1 See Hudson, The Permanent Court of International Justice 596 (1943). But not all decisions were fully carried out. In the Wimbledon Case, P.C.I.J., Ser. A, No. 1 (1923), the decision of the Court in favor of France was not carried out, since the Reparations Commission, of which France was a member, held that the damages should not be paid, although Germany requested permission to pay. This inability was reported to the Court by the German Minister at The Hague, but there was no public pronouncement about it. In the Société Commerciale de Belgique ease, P.C.I.J., Ser. A/B, No. 78 (1939), the Court held that the awards made against Greece in an arbitration of 1936 were binding. These awards were still unsatisfied in 1950. See Socobel and the Belgian State v. Kingdom of the Hellenes, Brussels Civil Trib., 1951; summary in 47 A.J.I.L. ; 508 (1953).

2 See I.C.J. Pleadings (1954), in Monetary Gold Case (Italy v. France, United Kingdom and United States). Sir Gerald Fitzmaurice, the British counsel, said: “Eight months later, that is to say, on December 15, 1949, and therefore about four and a half years ago, the Court gave a further decision in which, by the large majority of 12 votes to 2, it gave judgment in favour of the United Kingdom's claim to damages, and fixed ‘the amount of compensation due from the People's Republic of Albania to the United Kingdom at £ 843,947,’ or, in terms of dollars, at a sum of approximately two and a half millions. “Not a penny of these damages, fixed more than four years ago, has in fact been paid, and I believe I am right in saying that this constitutes almost the only case in which a decision (at any rate a final decision) whether of this Court or of its predecessor, has not eventually been complied with by the country against which it was given.” (p. 126.)

3 See La Fontaine, “Histoire Sommaire et Chronologique des Arbitrages Inter nationaux,” 1902 Revue de Droit International 349, 558, 622. In the period 1794- 1900, he described 167 arbitrations. Stuyt, Survey of International Arbitration 1794- 1938 (1939), is rather more generous in his calculations. Hambro, L'Exécution des Sentences Internationales (Liège, 1936), was only able to find 20 cases where the possibility of non-compliance had even existed. The rarity of non-compliance is also noted by Lapradelle, “ De 1'exécution des décisions de la justice internationale,” 14 Revue de Droit International 225 (1934); United Nations Secretariat, Commentary on the Draft Convention on Arbitral Procedure, U.N. Doc. A/CN.4/92 at p. 92.

4 The best-known expositions of this principle are those of Sir Alexander Cockburn, the British Arbitrator in the Alabama Arbitration: “But while the award of the Tribunal appears to me to be open to these exceptions, I trust that it will be accepted by the British people … with the submission and respect which is due to the decision of a Tribunal by whose award it has freely consented to abide.” (The Alabama Claims, 4 Papers Relating to the Treaty of Washington of 1871, p. 544 (Foreign Relations of the United States, Vol. II, 1872)); and by the United States Government when in 1923 it paid Norway a large sum in settlement of an arbitral award, in view of “its devotion to the principle of arbitral settlement even in the face of decision proclaiming certain theories of law which it cannot accept.” 1 Reports of International Arbitral Awards 344. This was affirmed by the Permanent Court in the Société Commerciale de Belgique case (1939): “ If the awards are definitive and obligatory, it is certain that the Greek Government is bound to execute them and to do so as they stand: it cannot therefore claim to subordinate payment of the financial charge imposed upon it by the conditions of settlement of the Greek external debt, since that has not been admitted in the awards. Nor can it make the sacrifice of any right of the company recognized by the award a condition precedent to enforcement.” P.C.I.J., Ser. A/B, No. 78.

5 Art. 30 provides: ‘’ Once rendered the award shall be binding upon the parties. It shall be carried out immediately, unless the Tribunal has fixed a time limit within which it must be carried out in its entirety or partly . “ Model Rules on Arbitral Procedure adopted by the International Law Commission at its Tenth Session, General Assembly, 13th Sess., Official Records, Supp. No.9, p.7; 53 A.J.I.L. 239 (1959).

