar notes to Bulgaria and Rumania.

2 Supra.

3 Supra, doc. 3.

• International Court of Justice Reports, 1950, pp. 222, 226, and 230.

5 Resolution 294 (IV); A Decade of American Foreign Policy, pp. 1173–1175. Supra, doc. 4.