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Published online by Cambridge University Press: 21 May 2009
The Belgo-Spanish case concerning the Barcelona Traction, Light and Power Company, Ltd. (hereafter called Barcelona Traction), terminated in its preliminary phase by the Judgment of 24 July 1964, had had a prelude in 1958–1961, hence its official sub-title “New Application: 1962.” A corresponding action was in fact already instituted by a unilateral Belgian Application against Spain, dated 15 September 1958, filed on the following 23 September, but the proceedings thus initiated were discontinued by a unilateral communication addressed to the President of the Court by the Belgian Government on 23 March 1961, not opposed by the Spanish Government, and officially recorded by Order of the Court of 10 April 1961 (I.C.J. Reports 1961, p. 9).
1. Including two Judges ad hoc: Professor Ganshof van der Meersch of Brussels for Belgium, and the former Uruguayan Judge Armand Ugón for Spain.
2. There may have been in actual fact only three, always the same, to be found among the seven Judges who remained completely silent: Judges Winiarski, Badawi, Fitzmaurice, Nervo, Forster, Gros and Ganshof van der Meersch (ad hoc).
3. Judges can indeed be induced by different motives not to disclose their dissent, but it would be mere guesswork to attempt to identify these motives, and those induced by them, in concreto. Judges may be adversaries of the whole practice of stating individual dissents; others may feel that a full exposition of their individual opinion would require too much space and would unduly disturb the balance of the Judgment as a whole; Judges ad hoc may prefer to abstain from arguing, etcetera.
4. The text of the provision then in force (Article 61 of the Rules of 24 March 1922, unchanged by the alteration of 31 July 1926) ran simply as follows: “If the parties conclude an agreement regarding the settlement of the dispute and give written notice of such agreement to the Court before the close of the proceedings, the Court shall officially record the conclusion of the agreement. Should the parties by mutual agreement notify the Court in writing that they intend to break off proceedings, the Court shall officially record the fact and proceedings shall be terminated.”
It was only by the revision of 11 March 1936 that a separate Article was inserted regarding the case of proceedings instituted by a unilateral application.
5. In view of the abuse which is often made of the plea of the non-performance of such previous formalities, I, for one, would be inclined to go a step further and to say that there will be a number of cases in which the repetition of these formalities could, owing to their futility, be entirely dispensed with.
6. The only demande made by Belgium was, in fact, her official request to the President of the Court to notify the Court that she discontinued the proceedings.
7. On one occasion (p. 120 in fine) the English translation in its turn commits an error by reproducing his term “contrat judiciaire” by “legal contract.”
8. The Soviet Judge Koretskij rightly observes (p. 48/49) that a distinction between désistement d'action and désistement d'instance is unknown to the Rules of Court. He argues that discontinuance even by mutual agreement is not necessarily a pactum de non petendo, which supposes not only discontinuance of a given action but an obligation not to sue at all, which is tantamount to the abandonment of the claim, and he is satisfied that the documents show that the withdrawal, demanded of Belgium as a precondition for the opening of negotiations proper, related exclusively to the proceedings in course.
9. Comp. this Tijdschrift, vol. VII (1960), p. 1 and vol. IX (1962), p. 229et seq.Google Scholar
10. In his observations on the latest Judgment (p. 51) Vice-President Wellington Koo draws attention to the fact that the French text was a translation of an original text in English.
11. Comp. the Judgment in the Ambatielos case of 1 July 1952 (I.C.J. Reports, 1952, p. 28, at p. 39/40.Google Scholar). See also the South- West Africa cases (1962)Google Scholar and a casual phrase in the Advisory Opinion of 11 July 1950 concerning the International Status of South-West Africa (I.C.J. Reports 1950, p. 138).Google Scholar
12. At the time of writing I was still in doubt as to the standpoint of Judge Morelli on this issue, but after his dissenting opinion in the case under review there remains little doubt that he supports the controversial Judgment of 1959.
13. For a comparison I quote them both here. —Article 37 of the Statute of the Permanent Court: “When a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the League of Nations, the Court will be such tribunal.”—Article 37 of the Statute of the International Court: “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”
14. In order to prevent misunderstanding, I will in the following survey of Vice-President Wellington Koo's reasoning place between square brackets those parts which are not verbatim quotations, but summaries of my own of the official argumentation.
15. The Chinese Judge here, quite rightly, recalls the relevant passages in the Court's Advisory Opinion of 1949 concerning Reparation for injuries suffered in the service of the United Nations (I.C.J. Reports 1949, p. 185–186Google Scholar), referring to a similar case of competition, namely, between a State's right of diplomatic protection of its nationals and the Organization's right of functional protection of its officers: “In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense”.
16. On the question of the order to be followed in the examination of preliminary exceptions of various kinds, raised here by Judge Morelli, the Finnish Judge Erich has made some valuable remarks many years ago in his dissenting opinion in the Panevezys-Saldutiskis Railway case of 1938/9 (Publications P.C.I.J., series A/B, No. 76). I have commented upon them in my paper on “De Baltische Spoorweg-kwestie” in Nederlands Juristenblad 1939 p. 331 and 347 et seq., at p. 350.Google Scholar