6 See 5 U.N. Repertory of Practice, Art. 94.

7 Balasko, Causes de Nullité de la Sentence Arbitrate (1938); Borel, “ Lesvoies de recours contre les sentences arbitrales,” 52 Hague Academy Recueil des Cours 5 (1933); Brachet, De l'exécution internationale des sentences arbitrales (1928); Carlston, The Process of International Arbitration (New York, 1946); De Lapradelle, “L'Excès de Pouvoir de l'Arbitre,” 29 Hague Academy Recueil des Cours 5 (1928); Dumas, Les Sanctions de l'Arbitrage international (1905); Goulran, Le problème des sanctions dans I’évolution de 1'arbitrage international (1925); Hambro, L'Exécution des Sentences Arbitrales (Liege, 1936); Markovitch, Du caractère définitif des sentences arbitrales (1937); Mérignhac, “ De l'autorité de la chose jugée en matière de sentence arbitrale,” 5 Revue générale de Droit international 606 (1898); Scelle, “Théorie et Pratique de la Fonction exécutive en Droit international,” 55 Hague Academy Rocueil des Cours 158 (1936); Stoykovitch, De l'autorité de la sentence arbitrale en droit international public (1924).

8 This classification can be traced back to the projet of 1875: “The arbitral award is void when the compromis is void, or when the Tribunal has exceeded its jurisdiction, or in the case of proved corruption of one of the arbitrators, or in the ease of essential error.” Annuaire de l'Institut de Droit International, Vol.1, p. 126 (1877). Art. 35 of the I.L.C. Model Rules on Arbitral Procedure allows nullity in three cases: ‘’ (a) That the tribunal has exceeded its powers; “ (b) That there was corruption on the part of a member of the tribunal; “ (c) That there has been a serious departure from a fundamental rule of procedure, including failure to state the reasons of the award.“(U.N. Doc. cited in note 5 above.)

9 The earliest leading case was the North eastern Frontier Dispute between Great Britain and the United States in 1831. The King of The Netherlands, as Arbitrator, was invited to draw the Maine-Nova Scotia boundary along one of two lines, according to the Treaty of 1783. When he chose an intermediate third line, the United States refused to accept on the ground of excess of power, but eventually settled in 1842 by treaty. 3 Hyde, International Law 1636 (2d ed., 1945). In the Pelletier Case (1885) an American citizen had been convicted by the courts of Haiti of slave trading in territorial waters, and sentenced to imprisonment. When the United States Government complained, an arbitration was instituted and the Arbitrator decided in favor of Pelletier, on the ground that the law of Haiti, assimilating the slave trade to piracy, was contrary to international law. Haiti protested the decision, asserting the Arbitrator erroneously assumed that Haitian law could not apply because the acts took place in an American ship. The Secretary of State (T.F.Bayard) shared the Haitian point of view and the award was not enforced. See references in 3 Hyde, op. cit. 1640, note 1, and 1641, note 4; 2 Moore, Digest and History of the International Arbitrations to which the United States has been a Party 1757 ff. (Washington, 1898). In the boundary dispute between Bolivia and Peru (1907), the Arbitrator (Argentina) was instructed to determine the ownership of the disputed territory according to the principle of uti possidetis as it existed in 1810; and if the available Spanish documents were not conclusive, the matter was to be settled equitably, in the spirit of such documents. Bolivia for a long time refused to comply, not only because she took the view that any decision which deprived her of so much territory could not be equitable, but also on the ground that there was excess of power. See Carlston, op. cit. note 7, at 160; Weiss, in 17 Revue Générale de Droit International 135 (1910). One of the best-known refusals to comply on the plea of lack of jurisdiction was the Bryan-Chamorro Treaty case in which the Central American Court of Justice held that the treaty made between Nicaragua and the United States had violated the rights of the plaintiff states, Costa Rica and El Salvador. After the plea of lack of jurisdiction, Nicaragua refused to comply, and the Central American Court was subsequently dissolved. See Hudson, International Tribunals 130, 131 (1944); Carlston, op. cit. note 7, at 117.

