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The Process of Amending the Statute of the International Court of Justice

  • Egon Schwelb (a1)

Extract

The Statute of the Permanent Court of International Justice did not contain a clause regulating the procedure for its amendment. This was considered to be a “gap,” an “unfortunate lacuna.” This “gap” may or may not have been deliberate. It was certainly not a “genuine” gap. In spite of the absence of a provision on amendments, the law provided a clear though inconvenient answer to the question of how the Statute could be amended, namely, by unanimous consent of all parties to it. In 1928 proceedings for the introduction of some amendments were initiated. They were incorporated in a Protocol of Amendment in 1929. The difficulties which were encountered before the Protocol of Amendment entered into force in 1936 are now history and need not be dealt with here, the less so as they have been described in considerable detail in a recent book. The Protocol of Amendment did not remedy this defect of the original Statute. As Hudson has explained, this was due to the fact that the adhesion of the United States was proposed on condition that the Statute “shall not be amended without the consent of the United States.” Such a position could hardly be accorded to the United States unless it were also maintained for the other states which were parties.

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1 Lauterpacht, , The Function of Law in the International Community 72-73 (1935).

2 Hudson, , The Permanent Court of International Justice, 1920-1942, p. 132 (1943).

3 Lauterpacht, op. cit. 73, note 1.

4 Schwelb, , “The Amending Procedure of Constitutions of International Organizations,” 31 Brit. Yr. Bk. Int. Law 53, note 5 (1954).

5 Zacklin, , The Amendment of the Constitutive Instruments of the United Nations and the Specialized Agencies 67-68, 92-99 (1968).

6 24 A.J.I.L. 45 (1930); Zacklin, op. cit. 95.

7 Proposals for the Establishment of a General International Organization, Dumbarton Oaks, October, 1944, Ch. VII (An International Court of Justice), U.N. Yearbook, 1946, p. 6; also in U. S. Department of State, Conference Series 56, Pub. 2192; H.M. Stationery Office, Miscellaneous No. 4 (1944), Cmd. 6560; 39 A.J.I.L. Supp. 50-51 (1945).

8 Report of a Sub-Committee I of Commission IV, 13 UNCIO Documents 527, Commission IV, Judicial Organization; Report of the Rapporteur of Committee I, ibid. 306, 307.

9 1 Rosenne, , The Law and Practice of the International Court 57-58 (1965); Zacklin, op. cit. 100-101.

10 Rosenne, op. cit. 57; see also Kelsen, , The Law of the United Nations 824 (1950), and Zacklin, op. cit. 115.

11 Decisions taken at the 661st plenary meeting, U.N. General Assembly, 11th Sess., Official Records, Supp. No. 17 (A/3572) p. 65; General Assembly Res. 1190 (XII), 1299 (XIII) and 1404 (XIV). For an analysis of these proceedings see Schwelb, , “Charter Review and Charter Amendment—Recent Developments,” 7 Int. and Comp. Law Q. 313-318 (1958), and “Charter Review and Charter Amendment—Developments in 1958 and 1959,” 9 ibid. 243-244 (1960); also 59 A.J.I.L. 835 (1965).

12 U.N. Doc. A/7591, June 20, 1969, and Add. 1 and 2. See also Report of the International Court of Justice August 1, 1968-July 31, 1969, U.N. General Assembly 24th Sess., Official Records, Supp. No. 5 (A/7605), Ch. IV and Annex. On the proposals of the Court, see D. H. N. Johnson, “Recent Developments in the International Court of Justice,” 33 The Modern Law Review 53 et seq., at 59-62, “Seat of the Court” (January, 1970).

13 U.N. Docs. A/PV.1758 (Provisional), Sept. 20, 1969, and A/PV.1820 (Provisional), Dec. 4, 1969.

14 General Assembly Res. 2520 (XXIV), Dec. 4, 1969, General Assembly, 24th Sess., Official Records, Supp. No. 30 (Doc. A/7630), p. 4.