10 Impossibility was also specifically accepted as a ground for non-compliance with an earlier award in the German-Portuguese Arbitration of Feb. 16, 1933. That was held to determine whether an earlier reparations award (of June 30, 1930), in favor of Portugal, had still to be paid in view of the Dawes and Young Plans, restricting the payments to be made by Germany. The Arbitrators held that, by ratifying the New Plan, Portugal had forfeited any claim to be paid sums above and beyond what she might receive under the plan. 3 Rep. Int. Arb. Awards 1372 (1949). Judge Anzilotti in a separate opinion in the Oscar Chinn Case (1934), P.C.I.J., Ser. A/B, No. 63, p. 113, said: ‘’The situation would have been entirely different if the Belgian Government had been acting under the law of necessity, since necessity may excuse non-observance of international obligations. “The question whether the Belgian Government was acting, as the saying is, under the law of necessity is an issue of fact which would have had to be raised, if need be, and proved by the Belgian Government.“

11 See note 9 above. See also Corbett, Law and Society in the Relations of States 108 (1951). The United States has also failed to carry out another arbitral award in a boundary dispute: that with Mexico concerning the El Chamizal tract (decided in 1911), although the agreement stated the award would be “final and conclusive.” “Excess of jurisdiction” and “impossibility” were both asserted by the U. S. See Bishop, International Law Cases 297 (1951).

12 See especially: boundary dispute between Colombia and Venezuela, in which the compromis was made in September, 1881, appointing the King of Spain as Arbitrator. When his efforts were ignored, a further compromiswas made in 1916 and the Swiss Federal Council, as Arbitrator, gave a decision in 1922; boundary dispute between Costa Rica and Colombia, 1900, which was ultimately settled by revision; Andes boundary dispute between Chile and Argentina, 1902. Although many authorities, including Alvarez, claimed that nullity should apply, this decision was actually accepted by both parties; boundary dispute between Bolivia and Peru, 1907. See note 9 above.

13 3 Rep. Int. Arb. Awards 1660. See generally on this approach, De Visscher, Theory and Reality in Public International Law, Book IV (1957). See especially Morgenthau, Politics Among Nations 343 (1948): “ If there is to be arbitration, the object of the litigation must be real and sharply defined. If States are in conflict over a matter of general policy … especially if they are struggling for preponderance, they find it very difficult to submit their dispute to arbitration. Elements too complex and too diverse enter into these problems; man can hardly explain them even after history has solved them.“

14 Politis, New Aspects of International Law 66 (1928).

15 After the Albanian non-compliance in the Corfu Channel Case, there was a series of questions in the British Parliament. One exasperated M.P. at question time asked: “Will the Government on every possible occasion instruct the British people on the very small advantage of the references to the Hague Court? Is it not much better to face facts honestly and not live in a world of make believe?” But immediately after that, another M.P. expressed the pleasure that many felt that the Government had decided to try to solve the Anglo-Iranian Oil question at The Hague. 488 H.C. Deb. 981 (1951).

16 Hambro, L'Exécution des Sentences Internationales (Liège, 1936); Rosenne, The International Court of Justice, Ch. IV (1957).

17 Dumas, Les Sanctions de 1'Arbitrage international (1905); “Sanctions of International Arbitration,” 5 A.J.I.L. 934 (1911).

18 Security Council, 10th Year, Official Records, 703rd Meeting, par. 15, where the British referred to Albanian non-performance of the Corfu Channel Judgment as a reason against its admission to the United Nations.

19 Economic action by an aggrieved state is usually classified as retorsion.

20 For a history of the concession, the arbitration and the attempt to exert diplomatic pressure, see the statement by British Prime Minister Baldwin in the House of Commons on March 13, 1933. The Times (London), March 14, 1933, p. 8, col. 3. For a full account of the case and its settlement, see Nussbaum, , “The Arbitration between the Lena Goldfields, Ltd. and the Soviet Government,” 36 Cornell Law Review 31 (1950).Google Scholar

21 Dumas, op. cit. note 17 above, suggested this as one of the possible means of execution; it has also been dealt with by Rosenne, op. cit. note 16 above, on the basis of the British action on the Corfu Channel Judgment.

22 For example, the Peace Treaties of 1947 gave the Allies a right to retain enemy property situated in their territory, to liquidate such property and to apply the proceeds against the claims which they and their nationals had against the enemy country. See Fitzmaurice, , “The Juridical Clauses of the Peace Treaties,” 73 Hague Academy Recueil des Cours 324 ff. (1948)Google Scholar; Mann, , “Enemy Property and the Paris Peace Treaties,” 64 Law Quarterly Review 402 (1948)Google Scholar; see also Hyde, International Law 732, 736 ff. (2d ed., 1945).

23 See Domke, , ‘’ American Protection against Foreign Expropriation in the Light of the Suez Canal Crisis,” 105 Univ. of Pa. Law Review 1033, 1039 (1957).Google Scholar The blocked assets in Britain were estimated at about $420,000,000 and those in the United States at $50,000,000. See New York Times, March 2, 1957, pp. 1, 13.

24 See especially the statement of the British Foreign Secretary, Mr. Morrison, 488 H.C. Deb. 981 (1951).

25 148 British and Foreign State Papers 96 (1947) ; 40 A.J.I.L. Supp. 117 (1946).

26 I.C.J. Pleadings, Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States), at 127.

27 The United States registered the Washington Agreement with the United Nations on June 14, 1951, 91 U.N. Treaty Series, No. 1240. The accompanying statement had not been registered at the time of the hearings before the International Court, but was subsequently registered. I.C.J. Pleadings, op. cit. note 2, p. 174. It does appear in Brit. Parl. Papers, Cmd. 8242 (1950/51) and in 24 Dept. of State Bulletin 785, 786- 787 (1951).

28 ‘’ Besides, it would have been impossible for the three Governments to refer these questions and claims to the arbitrator for decision without going beyond the limits of their duty as fixed in the Act of Paris, for these claims for restitution of gold were not founded on the basis of Part III of the said Act of Paris. As possible disputes on this subject can only be settled by international—arbitral or judicial—proceedings, with the consent of the States concerned, the Statement to accompany publication of the Washington Agreement provides that they may give rise to special proceedings instituted in the International Court of Justice by Albania or by Italy, or by both, and the aforesaid Statement shall be deemed to be, for these proceedings and for the time determined in the Statement, an acceptance of the jurisdiction of the Court by the three Governments which made the Statement.'’ Quoted in the I.C.J. Pleadings, op. cit. note 2, at 135, 136; digested in 49 A.J.I.L. 403 (1955).

29 [1954] I.C.J. Rep. 19; digested in 48 A.J.I.L. 649 (1954).

30 I.C.J. Pleadings, op. cit. at 126.

31 Ibid, at 131.

32 Oliver, , “ The Monetary Gold Decision in Perspective,” 49 A.J.I.L. 216 (1955)Google Scholar.

33 Société commerciale de Belgique c. Etat hellénique et Banque de Grèce, Brussels Civil Tribunal (1951), 1953 Recueil Sirey Jurisprudence I, IV, 1; summarized in 47 A.J.I.L. 508 (1953).

34 See note by Freyria, Recueil Sirey, op. cit. above. With respect to this point, mention might be made of the provisions in the Treaty on the European Coal and Steel Authority and in the Treaty on the European Economic Community (Common Market) which provide for the enforcement of international decisions under municipal law without any formality other than certifying the authenticity of such decisions. These provisions, however, are applicable only in the case of decisions imposing financial obligations on enterprises or persons other than states. See Art. 92 of the Treaty on the European Coal and Steel Authority, 46 A.J.I.L. Supp. 146 (1952), and Art. 192 of the Treaty on the European Economic Community, 51 A.J.I.L. 923 (1957).