15 General Assembly Res. 91(1) on the Conditions on which Switzerland may become a Party to [the Statute of] the International Court of Justice, Dec. 11, 1946. The Report and Recommendations of the Committee of Experts of the Security Council, adopted by the Security Council at its 80th meeting, Nov. 15, 1946, Security Council, 1st year, 2nd series, Supp. No. 8, Annex 13 (S/191) are annexed to General Assembly Res. 91(1). See also 5 Repertory of United Nations Practice, Art. 93, pars. 10-16.

16 General Assembly Res. 363 (IV), Dec. 1, 1949.

17 General Assembly Res. 805 (VIII), Dec. 9, 1953.

18 General Assembly Res. 806 (VIII), Dec. 9, 1953.

19 Repertory of United Nations Practice, loc. cit. note 15 above.

20 General Assembly Res. 264 (III), Oct. 8, 1948.

21 Japan, which as a non-Member of the United Nations had become a party to the Statute in 1953, was admitted to membership in the United Nations in 1956 (General Assembly Res. 1113 (XI), Dec. 18, 1956).

22 Letter dated Sept. 23, 1969, from the President of the General Assembly addressed to the President of the Security Council U.N. Doc. S/9462; also in U.N. Doc. A/7793, Annex I.

23 U.N. Doc. S/PV.1514 and S/PV.1514, Corr. 1 (Provisional).

24 Res. 272 (1969), Oct. 23, 1969, also in Doc. A/7729 (letter from the President of the Security Council to the President of the General Assembly) and in Doc. A/7793, Annex II.

25 U.N. Doc. A/PV.1820 (Provisional), Dec. 4, 1969; General Assembly Res. 2520 (XXIV). For the full text of the resolution see p. 891 below.

26 Note by the Secretary General, U.N. Doc. A/7793, Nov. 25, 1969.

27 Note 20 above.

28 See p. 881 above.

29 For an examination of the relationship between the voting requirements of Arts. 108 and 18 of the Charter, see Schwelb, be. cit. note 4 above, pp. 74-75; also Zacklin, op. cit. note 5 above, p. 115.

30 See above at notes 23 and 24. In par. 7 of a memorandum dated Nov. 7, 1969, reproduced as Annex II to U.N. Doc. A/759l/Add.2 (9 Int. Legal Materials 631 (1970)), the Court observed that the amendment which it had proposed would not involve any consideration now of changing the Court’s seat at The Hague. Clearly not anticipating the participation in the amending process of parties to the Statute which are non-Members of the United Nations, the Court went on to say that even after the amendment is subsequently approved by two thirds of the Members of the United Nations, including all the permanent members of the Security Council, a new decision of the General Assembly, at some future time, on the recommendation of the Court, would be required to change the Court’s seat.

31 Schwelb, , “Entry into Force of the Amendment to Article 109 of the Charter of the United Nations,” 17 Int. and Comp. Law Q. 1011 (1968).

32 See above at notes 23 and 24.

33 With a U.N. membership of 126 the figure of 86 ratifications could be reached when only 83 Members of the United Nations have ratified, while two thirds of the number of U.N. Members is 84.

34 For a review of various opinions expressed on this question, see Schwelb, loc. cit. note 4 above, pp. 88-89.

35 Hudson, op. cit. note 2 above, pp. 127-128; Schwelb, he. cit. note 4 above, p. 92.

36 The amendments to Arts. 23, 27 and 61 were held to have come into force on Aug. 31, 1965, the date of the deposit of the instrument of ratification of the United States. (Protocol of Entry into Force of the Amendments to Articles 23, 27 and 61 of the Charter, General Assembly, 20th Sess., Official Records, Agenda items 15 and 16, Doc. A/6019, Sept. 25, 1965.) The amendment to Art. 109 was held to have entered into force on June 12, 1968, the date of the deposit of the instrument of ratification by Botswana (U.N. Press Release L/T/256, June 12, 1968).

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