35 On the problem of sovereign immunity, see Seidl-Hohenveldern, ‘’ Commercial Arbitration and State Immunity,'’ International Trade Arbitration 87 (Domke, ed., New York, 1958). A recent example of the application of the traditional concept of sovereign immunity to attachment appears in Garnishment Proceedings Against Occupant (Austria) Case, 1952 Int. Law Rep., No. 44, where the District Court of Appeal of Vienna refused to allow a garnishment order to be served on the United States Government. Note also the reaction of the British Government to the Italian court order requiring the British Pavilion at the Venice Biennial Exhibition to be attached and sold. The Times (London), May 7, 1958, p. 10, col. 4; May 8, 1958, p. 8, col. 5. For the opposite view, see Federated People's Republic of Yugoslavia v. Kafr el Zayat Cotton Company (1951), where the Civil Tribunal of Alexandria, Egypt, was willing in principle to allow attachment against a foreign sovereign engaged in trade, but on the particular facts in the case refused it, since it violated a section in the Egyptian Code of Civil Procedure. For the United States, see U. S. Dept. of State “ Tate “ letter, 26 Dept. of State Bulletin 984-985 (1952); Rep. of China v. National City Bank, 348 U. S. 356 (1955); Claudy, ‘ ‘ The Tate Letter and the National City Bank Case,'’ 1958 Proceedings, American Society of International Law 80.

36 3 Hyde, International Law 1686 (2d rev. ed., 1945).

37 Thus the Porter Convention (The Hague, 1907) on limitation of force for recovery of debts stated that the undertaking not to resort to force was not applicable when the debtor state, “ after arbitration, fails to submit to the award.” 5 Hackworth, Digest of International Law 623 (1943).

38 6 A.J.I.L. 965 (1912).

39 Jessup, A Modern Law of Nations 157 et seq. (1948) ; cf. Art. 2 (3) of the Draft Code of Offenses against the Peace and Security of Mankind, prepared by the International Law Commission at its Sixth Session (U.N. General Assembly, 9th Sess., Official Records, Supp. No. 9 (A/2693), p. 11; 49 A.J.I.L. Supp. 21 (1955); E.J.Alfaro, “ La Question de la Définition de 1'Agression,” 29 Rev. de Droit. Int. 367, 374 (1951); Q. “Wright, “Intervention, 1956,” 51 A.J.I.L. 257 (1957).

40 Stone, Aggression and World Order 95-101 (1958).

41 Vulcan, “ L ‘Exécution des Décisions de la Cour International de Justice d'après la Charte des Nations Unies,” 51 Rev. Gén. de Droit Int. Pub. 192-195 (1947). After an examination of the Charter provisions, Vulcan came to the conclusion that: “Pour nous, done, un Etat Membre des Nations TJnies, qui voit que la décision judiciaire lui donnant gain de cause n'est pas exécutée par son adversaire, continue d'avoir la facultè d'employer la force contre celui-ci, afin d'obtenir exécution de la dite décision.“

42 See report of Committee I to Commission I at San Francisco Conference relating to Art. 2(4). 6 U.N.C.I.O. Docs. 459 (Doc. 944, p. 14). See particularly the summary report of the 11th Meeting of Comm. 1/1, Doc. 784, par. 7, loc. cit. 335.

43 [1949] I.C.J. Rep. 35; see article by Nasim Hasan Shah, 53 A.J.I.L. 595 at 600 (1959).

44 Schwarzenberger, Report to Int. Law Ass ‘n., 1958, on ‘’ Some Aspects of the Principle of Self-Defence,” p. 24.

45 See Bowett, D. W., Self-Defense in International Law (New York, 1958)Google Scholar, reviewed below, for an excellent treatment of the whole subject.

46 3 U.N.C.I.O. Docs. 336 (Belgium); pp. 233, 246 (Brazil); p. 421 (Ecuador); pp. 368-369 (Norway); pp. 208, 209, 211, 225, 229-230 (“Venezuela); 13 Hid. 507, 509, 522-523 (Cuba).

47 14 ibid. 209, 210, 853. See also Rosenne, The International Court of Justice 102- 103 (1957).

48 13 U.N.C.I.O. Docs. 459; 17 ibid. 97.

49 Rosenne, op. cit. 104.

50 This was a dispute which had arisen between Greece and Bulgaria concerning certain forests situated in Central Rhodopia. After an award had been rendered by the arbitrator appointed to deal with the dispute, Greece alleged that the Bulgarian Government had refused to carry out the award and requested that the question be placed on the agenda of the Council of the League with a view to the application of Art. 13 (4) of the Covenant. At the Council meeting, when the question was considered, an agreement was reached by the parties on the method of settlement, and there was no need for the Council to take action. See League of Nations Official Journal (1934), pp. 1432- 1433 and 1477.

51 13 U.N.C.I.O. Docs. 298.

52 The Advisory Committee of Jurists, after redrafting the proposed Art. 94(2) by inserting the words “ if it deems it necessary,” stated that “ this Article confers upon the Security Council certain functions of a substantive character” and directed the Secretary to refer the text to Committee III / 2 for its attention (17 U.N.C.I.O. Docs. 409). In the Co-ordination Committee, when the draft of Art. 94(2), as amended by the Committee of Jurists, was discussed, Mr. Golunsky, U.S.S.E., pointed out that the article “made a considerable change in the functions of the Security Council.” “Formerly,” he said, “ the Security Council had jurisdiction only in matters concerned with the maintenance of peace and security. This Article would give the Council authority to deal with matters which might have nothing to do with security.” (Ibid. 97.) An examination of the verbatim records shows that no objection was raised to the viewpoint that the authority conferred by the article on the Security Council extended to matters which might not relate to peace and security. It is to be pointed out, in this connection, that whether the failure of a party to comply with a decision of the Court creates a situation affecting international peace and security is a different question, on which the Security Council may decide in accordance with Chapter VI or VII of the Charter.

53 U. S. Senate, Committee on Foreign Relations, Hearings on the Charter of the United Nations, July, 1945, pp. 286-289.

54 Ibid. 286-287. The State Department representative, Dr. Pasvlosky, further stated that “ the Council is not a sheriff in the sense that the Council enforces the Court's decision when the Court asks it to enforce it . “ “The Council,” he said, “simply handles a political situation which arises out of the fact that the judgment of the Court is not being carried out by one of the parties.''

55 Vulcan, loc.cit. note 41, pp. 196-197.

56 See 5 Repertory of Practice of United Nations Organs 24-30; Repertoire of the Practice of the Security Council, 1946-1951, pp. 235-238.

57 See “Vulcan, loc. cit. note 41, pp. 196-197; G. Scelle, ‘ ‘ Théorie et pratique de la fonction exécutive en droit international,” 55 Hague Academy Recueil des Cours 160 (1936).

58 See Boss, Constitution of the United Nations 102-103 (1950); Bentwieh and Martin, A Commentary on the Charter of the United Nations 167-168 (1950); Kelsen, The Law of the United Nations 541-543 (1950); Sloan, “Enforcement of Arbitral Awards in International Agencies,” 3 Arbitration Journal 145 (1948).

59 Art. 41 reads as follows: ‘ ‘ The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Art. 42 reads as follows: “Should the Security Council consider that measures pro vided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.“

60 Art. 41 would not of course be invoked in a strict sense, but simply furnish a guide to the Council as to measures that might be appropriate.

61 Rosenne, op. cit. note 47, p. 106.

62 Vulcan, loc. cit. note 41, pp. 201-202; Kelsen, op. cit. 541, 543-544; Day, Le Droit de Veto dans l'O.N.U. 229 (Paris, 1952); Brugière, La Règle de l'Unanimité des Membres Permanents au Conseil de Sécurité 124 (Paris, 1952).

63 Kelsen, op. cit. note 58, p. 541; Sloan, loc. cit. note 58, p. 146.

64 U.N. General Assembly, Res. 267 ( III ) ; see also Report of the Interim Committee to the General Assembly (Jan. 5-Aug. 5, 1948), General Assembly, 3rd Sess., Official Records, Supp. No. 10, pp. 3 and 14.

65 Security Council, 6th Year, Official Records, 559th Meeting, par. 93.

66 Ibid., par. 94.

67 Ibid., 560th Meeting, pars. 59-62.

68 Ibid., 562nd Meeting, par. 38.

69 Rosenne, op. cit. note 47, p. 108.

70 15 U.N. Treaty Series 92 (Art. 33).

71 Ibid. 354 (Art. 88).

72 Ibid. 354 (Art. 87).

73 Treaty Establishing the European Coal and Steel Authority (Art. 88). 261 U.N. Treaty Series 221.